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https://www.courtlistener.com/api/rest/v3/opinions/2260607/ | 238 P.3d 357 (2010)
2010-NMCA-061
ARENA RESOURCES, INC., Plaintiff-Appellee,
v.
OBO, INC., Defendant-Appellant.
No. 29,241.
Court of Appeals of New Mexico.
March 30, 2010.
Cotton, Bledsoe, Tighe & Dawson, P.C., Matt Catalano, Susan Richardson, Midland, TX, for Appellee.
Davis, Gerald & Cremer, P.C., Robert P. Crumpler, Jr., Midland, TX, Reagan & Sanchez, P.A., Mark Terrence Sanchez, Hobbs, NM, for Appellant.
OPINION
SUTIN, Judge.
{1} This case involves a dispute between two of three working-interest owners in an oilfield called the Seven Rivers-Queen Unit (the unit) located in Lea County, New Mexico. The parties' relationships were governed by a unit agreement and a unit operating agreement. The operating-interest owner, Arena Resources, Inc. (Arena), redeveloped the unit and sought reimbursement from the other interest owners for the redevelopment expenses. Because Arena did not obtain approval from either of the two other interest owners as required under the parties' unit operating agreement, one of the other interest owners, OBO, Inc. (OBO), refused to pay *358 for expenses associated with the unauthorized project. Arena sued OBO. The district court concluded that although Arena breached one or both of the agreements and that OBO did not, the project ultimately benefitted the unit and based on unjust enrichment, OBO was obligated for its share of the costs. OBO appeals. We hold that the court erred, and we reverse.
BACKGROUND
{2} Arena, OBO, and the Evelyn Clay O'Hara Trust (the Trust) are the working-interest owners in the unit. Arena is the operator and owns about 71.1% participation or working interest in the unit. OBO owns about 25.8% and the Trust owns about 3.1% participation or working interest. The relationships of the working-interest owners are governed by a unit agreement and a unit operating agreement, both of which were effective as of January 1, 1973. In 2006 Arena sought the consent of the other working-interest owners to redevelop the unit by drilling new wells and by fracture stimulating some of the existing wells. The unit operating agreement required that any expenditures in excess of $15,000 be approved by the affirmative vote of at least two working-interest owners owning at least 70% of the voting interest. Arena proposed to redevelop the unit, and although OBO received various requests from Arena for consent to proceed with the redevelopment, OBO did not respond, did not sign any authorizations for expenditures in relation to the redevelopment, and did not agree to any expenditures in excess of $15,000.
{3} Arena initiated the redevelopment of the unit without having received consent from the other working-interest owners. Arena charged OBO's account for its proportionate share of the redevelopment expenses, just as it had done in its course of dealing with OBO before this redevelopment with respect to unit expenses. However, expenses exceeded revenues in OBO's account, and Arena demanded that OBO reimburse Arena for the claimed expenses owed which, at some point, amounted to approximately $1.8 million. OBO refused to pay, and this caused Arena to file a complaint and a second amended complaint against OBO claiming breach of the parties' agreements and seeking recovery of expenses and foreclosure on its contractual operator's lien against OBO's unit interest. The operative complaint averred that "[t]he lien may be enforced as a contractual lien, mortgage lien, constitutional lien, equitable lien, or any other lien afforded by the law and of the [S]tate of New Mexico." It also contained a general request for "all other proper relief available at law [or] in equity that the [c]ourt may be deemed just and proper in the matter." The complaint nowhere specifically indicated that Arena asserted a claim or sought recovery under or pursuant to any particular equitable doctrine or remedy.
{4} A little more than a month before trial, Arena moved for leave to file a third amended complaint based on new counsel's discovery that Arena had not raised a number of issues in its pleadings. Arena sought to add theories of ratification, affirmation, estoppel, cotenancy, and waiver. These theories were aimed at overcoming various positions OBO asserted in a motion for summary judgment. The court denied Arena's motion for leave to file a third amended complaint. One week after moving to amend, Arena filed its first supplemental responses and designation of witnesses. Arena sought in part to inject into the record theories it unsuccessfully sought to present through its proposed third amended complaint. When OBO objected to Arena's strategy, the court entered an order stating that Arena was precluded at trial from mentioning, referring to, arguing, and/or offering evidence on any matter, claim, count, and/or cause of action not included in Arena's second amended complaint. The court also disallowed Arena's witnesses designated as expert/fact witnesses. In the present appeal, Arena did not file a cross-appeal and does not otherwise claim on appeal that the court erred in the foregoing rulings.
{5} Other than the references in its second amended complaint to "equitable lien" and "equity" as quoted earlier in this opinion, nothing filed by Arena specifically mentioned that it was asserting or seeking an equitable claim or lien or remedy based on theories of unconscionable OBO conduct, unjust enrichment, *359 or unconscionable windfall or result. Furthermore, Arena does not indicate in its answer brief on appeal that it verbally asserted any such claim, right of recovery, remedy, or theory prior to or during trial. Arena's requested findings of fact and conclusions of law filed five days before trial made no mention whatsoever of equity, equitable lien or remedy, unconscionable OBO conduct, unjust enrichment, or unconscionable windfall or result.
{6} The trial appears to have left the district court in somewhat of a quandary as to how to evaluate the merits of Arena's claims, given the apparent circumstance that Arena unilaterally proceeded with its redevelopment project without the consent required in the unit operating agreement, yet also given the apparent circumstance that the project produced oil and gas, enhanced the unit, and netted favorable present and future revenue consequences. After having heard testimony and having received exhibits on the merits of the claims asserted in Arena's second amended complaint, the court asked counsel for "a bit of guidance as to the appropriate remedy in this matter."
{7} In responding to the court's request for guidance, Arena mentioned nothing expressly relating to any equitable claim, equitable lien or remedy, or any unconscionable conduct or unjust enrichment. The closest Arena came to possibly invoking equity was when it told the court that, if none of Arena's theories persuaded the court, it should at least "be allowed to recoup [its] expenses by netting until payout." Because of the uncertainty as to what was owed by or to it, OBO asked the court to order an accounting, including, in particular, Arena's attribution of revenue to expenses on the parties' joint account. OBO sought this relief under Rule 1-054(C) NMRA, pursuant to which OBO asserted that the court could "fashion a final judgment ... that affords the complete relief [in] the case." The court stated that it did not think there was any question that Arena did not have proper authorization to proceed but also stated that that did not mean OBO got free oil wells. The court indicated that it would order an accounting and would then "fashion a remedy once that's done whereby OBO pays its part of this ... project," stating further that "[n]either side is completely blameless in this matter." The court stated that OBO was "not going to get any free oil wells, and [they are] not [getting] free refraqs." Arena did not object to OBO's request for an accounting. At no time after the evidence was presented at trial did Arena move to amend its pleadings in any manner to conform to the evidence.
{8} Two days after trial, on March 12, 2008, the court entered its findings of fact and conclusions of law. The court concluded that Arena breached the unit agreement and/or the unit operating agreement when it failed to get the affirmative vote of either OBO or the Trust and then unilaterally embarked on the redevelopment program. The court further concluded that Arena breached the unit agreement and/or the unit operating agreement when it netted the additional expenses of the redevelopment project against OBO's interest in the revenue of the unit. The court denied Arena's breach of contract claim and Arena's claim seeking foreclosure of its operator's lien. The foregoing conclusions and determinations and the court's findings that support these conclusions and determinations are not the subject of a cross-appeal and are not otherwise attacked or challenged by Arena on appeal. At the same time, however, the court concluded that the unit had been improved, its oil and gas production had been increased, OBO's interest in the unit had been enhanced proportionately, OBO was not entitled to be unjustly enriched, and OBO had to pay its portion of Arena's redevelopment program from the production of the unit.
{9} The court also ordered an accounting to determine if OBO was entitled to a credit for any overpayments that may have been made. As for the status of the account without regard to the redevelopment issue, the court found that, historically, OBO was paying its share of unit operating expenses through "netting" by which the operator withheld and paid itself. The court also found that "[i]n some months, OBO's unit oil production revenue was insufficient to pay OBO's unit expenses.... In some months[,] it was sufficient and any excess was either *360 applied to OBO's unpaid unit expenses or remitted to OBO." The court rejected Arena's request for foreclosure of its operator's lien as to the alleged underpayments on the account because, although OBO may have been behind in payment on the account, the parties' business relationship constituted a course of dealing and Arena did not object to OBO's payment delinquencies until it filed its suit against OBO. Arena has not cross-appealed from the order for an accounting.
{10} The court's findings of fact and conclusions of law entered after trial contained the first mention by anyone in the proceedings of unjust enrichment. The court specifically concluded that OBO was not entitled to be unjustly enriched notwithstanding Arena's breach of the unit agreement and/or the unit operating agreement. This conclusion of unjust enrichment was based on findings and conclusions that Arena's redevelopment increased oil and gas production on the unit, improved the unit, and benefitted OBO's interest.
{11} Concerned about the foregoing findings and conclusions relating to unjust enrichment, OBO filed a motion for judgment arguing that Arena never asserted a claim in unjust enrichment; that the case was not tried on that theory; that equity could not be invoked inconsistent with the parties' express contract, absent an unconscionable result; and that there existed no findings of fact or evidence presented by Arena that supported the court's conclusion that OBO was unjustly enriched. In this motion for judgment and in a separate motion for consideration, OBO asked the court to consider the filed court-ordered accounting of the parties' account status and to award OBO a credit of approximately $2.2 million based on Arena's "netting... of unauthorized expenses from OBO's revenue interest on the [u]nit." In a response, Arena argued that its second amended complaint sought foreclosure of its operator's lien and included a general request for equitable relief and that the pleading satisfied any notice requirement and entitled the court to grant equitable relief based on unjust enrichment and an unconscionable windfall result.
{12} Following a hearing on the parties' motions for judgment, the court, on October 3, 2008, entered a judgment requiring Arena to repay approximately $1.8 million to OBO. However, shortly afterward, the court entered an amended judgment that awarded approximately $1.8 million to Arena on the same grounds as those contained in its findings of fact and conclusions of law, namely, that the unit had been improved, its oil and gas production had been increased by Arena's redevelopment program and investment, OBO's interest in the unit had been enhanced proportionately, and OBO was not entitled to be unjustly enriched. OBO's appeal from this amended judgment is now before this Court.
DISCUSSION
{13} The critical issue in this case as to whether the district court was permitted to exercise its equitable powers is a question of law. We review this issue de novo. Smith & Marrs, Inc. v. Osborn, 2008-NMCA-043, ¶ 19, 143 N.M. 684, 180 P.3d 1183. We hold that the district court in the present case was not permitted to exercise its equitable powers to grant relief under an unjust enrichment theory of recovery.
{14} Our Supreme Court has given us a scholarly recitation as to how to understand a claim seeking restitution based on unjust enrichment. "[R]estitution for unjust enrichment constitutes an independent basis for recovery in a civil-law action, analytically and historically distinct from the other two principal grounds for such liability, contract and tort." Hydro Conduit Corp. v. Kemble, 110 N.M. 173, 178, 793 P.2d 855, 860 (1990). "Restitution based on unjust enrichment ... is its sole preserve." Id. (internal quotation marks and citation omitted). Yet it "carries many labels, some of which may be analytically or theoretically distinct from others, but all of them having common root, at least historically, in the concept of an action sounding in contract." Id. In Hydro Conduit, in addressing whether a claim seeking restitution for unjust enrichment was a claim "based on contract" under a governmental immunity statute, the Court approved this description:
*361 Actions brought upon theories of unjust enrichment, quasi contract, contract implied in law, and quantum meruit are essentially the same. Courts frequently employ various terminology interchangeably to describe that class of implied obligations where, on the basis of justice and equity, the law will impose a contractual relationship between parties, regardless of their assent thereto.
Id. at 179, 793 P.2d at 861 (internal quotation marks and citation omitted).
{15} Our courts have indicated that restitution for unjust enrichment is equitable in nature. See Albuquerque Nat'l Bank v. Albuquerque Ranch Estates, Inc., 99 N.M. 95, 102, 654 P.2d 548, 555 (1982) (recognizing the availability of equity to prevent unjust enrichment), rejected on other grounds by J.R. Hale Contracting Co. v. United N.M. Bank at Albuquerque, 110 N.M. 712, 799 P.2d 581 (1990); Allsup v. Space, 69 N.M. 353, 362, 367 P.2d 531, 537 (1961) (recognizing the equitable nature of a claim for restitution). Furthermore, we recognize two types of equitable liens, one based on agreement, and the other constituting a "remedial device, used to enforce a right to restitution in order to prevent unjust enrichment." Title Guar. & Ins. Co. v. Campbell, 106 N.M. 272, 277, 742 P.2d 8, 13 (Ct.App.1987); see Caldwell v. Armstrong, 342 F.2d 485, 490 (10th Cir.1965) ("An equitable lien is a creature of equity, is based on the equitable doctrine of unjust enrichment, and is the right to have a fund or specific property applied to the payment of a particular debt.").
{16} OBO asserts that the court's invocation of an unjust enrichment theory of recovery was improper because the parties' relationships were governed by an express contract, the unit operating agreement, and that unjust enrichment, as an equitable claim, may only be invoked in the absence of an express contract or when grossly inequitable circumstances require it. OBO notes that, as stated in United Properties Ltd. v. Walgreen Properties, Inc., 2003-NMCA-140, ¶ 12, 134 N.M. 725, 82 P.3d 535, enforcement of an express contract is guided by "a long-standing backdrop of New Mexico law enforcing contractual obligations as they are written."
{17} We agree with OBO that the unit operating agreement was an express contract. We also agree that the contract was to be enforced as written in regard to contractual obligations of the parties unless the court determined that equity should override the express contract. "A court of equity ... is bound by a contract as the parties have made it and has no authority to substitute for it another and different agreement, and should afford relief only where obviously there is fraud, real hardship, oppression, mistake, unconscionable results, and the other grounds of righteousness, justice and morality." Id. ¶ 31 (internal quotation marks and citation omitted); Nearburg v. Yates Petroleum Corp., 1997-NMCA-069, ¶ 31, 123 N.M. 526, 943 P.2d 560 (stating that a court of equity should not interfere with a contract "unless the court concludes that the policy favoring freedom of contract ought to give way to one of the well-defined equitable exceptions, such as unconscionability, mistake, fraud, or illegality"); see Restatement (First) of Restitution § 107(1) (1937) ("A person of full capacity who, pursuant to a contract with another, has performed services or transferred property to the other or otherwise has conferred a benefit upon him, is not entitled to compensation therefor other than in accordance with the terms of such bargain, unless the transaction is rescinded for fraud, mistake, duress, undue influence or illegality, or unless the other has failed to perform his part of the bargain.").
{18} Arena's asserted claims were for breach of an express contract and to enforce a contractual lien right contained in the contract. In considering contract breach issues, Arena's contract claims backfired. The district court expressly determined that it was Arena that breached the contract and that Arena breached the contract in two separate ways. The court expressly determined that OBO did not breach the contract. The court entered no findings of fact or conclusions of law in regard either to overriding the policy favoring freedom of contract or to any well-defined equitable exception. Nor did the court enter a finding of fact or conclusion of *362 law relating to establishment or enforcement of an equitable lien and otherwise made no mention of such a remedy. The court gave no explanation as to why it believed that it had the authority to disregard the parties' contract and to rely on equity when, sua sponte, it injected the unjust enrichment theory of recovery into the case. See Harbison v. Clark, 59 N.M. 332, 336-37, 284 P.2d 219, 222 (1955) ("It requires no strained construction to hold that the defendant has pleaded an express agreement.... And it is the rule that one may not plead an express contract and recover on an implied one."). The district court nowhere mentioned the existence of evidence in the record to support the court's finding or evaluative judgment of "unjust," and we are not made aware of any such evidence. Further, the court entered no findings of fact that in any way supported its conclusion of unjust enrichment. The court supplied no basis for its invocation of the equitable unjust enrichment theory of recovery in the face of the parties' express contract. Further, to the extent that Arena asserts entitlement to an equitable lien, that remedy suffers from the same malady as Arena's unjust enrichment claimit cannot be pursued in the face of the parties' express contract.
{19} We reject Arena's implication that the court evidently based its determination on unconscionable conduct by OBO's refusing to consent, taking no risk, paying no expenses, and reaping the benefits. Again, the court made no findings in regard to any particular unconscionable conduct on OBO's part, and Arena's characterization of the evidence is disputed by OBO. We will not attempt to comb the record for all of the evidence bearing on this question, which is Arena's unperformed job, nor will we attempt to resolve what appears to be a disputed factual issue. Kilgore v. Fuji Heavy Indus. Ltd., 2009-NMCA-078, ¶ 45, 146 N.M. 698, 213 P.3d 1127 ("[W]e will not comb the record to find evidence to support a party's position on appeal."), cert. granted, 2009-NMCERT-007, 147 N.M. 363, 223 P.3d 360; Diaz v. McMahon, 112 N.M. 788, 791, 819 P.2d 1346, 1349 (Ct.App.1991) ("In reviewing an appeal from an order granting summary judgment, this [C]ourt does not resolve disputed issues of fact[.]"). "We are not obligated to search the record on a party's behalf to locate support for propositions a party advances or representations of counsel as to what occurred in the proceedings." Muse v. Muse, 2009-NMCA-003, ¶ 42, 145 N.M. 451, 200 P.3d 104 (filed 2008); Murken v. Solv-Ex Corp., 2005-NMCA-137, ¶ 14, 138 N.M. 653, 124 P.3d 1192 ("[W]e decline to review ... arguments to the extent that we would have to comb the record to do so."). Furthermore, Arena did not even submit requested findings of fact on this matter.
{20} Given that Arena is not entitled to recovery, an unanswered question is whether OBO is entitled to a credit to its account for the alleged unauthorized amounts charged against it by Arena. OBO requests this Court to remand with instructions to the district court to conduct further proceedings related to the accounting in order to grant OBO that relief. We render no opinion on whether OBO is entitled to such relief. However, we think it correct to remand for further proceedings to determine what relief, if any, is appropriate.
CONCLUSION
{21} The district court erred in invoking the unjust enrichment theory of recovery and in granting relief to Arena under that theory. We, therefore, reverse the court's amended judgment insofar as it grants relief to Arena, recites grounds for granting relief to Arena, or denies relief requested by OBO. We remand this case to the district court for further proceedings in connection with the accounting to determine whether OBO is entitled to relief and, if so, in what amount.
{22} IT IS SO ORDERED.
WE CONCUR: CYNTHIA A. FRY, Chief Judge and ROBERT E. ROBLES, Judge. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261133/ | 223 F.Supp. 967 (1963)
FARMINGTON DOWEL PRODUCTS CO., Plaintiff,
v.
FORSTER MFG. CO., Inc. and
Theodore R. Hodgkins, Defendants.
Civ. No. 7-73.
United States District Court D. Maine, S. D.
November 26, 1963.
*968 Philip S. Bird, Waterville, Me., C. Keefe Hurley, Earle C. Cooley, % Hale & Door, Boston, Mass., for plaintiff.
Joseph B. Campbell, Augusta, Me., Richard A. Tilden, New York City, for defendants.
GIGNOUX, District Judge.
This is a private action brought pursuant to Section 4 of the Clayton Act, 15 U.S.C. § 15, to recover treble damages for alleged violations of Section 2 of the Sherman Act, 15 U.S.C. § 2, and Section 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. § 13 (a). The complaint was filed on February 23, 1962 and amended on July 11, 1962. The amended complaint charges that defendants have violated the antitrust laws by attempting to monopolize and monopolizing the interstate trade in wooden skewers, and by engaging in discriminatory pricing practices, the effect of which was substantially to lessen competition and to tend to create a monopoly in the wooden skewer business in the United States. The amended complaint alleges a number of specific acts, policies and practices instituted by defendants in furtherance of these unlawful purposes, commencing in May, 1954 and culminating on February 28, 1958, when plaintiff was forced out of business.
On November 9, 1962 this Court entered an order granting defendants' motion for summary judgment "with respect to any causes of action which may have accrued prior to February 23, 1958," four years prior to the date plaintiff's original complaint was filed. The basis of the Court's order was the four year statute of limitations in Section 4B of the Clayton Act, 15 U.S.C. § 15b, which provides that "any action to enforce any cause of action under sections 15 or 15a of this title shall be forever barred unless commenced within four years after the cause of action accrued. * * *"
There is now before the Court plaintiff's motion for amendment of the order of November 9, 1962 so as to deny defendants' motion for summary judgment in its entirety. In support of its present motion, plaintiff asserts that the running of the statute of limitations against it was tolled by Section 5(b) of the Clayton Act, 15 U.S.C. § 16(b), during the pendency of a Federal Trade Commission proceeding which was instituted by a Commission complaint filed on July 23, 1958 charging defendants with substantially the same violations of Section 2(a) of the Clayton Act as charged in the present action. This proceeding resulted in *969 the issuance by the Commission of a cease and desist order on March 23, 1963.[1] Section 5(b) of the Clayton Act provides for the tolling of the statute of limitations in respect of private rights of action under the antitrust laws as follows:
"(b) Whenever any civil or criminal proceeding is instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws, but not including an action under section 15a of this title, the running of the statute of limitations in respect of every private right of action arising under said laws and based in whole or in part on any matter complained of in said proceeding shall be suspended during the pendency thereof and for one year thereafter: Provided, however, That whenever the running of the statute of limitations in respect of a cause of action arising under section 15 of this title is suspended hereunder, any action to enforce such cause of action shall be forever barred unless commenced either within the period of suspension or within four years after the cause of action accrued."
The sole question raised by the present motion is the applicability of Section 5 (b) of the Clayton Act to the Federal Trade Commission proceeding against these defendants. If the Commission proceeding comes within the meaning of Section 5(b), the running of the statute of limitations against plaintiff was tolled, as to any matter complained of therein, as of July 23, 1958. Since the complaint in this case was filed on February 23, 1962, which was during the pendency of the Commission proceedings, this action would then be timely as to any cause of action which accrued on or subsequent to July 23, 1954. Defendants contend that Section 5(b) is not applicable in the case of a Federal Trade Commission proceeding, because such a proceeding is not a "* * * civil or criminal proceeding * * * instituted by the United States to prevent, restrain, or punish violations of * * * the antitrust laws * * *" within the meaning of the statute. They argue that the quoted language refers only to a judicial proceeding brought by the Antitrust Division of the Department of Justice, and not to an administrative proceeding instituted by the Federal Trade Commission. They point to the familiar distinction between judicial and administrative proceedings, and urge that the plain meaning of the language of the statute and its legislative history clearly show that Congress could not have intended a Commission proceeding to have the effect of tolling the statute of limitations as provided in Section 5(b). Plaintiff meets defendants' argument by pointing out that the Federal Trade Commission and the Department of Justice have concurrent jurisdiction over violations of various sections of the Clayton Act, including Section 2(a) of that Act. See Sections 11 and 15 of the Clayton Act, 15 U.S.C. §§ 21, 25. Plaintiff's position is that it would be wholly illogical to assume that Congress intended that a plaintiff's rights under Section 5(b) should depend upon the fortuitous circumstance of which branch of the federal government initiated the proceeding.
There are no controlling decisions as to whether or not Section 5(b) of the Clayton Act is applicable in the case of a Federal Trade Commission proceeding, although within the last nine months at least two federal district courts have ruled on the precise question, reaching opposite results. In New Jersey Wood Finishing Co. v. Minnesota Mining and Manufacturing Co., 216 F.Supp. 507 (D.C.N.J. Apr. 19, 1963), upon which plaintiff relies in support of its motion, the court held that Section 5(b) was applicable and effective to toll the statute of limitations in a private treble damage suit during the pendency of a Federal Trade Commission proceeding. In Highland Supply Corp. v. Reynolds Metals Co., 221 F.Supp. 15 (E.D.Mo. Aug. 21, *970 1963), upon which defendants rely, the court held that Section 5(b) was not applicable and did not operate to toll the statute of limitations in a private antitrust suit during the pendency of a Commission proceeding.[2] Apart from these two very recent decisions (from both of which appeals are pending), all of the cases which have been called to the Court's attention construing the tolling provisions of Section 5(b) have involved prior Department of Justice proceedings.
The precise question for decision is whether, by the use of the phrase "any civil or criminal proceeding * * * instituted by the United States to prevent, restrain, or punish violations of * * * the antitrust laws" in Section 5(b) of the Clayton Act, Congress intended to include a proceeding initiated by the Federal Trade Commission. In the view of this Court, the language used by Congress, taken in its ordinary and natural sense, argues against such a conclusion, and a consideration of the policy intended to be served by the statute, its legislative history, and other usual aids to statutory construction all support the view that Congress did not use the words in the sense for which plaintiff contends.
While the Court is presently concerned only with the tolling provisions of Section 5(b), that subsection must be construed in context with the companion provisions of Section 5(a), 15 U.S.C. § 16(a), by which a "final judgment or decree * * in any civil or criminal proceeding brought by or on behalf of the United States under the antitrust laws" is admissible as prima facie evidence in a private treble damage action.[3] Union Carbide and Carbon Corp. v. Nisley, 300 F.2d 561, 569 (10th Cir. 1961); Sun Theatre Corp. v. RKO Radio Pictures, Inc., 213 F.2d 284, 290 (7th Cir. 1954); Fifth & Walnut, Inc. v. Loew's Inc., 176 F.2d 587, 593 (2d Cir. 1949); Samuel Goldwyn Productions, Inc. v. Fox West Coast Theatres Corp., 146 F.Supp. 905, 908 (N.D.Cal.1956). Although there may be several respects in which the prima facie evidence provisions and the tolling provisions of Section 5 are not co-extensive,[4] the presently relevant language of the two subsections is substantially identical,[5] and the suggestion that Section 5(b) is applicable in the case of a Federal Trade Commission proceeding, even though Section 5(a) is not, seems patently untenable.[6] See Butler, Application *971 and Constitutionality of Tolling of Statute of Limitations Provisions of Section 5, Clayton Act, In Cases of Dual Enforcement Jurisdiction, 8 ABA Antitrust Section 42, 47 (1956). Such a view is also wholly inconsistent with what this Court believes to be the evident purpose of the tolling provision, which is to suspend the statute of limitations in order that private litigants may obtain the benefit of the court decree in the government litigation. See Butler, id. at 47, 50; cf. Charles Rubenstein, Inc. v. Columbia Pictures Corp., 154 F.Supp. 216, 218 (D.C.Minn.1957), aff'd, 289 F. 2d 418 (8th Cir. 1961).[7] In sum, every normal principle of statutory interpretation indicates that, as two consecutive paragraphs of the same statute, in which essentially the same language is used, Sections 5(a) and 5(b) are complementary, and that the tolling provisions of the latter are keyed to, and, at least in this respect, no broader than, the prima facie evidence provisions of the former. This conclusion is in accord with the view of Judge Wyzanski, an eminent authority on the antitrust laws:
"Since judgments there could not serve as prima facie evidence here, those proceedings cannot toll the statute of limitations for the benefit of the plaintiff. This is clear from the juxtaposition of the two paragraphs which together constitute Section 5 of the Clayton Act." Momand v. Universal Film Exchange, 43 F.Supp. 996, 1012 (D.C.Mass. 1942), aff'd, 172 F.2d 37 (1st Cir. 1948), cert. denied, 336 U.S. 967, 69 S.Ct. 939, 93 L.Ed. 1118 (1949).
It is also consistent with the cases which have held, almost without exception, that the tolling provisions of Section 5(b) are inapplicable to parties not defendants in the prior government antitrust proceedings, against whom the decree in the government suit would not be admissible as prima facie evidence under Section 5 (a). Sun Theatre Corp. v. RKO Radio Pictures, Inc., 213 F.2d 284 (7th Cir. 1954); Samuel Goldwyn Productions, Inc. v. Fox West Coast Theatres Corp., 146 F.Supp. 905 (N.D.Cal.1956); Momand v. Universal Film Exchange, supra.
The words "civil or criminal proceeding" first appear in the 1955 amendment of Section 5 of the Clayton Act, 69 Stat. 283 (1955), at which time they replaced the words "suit or proceeding in equity" and "criminal prosecution" as they had appeared in both paragraphs of Section 5 of the Clayton Act as originally enacted in 1914, 38 Stat. 731 (1914).[8] The committee *972 reports on the 1955 amendment (which established a uniform four year statute of limitations and permitted the United States to bring actions for damages) make no mention of this change in language. H.R.Rep.No.422, 84th Cong., 1st Sess. (1955); S.Rep.No.619, 84th Cong., 1st Sess. (1955), U.S.Code Congressional and Administrative News 1955, p. 2328. As there is no indication in the relevant legislative history that Congress intended any substantive change by the substitution of these words, the reasonable conclusion is that Congress merely changed the language to conform to that of the Federal Rules of Civil Procedure, which abolished the procedural distinctions between actions at law and suits or proceedings in equity,[9] and the Federal Rules of Criminal Procedure, which speak of "criminal proceedings."[10] See Butler, supra, 46. The pertinent inquiry, therefore, is whether by the use of the words "suit or proceeding in equity" and "criminal prosecution" in Section 5 of the original Clayton Act, Congress intended to include a Federal Trade Commission proceeding.
A close scrutiny of the language of Section 5 as originally enacted indicates that Congress did not intend that a proceeding instituted by the Federal Trade Commission should either give rise to prima facie evidence or toll the statute of limitations in a subsequent private treble damage action. It is, of course, clear that a Federal Trade Commission proceeding is not a "criminal prosecution." If there were any doubt as to this, it was laid to rest by Federal Trade Commission v. Cement Institute, 333 U.S. 683, 706, 68 S.Ct. 793, 806, 92 L.Ed. 1010 (1948), where the Court said:
"(R)ules which bar certain types of evidence in criminal or quasi-criminal cases are not controlling in proceedings * * * where the effect of the Commission's order is not to punish or fasten liability on respondents for past conduct but to ban specific practices for the future * * *."
It appears equally clear that a Federal Trade Commission proceeding is not a "suit or proceeding in equity" as those words must have been contemplated by members of Congress in 1914. Not only would such a construction require an extremely strained interpretation of those words, but, as at least one distinguished commentator has pointed out:
"It seems inconceivable * * * that in 1914, when the Commission was established and when this expression was used in the enactment of the Clayton Act, any member of the Congress equated the administrative functions to be performed by the Federal Trade Commission with judicial proceedings. At that time, careful distinctions were preserved in federal courts between their jurisdiction in law actions and suits in equity, and it stands to reason that the expression `suit or proceeding in equity' was used solely to distinguish between court actions, on the law or equity side of the court docket." See Butler, supra, 46.
That the Federal Trade Commission is not a court of equity was recognized in Federal Trade Commission v. Eastman *973 Kodak Co., 274 U.S. 619, 623, 47 S.Ct. 688, 689, 71 L.Ed. 1238 (1927):
"The Commission exercises only the administrative functions delegated to it by the Act, not judicial powers. * * * It has not been delegated the authority of a court of equity."
It also seems significant that Congress used the phrase "judgment or decree" in the original Clayton Act, and that this language was left unchanged by the 1955 amendment. The Federal Trade Commission does not render a "judgment or decree." Its authority is limited to that of issuing a cease and desist "order" to curb violations of the antitrust laws. Clayton Act, § 11, 15 U.S.C. § 21. It seems reasonable to assume that if Congress had intended by the substitution of the words "civil or criminal proceeding" in the 1955 amendment of the Clayton Act to include a Federal Trade Commission proceeding, it would have amended the phrase "judgment or decree" to include an administrative "order." See Butler, supra, 47.[11]
The overwhelming impression one forms after reading the legislative history of the original Clayton Act is that none of the members of Congress in 1914 contemplated that Federal Trade Commission proceedings were within the purview of Section 5. Excerpts from the committee reports and Congressional debates are distinctly judicial in tone.[12] Although the Federal Trade Commission Act, 38 Stat. 717 (1914), and the Clayton Act were debated at the same session of Congress, there is not a single suggestion that Section 5 might be applicable in the case of a Federal Trade Commission proceeding. It is a reasonable assumption that at the time of the creation of the Federal Trade Commission, most Congressmen probably did not identify the administrative functions of the Commission with the judicial functions of the courts. In short, while it is difficult to discern a specific intent among the members of Congress in 1914 with respect to the applicability of Section 5 to Federal Trade Commission proceedings, the fact that the relevant legislative history is replete with references to judicial proceedings, and contains no mention of Commission proceedings, is a persuasive indication that there was no intention that the latter should generate Section 5 benefits.
Although Section 5 of the Clayton Act has been in effect for 49 years, counsel have called to the Court's attention no case, prior to 1963, in which a plaintiff has even attempted to assert that a Federal Trade Commission proceeding tolled the statute of limitations in a private antitrust action under Section 5(b). In such circumstances, the observation of Mr. Justice Frankfurter in Federal Trade Commission v. Bunte Bros., 312 U.S. 349, 352, 61 S.Ct. 580, 582, 85 L.Ed. 881 (1941), is pertinent:
"(J)ust as established practice may shed light on the extent of power *974 conveyed by general statutory language, so the want of assertion of power by those who presumably would be alert to exercise it, is equally significant in determining whether such power was actually conferred."
Accord, United States v. Cooper Corp., 312 U.S. 600, 613-14, 61 S.Ct. 742, 747-748, 85 L.Ed. 1071 (1941).
The combined research of the Court and counsel has failed to disclose any case in which a Federal Trade Commission order has been admitted under Section 5 (a) as prima facie evidence in a private action. While the reports are virtually devoid of any direct judicial expressions of opinion on the question of whether Section 5(a) is applicable to a Federal Trade Commission order, in United States v. United Shoe Machinery Corp., 89 F.Supp. 349, 356 (D.C.Mass.1950), Judge Wyzanski stated, "The Commission's cease and desist order may in many cases be as drastic as the decree of a District Court, except for the one point that the District Court's decree unlike the Commission's order can be used as prima facie evidence in a private treble damage suit. * * *" And at least two other courts have expressed substantial doubts on the question. See Proper v. John Bene & Sons, supra note 12, at 295 Fed. 732. ("There is grave doubt whether the proceedings before the Commission is a proceeding in equity."); International Tag & Salesbook Co. v. American Salesbook Co., 6 F.R.D. 45, 48 (S.D. N.Y.1943) ("Assuming that a proceeding before the Federal Trade Commission comes within the purview of this section [Section 5(a)], which I doubt, * * *"). The commentators, apparently without exception, concur with Judge Wyzanski's conclusion. See Butler, supra, 44-47; Toulmin, Antitrust Laws § 17.3 (1949 ed.); Beer, Federal Trade Law and Practice § 143 (1942); Kronstein & Miller, Regulation of Trade § 1106 (1953); CCH 1963 Trade Regulation Reporter para. 9157; Note, 65 Harv. L.Rev. 1400, 1402 (1952).
The only case from which a contrary inference might be drawn is Brunswick-Balke-Collender Co. v. American Bowling & Billiard Corp., 150 F.2d 69 (2d Cir. 1945), cert. denied, 326 U.S. 757, 66 S.Ct. 99, 90 L.Ed. 455 (1945), in which the majority of the court apparently thought, but did not explicitly state, that a Federal Trade Commission order came within Section 5(a). However, this majority opinion was subsequently withdrawn, and the court ultimately held, per curiam, that the Federal Trade Commission order involved was not admissible because it was not a final order under Section 10 of the Clayton Act as it then existed. The separate opinion of Judge Evans, dissenting from the original majority opinion, contains the only direct discussion by the court of the question of whether a Federal Trade Commission proceeding comes within the statute:
"It seems to me the order of the Commission, final though it may be, is not the kind of an order described by said Section 5. It is not a `final judgment or decree rendered in any criminal prosecution.' Neither is it a `final judgment * * * in any suit or proceeding in equity brought by or on behalf of the United States under the anti-trust laws.' * * *
"Aside from these authorities it seems tolerably plain to me that the quoted portion of Section 5 of the Clayton Act does not apply to an order of the Federal Trade Commission."
As has been previously indicated, this Court agrees with this view.
For the reasons stated, the Court holds that Section 5(b) of the Clayton Act is not applicable to Federal Trade Commission proceedings, and that therefore the running of the statute of limitations against plaintiff in this action was not tolled during the pendency of the Federal Trade Commission proceeding against these defendants.
It is accordingly ORDERED that plaintiff's motion for amendment of the *975 Court's order of November 9, 1962 be, and it hereby is, DENIED.
In accordance with the provisions of 28 U.S.C. § 1292(b), the Court hereby certifies that it is of the opinion that this order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.
NOTES
[1] Defendants' appeal from the Commission's order is presently pending before the United States Court of Appeals for the First Circuit.
[2] There is an unreported decision to the same effect by Chief Judge Taylor of the United States District Court for the Eastern District of Tennessee in Volasco Products Co. v. Lloyd A. Fry Roofing Co., 223 F.Supp. 112 (E.D.Tenn. June 19, 1963).
[3] Section 5(a) provides as follows:
"(a) A final judgment or decree heretofore or hereafter rendered in any civil or criminal proceeding brought by or on behalf of the United States under the antitrust laws to the effect that a defendant has violated said laws shall be prima facie evidence against such defendant in any action or proceeding brought by any other party against such defendant under said laws or by the United States under section 15a of this title, as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto: Provided, That this section shall not apply to consent judgments or decrees entered before any testimony has been taken or to judgments or decrees entered in actions under section 15a of this title."
[4] For example, the government decree may be used in evidence only "as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto." The tolling provision, on the other hand, applies to every right of action "based in whole or in part on any matter complained of" in the government proceeding. See Union Carbide and Carbon Corp. v. Nisley, 300 F.2d 561 (10th Cir. 1961).
[5] Compare "any civil or criminal proceeding brought by or on behalf of the United States under the antitrust laws" (Section 5(a)), with "any civil or criminal proceeding * * * instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws" (Section 5(b)).
[6] See Schooler v. United States, 231 F. 2d 560, 563 (8th Cir. 1956): "In the absence of anything in the statute clearly indicating an intention to the contrary, where the same word or phrase is used in different parts of a statute, it will be presumed to be used in the same sense throughout; and, where its meaning in one instance is clear, this meaning will be attached to it elsewhere * * *."
[7] This Court can find nothing in the legislative history to support the view that Congress also intended by Section 5(b) to allow private antitrust litigants an opportunity, which might otherwise be barred by the statute of limitations, to take advantage of facts uncovered in related government proceedings, even though the decree in such proceedings might not be admissible as prima facie evidence in the private action under Section 5(a). See New Jersey Wood Finishing Co. v. Minnesota Mining and Manufacturing Co., supra, 216 F.Supp. 510. Nor does this Court read the language of the court in Union Carbide and Carbon Corp. v. Nisley, supra, 300 F.2d 569, upon which plaintiff relies, as suggesting that the purpose of the tolling provisions of Section 5(b) is other than that of assuring to private litigants the intended benefits of the prima facie evidence provisions of Section 5(a).
[8] As originally enacted in 1914, Section 5 read:
"SEC. 5. That a final judgment or decree hereafter rendered in any criminal prosecution or in any suit or proceeding in equity brought by or on behalf of the United States under the antitrust laws to the effect that a defendant has violated said laws shall be prima facie evidence against such defendant in any suit or proceeding brought by any other party against such defendant under said laws as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto: Provided, This section shall not apply to consent judgments or decrees entered before any testimony has been taken: Provided further, This section shall not apply to consent judgments or decrees rendered in criminal proceedings or suits in equity, now pending, in which the taking of testimony has been commenced but has not been concluded, provided such judgments or decrees are rendered before any further testimony is taken.
"Whenever any suit or proceeding in equity or criminal prosecution is instituted by the United States to prevent, restrain or punish violations of any of the antitrust laws, the running of the statute of limitations in respect of each and every private right of action arising under said laws and based in whole or in part on any matter complained of in said suit or proceeding shall be suspended during the pendency thereof."
[9] See Fed.R.Civ.P. 2: "There shall be one form of action to be known as `civil action'".
[10] See Fed.R.Crim.P. 1: "These rules govern the procedure in the courts of the United States * * * in all criminal proceedings * * *."
[11] Defendants also argue strenuously that a Federal Trade Commission proceeding is not "instituted by the United States" or even "brought by or on behalf of the United States" within the meaning of Section 5. Cf. United States v. Interstate Commerce Commission, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451 (1949). See Proper v. John Bene & Sons, 295 Fed. 729, 732 (E.D.N.Y.1923). But see New Jersey Wood Finishing Co. v. Minnesota Mining and Manufacturing Co., supra; and Highland Supply Corp. v. Reynolds Metals Co., supra. This Court expresses no view on this question.
[12] H.R.Rep. 627, 63rd Cong., 2d Sess. (1914); S.Rep. 698, 63rd Cong., 2d Sess. (1914); 51 Cong.Rec. 9073, 9079, 9198, 9489-95, 13849-58, XXXXX-XXX, 15823-25, 15938-40, 16046 (1914).
A typical statement is that of Rep. Floyd, a co-author of the bill, who said: "We are not giving to that decree [in the Government action] any element or quality except such as attaches to every other decree. A decree or judgment of a court of record imports upon its face absolute verity. Such decree is binding upon all parties to the suit, and cannot be attacked collaterally. What we are attempting to do in this case is to apply that decree, with its usual effect, with its usual force, in another suit wherein one of the parties was not a party to the original suit." 51 Cong.Rec. 9489 (1914). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261138/ | 223 F.Supp. 869 (1963)
UNITED STATES of America, Plaintiff,
v.
Leaun A. HARRELSON, Defendant.
Cr. No. 39651.
United States District Court E. D. Michigan, S. D.
September 24, 1963.
*870 Lawrence Gubow, Detroit, Mich., for the United States.
James E. Haggerty, Detroit, Mich., James C. Daner, Mt. Clemens, Mich., for defendant.
KAESS, District Judge.
The defendant's motion for judgment of acquittal has been taken under advisement under Rule 29(b), in order to permit further study of two questions:
1. Whether an appropriation to the defendant's personal advantage is an element of the offense of embezzlement, and
2. Whether a showing that the defendant caused a check to be drawn on a union account and given to another to provide funds for political purposes, with knowledge that such a disbursement was unauthorized, would be sufficient to support a conviction under the language "convert to the use of another."
A review of the authorities has convinced the court that the phrase "to his own use," which appears in many definitions of embezzlement, does not require a showing that the appropriation was to the personal advantage of the defendant, but serves to distinguish the uses of the property upon which it was entrusted. Thus, in this context, "to his own use" means simply "not to the use of the entruster." Cf. Hubbard v. United States, 9 Cir., 79 F.2d 850.
While the testimony of the Government's witnesses was not entirely consistent, it was for the jury to determine credibility and to draw inferences of fact. The evidence was sufficient to sustain inferences that the defendant had caused checks to be drawn on the account of Local 614, payable to Croteau, had picked them up and delivered them to Croteau, and had concealed their purpose by having false receipts prepared and entered in the union records.
The conversion need not be viewed as occurring solely at the time the defendant handed the check to Croteau. It consisted in the use of union funds for political purposes with knowledge that such use was unauthorized and with the intent to deprive the union of its use of the funds. That this was accomplished in an indirect manner does not place the defendant beyond the reach of the statute for the intent of Congress was to hold officers of labor organizations strictly to their responsibilities as fiduciaries for the funds entrusted to them. *871 The criminal provision, in broad terms, applies to "any person who embezzles * * * or unlawfully and willfully * * * converts to * * * the use of another, any of the moneys, funds, securities, property, or other assets of a labor organization of which he is an officer * * *, directly or indirectly." 29 U.S.C. § 501(c).
It is ordered that the defendant's motion for judgment of acquittal be denied.
It is further ordered that the defendant report to the Probation Department for a pre-sentence report. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315322/ | CITY OF ASHEVILLE, Petitioner,
v.
WILLIAM HUSKEY, Respondent.
No. COA09-1237.
Court of Appeals of North Carolina.
Filed May 18, 2010.
City of Asheville, by Assistant City Attorneys Curtis W. Euler and Kelly L. Whitlock, for Petitioner-Appellant.
The John C. Hunter Law Firm, PLLC, by John C. Hunter and Robert C. Carpenter, for Respondent-Appellee.
UNPUBLISHED OPINION
BEASLEY, Judge.
The City of Asheville (Petitioner or City) appeals the trial court's order dismissing its Petition for Trial (Petition) upon motion by William Huskey (Respondent). We reverse.
On 2 September 2008, Petitioner terminated Respondent from his employment with the City. Pursuant to Petitioner's personnel code, Respondent appealed his termination before the five-member Civil Service Board (Board). The North Carolina General Assembly created the Board in its enactment of the Asheville Civil Service Act (Civil Service Act or Act) to perform various specified duties "with respect to the classified service of the City." 1999 N.C. Sess. Laws ch. 303, § 1. Specifically, the Civil Service Act, as amended, provides:
Whenever any member of the classified service of the City is discharged, suspended, reduced in rank, transferred against his or her will, or is denied any promotion or raise in pay which he or she would be entitled to, that member shall be entitled to a hearing before the Civil Service Board to determine whether or not the action complained of is justified.
Id. at § 8(a).
Pre-hearing matters were addressed in November 2008, at which time Respondent learned that the City Attorney's office had issued subpoenas to compel the attendance of certain witnesses at the hearing. Respondent believed that the grievance provisions of the Civil Service Act do not confer the subpoena power upon the Board, the City, or the employee. The Board's attorney, William F. Slawter, reviewed the Act for clarification of the subpoena issue and opined to counsel for both parties and the Board that the Board lacks authority to cause the issuance of subpoenas in connection with the grievance process outlined by § 8 of the Civil Service Act. It also appeared to Slawter that the Board was therefore powerless to challenge the subpoenas at issue or render them invalid.
On 18 March 2009, the grievance hearing was conducted before the Board for a determination as to whether Respondent's termination was justified. At that time, Respondent learned that Petitioner had not withdrawn the previously issued subpoenas. Slawter clarified his opinion as to the Board's lack of authority to either issue or quash subpoenas in the context of a grievance hearing under § 8 of the Civil Service Act. He acknowledged that the Act did not provide a manner by which witnesses could be compelled to or prohibited from testifying and suggested, as one possible avenue, that the parties might bring an action in superior court for the issuance or quashing of subpoenas. Accordingly, Slawter suggested that it would not seem to be within the Board's jurisdiction to tell witnesses they could not testify because the other party objects to the manner by which their appearance was requested. Therefore, the Board determined that it would allow the witnesses to testify but, for the record, have them state the manner by which they were selected to appear at the hearing in order to preserve the issue for appeal.
The hearing was continued to 25 March 2009, and the Board held that Petitioner was not justified in terminating Respondent and reversed the City's action. Board member Sidney Bach gave an oral ruling and read the Board's findings into the record at approximately 11:45 p.m. on 25 March 2009. The two attorneys for Petitioner and Lisa Roth, the human resources director for the City and the Board's secretary, were all present when the Board announced its determination. The chairman of the Board asked Slawter to explain the remainder of the decision-making process. Slawter responded that "[t]he decision as Mr. Bach read into the record will become the decision of the Board." He confirmed that the Board had five (5) days within which to reduce the oral ruling to writing, that he would prepare the written decision for the chairman's signature, and that he would remit it to the human resources office for distribution to the parties in five days.
The Board's decision was reduced to writing and signed by the chairman on 27 March 2009. On 30 March 2009, the Board's written decision was hand-delivered to Roth along with a cover letter from Slawter instructing her to serve and file the enclosed order. Roth acknowledged her receipt thereof on 30 March 2009 and hand-delivered the decision to the city clerk's office, and the city clerk filed the decision that day. The city clerk swore in her affidavit that 30 March 2009 was the first time she had written notice of the Board's decision in this matter. Roth also served a copy of the written decision on John Hunter, attorney for Respondent, and Curtis Euler, attorney for Petitioner, on 30 March 2009. Both attorneys acknowledged their receipt on 30 March 2009 by signing a copy thereof. The written decision, stating that the Board reached its determination on 25 March 2009, is a nearly verbatim rendering of the ruling read on the record that evening.
On 7 April 2007, the City filed a Petition for Trial pursuant to § 8(f) of the Civil Service Act, which allows either party to appeal the Board's decision to the Bumcombe County Superior Court for a trial de novo within ten (10) days of receiving notice of the Board's decision. Respondent filed a Motion to Dismiss the City's Petition on 27 April 2009 pursuant to Rules 12(b)(1) and 12(b)(6) of the North Carolina Rules of Civil Procedure on the grounds that: (1) the City did not timely file its appeal; and (2) the appeal is inconsistent with the City's earlier position such that it has waived § 8(f) and is estopped from challenging the Board's decision. On 1 July 2009, the trial court granted Respondent's motion on the grounds that Petitioner filed its appeal more than ten days from 27 March 2009, the date the decision was reduced to writing, and dismissed its Petition. Petitioner appeals.
Petitioner argues that the trial court erred as a matter of law in finding the Petition for Trial untimely filed and thereby dismissing it as such. Although the trial court did not reach Respondent's alternative arguments for dismissal, Respondent cross-assigns as error the failure of the trial court to dismiss the Petition on the grounds that: (1) Petitioner has waived and is estopped from appealing the Board's decision; and (2) Petitioner is not an aggrieved party with standing to appeal.
I. Subject Matter Jurisdiction
Petitioner argues that the trial court erred in granting Respondent's Motion to Dismiss by determining that the Petition for Trial was untimely filed under the Act. An appeal of a superior court's order granting a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) is subject to de novo review. See Harper v. City of Asheville, 160 N.C. App. 209, 213, 585 S.E.2d 240, 243 (2003). A court determining the existence of jurisdiction over the subject matter "may consider matters outside the pleadings." Harris v. Matthews, 361 N.C. 265, 271, 643 S.E.2d 566, 570 (2007).
Petitioner contends that its appeal to superior court was timely because it filed the Petition in compliance with § 8 of the Civil Service Act. Section 8 provides, in pertinent part:
(e) The Civil Service Board shall render its decision in writing within five days after the conclusion of the hearing. . . . Upon reaching its decision, the Board shall, in writing, immediately inform the city clerk and the member requesting the hearing of the Board's decision.
(f) Within ten days of the receipt of notice of the decision of the Board, either party may appeal to the Superior Court Division of the General Court of Justice for Buncombe County for a trial de novo. The appeal shall be effected by filing with the Clerk of the Superior Court of Buncombe County a petition for trial in superior court, setting out the facts upon which the petitioner relies for relief.
1999 N.C. Sess. Laws ch. 303, § 8(e)-(f). Petitioner reads the express language to indicate that the ten-day period begins to run against each party respectively upon receipt of the written notice of the Board's decision by the city clerk and the member who requested the hearing. We agree.
The issue before us involves interpretation of § 8(f) of the City's Civil Service Act, and in particular, the phrase therein providing that "[w]ithin ten days of the receipt of notice of the decision of the Board, either party may appeal." It is well-settled that "[i]n matters of statutory construction, our primary task is to ensure that the purpose of the legislature, the legislative intent, is accomplished." Electric Supply Co. v. Swain Electrical Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991).
The foremost task in statutory interpretation is to determine legislative intent while giving the language of the statute its natural and ordinary meaning unless the context requires otherwise. Where the statutory language is clear and unambiguous, the Court does not engage in judicial construction but must apply the statute to give effect to the plain and definite meaning of the language.
Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 518, 597 S.E.2d 717, 722 (2004) (internal quotation marks and citations omitted). For, "if the language of a statute is clear and unambiguous when applying ordinary meaning and grammar to its text, the legislative intent behind it is readily apparent." Durham Land Owners Ass'n v. County of Durham, 177 N.C. App. 629, 633, 630 S.E.2d 200, 203 (2006). "[H]owever, where the statute is ambiguous or unclear as to its meaning, the courts must interpret the statute to give effect to the legislative intent." Frye Reg'l Med. Ctr. v. Hunt, 350 N.C. 39, 45, 510 S.E.2d 159, 163 (1999).
When the plain language of a statute proves unrevealing, a court may look to other indicia of legislative will, including: the purposes appearing from the statute taken as a whole, the phraseology, the words ordinary or technical, the law as it prevailed before the statute, the mischief to be remedied, the remedy, the end to be accomplished, statutes in pari materia, the preamble, the title, and other like means.
In re Proposed Assessments v. Jefferson-Pilot Life Ins. Co., 161 N.C. App. 558, 560, 589 S.E.2d 179, 181 (2003) (internal quotation marks and citations omitted).
Most relevant to this case, "[s]tatutory provisions must be read in context: `Parts of the same statute dealing with the same subject matter must be considered and interpreted as a whole.'" Id. (quoting Comr. of Insurance v. Automobile Rate Office, 294 N.C. 60, 66, 241 S.E.2d 324, 328 (1978)). "Words and phrases of a statute are to be construed as a part of the composite whole and accorded only that meaning which other modifying provisions and the clear intent and purpose of the statute permits." In re Hayes, 199 N.C. App. ___, ___, 681 S.E.2d 395, 401 (2009) (citing Underwood v. Howland, Comr. of Motor Vehicles, 274 N.C. 473, 479, 164 S.E.2d 2, 7 (1968)), disc. review denied, 363 N.C. 803, 690 S.E.2d 694-95 (2010); see also McLeod v. Commissioners, 148 N.C. 77, 85, 61 S.E. 605, 607 (1908) ("The statute must be construed as a whole, and not by the wording of any particular section or part of it."). Consideration of the statute as a whole comports with the fundamental principle that "a statute must be construed, if possible, so as to give effect to every part of it, it being presumed that the Legislature did not intend any of its provisions to be surplusage." Hayes, 199 N.C. App. at ___, 681 S.E.2d at 401 (internal quotation marks and citation omitted).
Beginning with the plain language, the words of the statute at issue indicate that either party may appeal "[w]ithin ten days of the receipt of notice of the decision of the Board." 1999 N.C. Sess. Laws ch. 303, § 8(f). Respondent argues that although "notice" is not defined in the Civil Service Act, "its usage [therein] is plain and free from ambiguity, and expresses a single, definite, and sensible meaning." He contends that the clear language of the Act requires only actual notice and that such was satisfied when the decision of the Board was openly announced and read into the record on 25 March 2009. Petitioner, however, urges this Court to determine that the ten day period allotted for the filing of any appeal begins to run upon each party's respective receipt of the Board's written decision. Under the latter interpretation, the filing period for the City's appeal would have begun running on 30 March 2009, when the city clerk first received written notice of the Board's decision.[1] We agree with Petitioner.
Black's Law Dictionary defines "notice" as "[l]egal notification required by law or agreement, or imparted by operation of law as a result of some fact" and indicates that a party may have notice if that it "(1) has actual knowledge of [a fact or condition]; (2) has received a notice of it; (3) has reason to know about it; (4) knows about a related fact; or (5) is considered as having been able to ascertain it by checking an official filing or recording." Black's Law Dictionary 1087 (7th ed. 1999); see also Perkins v. Arkansas Trucking Servs., Inc., 351 N.C. 634, 638, 528 S.E.2d 902, 904 (2000) ("In the absence of a contextual definition, courts may look to dictionaries to determine the ordinary meaning of words within a statute."). Because there are multiple ways by which a person can have "notice," as the dictionary suggests, a lack of detail describing the type of notice required may render the term ambiguous. Here, the plain language of § 8(f) that the ten-day period for filing an appeal begins to run upon "the receipt of notice" is ambiguous because the statutory text leaves unclear the particular form of notice demanded. Cf. Copeland v. Brennan, 414 F. Supp. 644, 646 (D.D.C. 1975) ("[T]he statutory language that the thirty-day period begins to run upon `receipt of notice' is ambiguous as to the precise attributes of `notice.'"). This ambiguity, however, is clarified upon a contextual reading of subsection (f) with § 8 of the Civil Service Act as a whole.
Respondent claims that § 8(f) of the Act remains unaffected by the provisions in § 8(e), which require the Board's decision to be reduced to writing within five days of the hearing and that the written decision be forwarded to the city clerk and the employee. To adopt Respondent's reasoning, however, would ignore the fundamental principle of statutory construction that requires us to consider the phrase at issue as a composite part of the section as a whole. Respondent analogizes the actual notice standard he advocates to the standard previously used by our courts, where judgments were deemed entered upon their announcement in open court. See, e.g., In re Moore, 306 N.C. 394, 400, 293 S.E.2d 127, 130-31 (1982); Brooks, Com'r of Labor v. Gooden, 69 N.C. App. 701, 706, 318 S.E.2d 348, 352 (1984). While Rule 58 of the North Carolina Rules of Civil Procedure has been amended to clarify when any judgment is deemed entered, Respondent points out that cases could be dismissed under the earlier Rule when a party failed to file an appeal within the time allotted once a decision was announced in open court. See, e.g., Moore, 306 N.C. at 400, 293 S.E.2d at 130-31. The previous Rule itself, however, fully addressed both scenarios for judgments rendered in open court versus those that were not and therefore is not comparable to the statute at issue, which does not specifically address both contexts. Compare N.C. Gen. Stat. § 1A-1, Rule 58 (1990) (detailing what constitutes an entry of judgment, upon which the time period for filing an appeal is based, in different situations), with 1999 N.C. Sess. Laws ch. 303, § 8 (making no distinction in the time allowed for appeal when a decision of the Board is read aloud at the hearing before its reduction to writing). Accordingly, we conclude Respondent's attempt to liken the instant case to one dismissable under an earlier codification of Rule 58 has no merit.
Rather, our construction of § 8(f) of the Civil Service Act reveals that the legislature intended for the ten-day appeal period to be triggered by the receipt of written notice of the Board's decision, regardless of whether a party has actual or constructive knowledge thereof before that time. Although § 8(f) does not specify the form of notice required, the structure of the statutory section is instructive. Where § 8(f) establishes that "the receipt of notice" of the Board's decision begins the appeal period and § 8(e) fully details the requirements of that decision, subsection (f) must be read in reference to the paragraph which immediately precedes it. The only logical conclusion when reading the whole statute contextually is that "the receipt of notice of the decision of the Board" occurs when the mandates of § 8(e) are met. Accordingly, the specifications of § 8(e) that the Board's decision must be rendered in writing and that the persons listed must be informed in writing of the Board's decision are embedded in "the receipt of notice of the decision," as used in § 8(f). There is no indication in the Act that these requirements are waived if either party has prior actual knowledge of the decision.
Moreover, to accept Respondent's position that the calculation of time began from the date the Board rendered its oral decision would clearly frustrate the purpose of § 8(e) requiring the decision to be in writing and granting each party the right to be informed of the Board's decision in writing. Finally, based on the order of sections in the Act and the juxtaposition of subsections (e) and (f) specifically, we conclude the legislature intended for the Board to inform the parties of its written decision prior to either party filing a petition in superior court for de novo review. Indeed, the Board's own counsel wrote in his cover letter enclosing the Board's written decision that "[t]he date of delivery of the Order on the attorneys is important with regard to when the time to file an appeal begins to run." Because this construction harmonizes the provisions of §§ 8(e)-(f) and gives effect to each requirement therein, we hold that "the receipt of notice of the decision" occurs when the city clerk and member requesting the hearing the individuals designated in subsection (e) are informed in writing of the Board's decision.
Here, the Board's oral decision of 25 March 2009 was put into writing on 27 March 2009, but the record shows that the city clerk and Respondent, through his attorney, first received written notice of the decision on 30 March 2009. The City filed its Petition for Trial in Buncombe County Superior Court within the ten-day period following 30 March, and the initiation of the time period was not affected by the fact that the Board had rendered an oral decision at the close of the hearing. Because the Board was not compliant with the Act until its decision was put into writing and the parties were given written notice of the decision, Petitioner's filing on 7 April 2009 was timely. Therefore, we hold that the trial court erred in finding the calculation of time for filing an appeal in superior court began on 27 March 2009 and reverse the order dismissing the Petition for lack of subject matter jurisdiction.
II. Estoppel
Pursuant to Appellate Rule 10(d) of the version of the rules governing this appeal, Respondent cross-assigns as error the failure of the trial court to dismiss the City's Petition on equitable and judicial estoppel grounds because its appeal is inconsistent with the previous position taken by Petitioner before the Board. Respondent suggests that the trial court should have dismissed the Petition under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure because Petitioner's previous position indicates that the decision of the Board represents the final and full determination of the City in this matter. We disagree.
We review Rule 12(b)(6) motions to dismiss de novo. Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4, aff'd per curiam, 357 N.C. 567, 597 S.E.2d 673 (2003). Pursuant to Rule 12(b)(6), the standard of review for a motion to dismiss is "whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory." Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987); see also Burgin v. Owen, 181 N.C. App. 511, 512, 640 S.E.2d 427, 428 (2007) ("The standard of review of an order granting a 12(b)(6) motion is whether the complaint states a claim for which relief can be granted under some legal theory when the complaint is liberally construed and all the allegations included therein are taken as true."). "The complaint must be liberally construed, and the court should not dismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support his claim which would entitle him to relief." Whiteheart v. Waller, 199 N.C. App. ___, ___, 681 S.E.2d 419, 421 (2009), disc. review denied, 363 N.C. 813, __ S.E.2d __ (2010). Our courts have elaborated:
Dismissal under Rule 12(b)(6) is proper when one of the following three conditions is satisfied: (1) the complaint on its face reveals that no law supports the plaintiff's claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff's claim.
Wood v. Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002).
Respondent premises this cross-assignment of error on the disagreement between the parties and the Board over the propriety of issuing subpoenas in connection with a hearing under § 8 of the Act. At the hearing, Petitioner indicated that it relied on § 7 of the Civil Service Act for the conferral of the subpoena power. See 1999 N.C. Sess. Laws ch. 303, § 7. Pursuant to § 7,
[t]he Council, the City Manager, the chair of the Civil Service Board, or any person designated by any of them, may make investigations concerning the facts in respect to the operation and enforcement of the provisions of this Act and of the rules established thereunder, and concerning the condition of the civil service of the City or any branch thereof and may refer such matters to the Civil Service Board for hearing in accordance with Section 8 of this Act, or for further investigation as appropriate.
Id. Moreover, "[a]ny person, or persons, making any investigation authorized or required by this section, shall have the power to subpoena and require the attendance of witnesses." Id.
Counsel for Petitioner defended his decision to issue subpoenas, despite Slawter's opinion that such authority is lacking, by claiming that § 7 bestows upon the city manager the ability to issue subpoenas or delegate someone, such as the City Attorney's office, to do so. Accordingly, Petitioner subpoenaed several witnesses for attendance at the hearing under the authority of the city manager, as his designee. When asked by the Board what it was in § 7 that Petitioner relied upon for the city manager's authority to issue subpoenas in the hearing context, Petitioner responded that this matter was "an investigation regarding the conduct of Mr. William Huskey." In response to the Board's question as to whether it was Petitioner's position that an investigation, and not a grievance hearing, was being conducted, counsel for the City replied, "I think it is both."
Petitioner explained that § 7 allows for any person making an investigation thereunder to have the subpoena power and require witness attendance. He proposed that the city manager had made an investigation into the conduct of Respondent and that the Board was reviewing the city manager's decision at the hearing. He said, "I think it's all one and the same." Petitioner argued that § 7 "dovetails" into § 8, thus equating the city manager's process of reviewing the disciplinary action with the grievance hearing held independently under the procedures set out in the Act. Therefore, according to the City's view, §§ 7 and 8 of the Act are "one and the same," and an investigation is also a grievance hearing.
Respondent argues that because the City claimed that the investigation and the hearing were one and the same, the outcome of the Board hearing and the City's investigation are also one and the same. He proposes that where the Board found that Petitioner lacked justification for firing Respondent, Petitioner must also find the termination unjustifiable. Therefore, Respondent contends that Petitioner's seeking trial de novo implicitly asserts that the hearing and investigation are not one and the same and, thus, constitutes a position different than that previously advocated. We first note that none of Respondent's bases for applying the estoppel doctrine appear on the face of the Petition, and the trial court was thus correct in declining to address dismissal under 12(b)(6). However, even if the court had treated Respondent's motion as one for summary judgment and considered matters beyond the Petition, Respondent's arguments are unpersuasive.
Common to both equitable and judicial estoppel is the requirement that the party asserting either defense must demonstrate that certain actions of the opposing party created an unfair prejudice or detriment. See, e.g., Gore v. Myrtle/Mueller, 362 N.C. 27, 33-34, 653 S.E.2d 400, 405 (2007) (equitable estoppel); Whitacre P'ship v. Biosignia, Inc., 358 N.C. 1, 27-29, 591 S.E.2d 870, 887-89 (2004) (judicial estoppel). Respondent fails entirely to show that he has suffered any sort of prejudice or detriment incurred by the City's filing of the Petition after presenting its theory supporting the subpoenas. We therefore dismiss this argument and hold that it would not have been proper for the trial court to dismiss the Petition on the basis of either equitable or judicial estoppel.
III. Standing
Respondent also cross-assigns as error the failure of the trial court to dismiss the City's Petition on the grounds that Petitioner was not an aggrieved party with standing to appeal. This argument is meritless.
"Standing concerns the trial court's subject matter jurisdiction and is therefore properly challenged by a Rule 12(b)(1) motion to dismiss." Fuller v. Easley, 145 N.C. App. 391, 395, 553 S.E.2d 43, 46 (2001). Thus, a motion to dismiss for want of standing is reviewed de novo. See Mangum v. Raleigh Bd. of Adjust., 362 N.C. 640, 644, 669 S.E.2d 279, 283 (2008). "N.C. Gen. Stat. § 1-271 (2007) provides that `[a]ny party aggrieved' is entitled to appeal in a civil action." Moody v. Sears Roebuck & Co., 191 N.C. App. 256, 262-63, 664 S.E.2d 569, 574 (2008). "A person aggrieved is one adversely affected in respect of legal rights, or suffering from an infringement or denial of legal rights." County of Johnston v. City of Wilson, 136 N.C. App. 775, 779, 525 S.E.2d 826, 829 (2000) (internal quotation marks and citations omitted).
Respondent argues that Petitioner is not an aggrieved party because it implicitly adopted the Board's decision regarding Respondent's termination. Respondent suggests that, under Petitioner's theory that the hearing and investigation were one and the same, "the Board's decision is the City's decision" and consequently, Petitioner lacks standing to appeal. We disagree.
Pursuant to § 8(f) of the Act, "either party may appeal to the Superior Court Division of the General Court of Justice for Buncombe County for a trial de novo." 1999 N.C. Sess. Laws ch. 303, § 8(f). A plain reading of the statute indicates that our legislature has granted each party to a hearing under § 8 of the Act an unconditional right thereunder to appeal a decision by the Board. Because Petitioner was a party to the hearing, § 8(f) bestows upon it standing to appeal the adverse ruling it suffered by the Board's decision under the Act. Therefore, Petitioner has standing to bring its appeal in Buncombe County Superior Court by filing a petition for trial de novo, as it has done.
Moreover, any arguments of counsel before or during the hearing should not affect either party's standing because § 8(f) clearly provides for de novo review. This Court has held:
Power to try a case de novo vests a court with full power to determine the issues and rights of all parties involved, and to try the case as if the suit had been filed originally in that court. . . . This means that the court must hear or try the case on its merits from beginning to end as if no trial or hearing had been held by the Board and without any presumption in favor of the Board's decision.
Warren v. City of Asheville, 74 N.C. App. 402, 405-06, 328 S.E.2d 859, 862 (1985) (internal quotation marks and citation omitted). Accordingly, the arguments made by Petitioner before the Board in support of its subpoena power are not an issue because the superior court must treat the case as if it were originally filed there. This cross-assignment of error is dismissed.
We reverse the trial court's dismissal of the City's Petition. We dismiss Respondent's cross-assignments of appeal.
Reversed and Remanded.
Judges MCGEE and STEELMAN concur.
Report per Rule 30(e).
NOTES
[1] We note that neither party argues in favor of the trial court's determination that the clock started to run on 27 March 2009, when the Board's decision was reduced to writing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743129/ | 301 So. 2d 502 (1974)
Chester L. DUNMORE, Appellant,
v.
INTERSTATE FIRE INSURANCE COMPANY, a Foreign Corporation, Appellee.
No. T-424.
District Court of Appeal of Florida, First District.
October 3, 1974.
Rehearing Denied November 4, 1974.
Robert O. Stripling, Jr., Chandler, O'Neal, Avera, Gray, Lang & Stripling, Gainesville, for appellant.
Richard T. Jones and R. Franklin Ritch, Jones & Ritch, Gainesville, for appellee.
SPECTOR, Acting Chief Judge.
Appellant seeks review of a lower court order denying attorney's fees in his successful suit to recover "no-fault" insurance benefits from appellee.
On October 23, 1972, appellant sustained serious injuries in an automobile accident as a result of which he was hospitalized until December 12, 1972. An application for "no fault" benefits was filed by appellant on January 16, 1973, including an executed authorization for medical information and wage and salary information. Payment of the benefits were not made within thirty days as required by Section 627.736(4)(d) and appellant filed suit. A default judgment was entered but later set aside. Appellee did not contest appellant's entitlement to the $5,000.00 benefits but merely disputed the allowance of attorney's fees.
Section 627.736(4)(b) provides that personal injury protection benefits shall be paid within thirty days of claim. Section 627.736(8) states that "With respect to any dispute under the provisions of §§ 627.730-627.741 between the insured and the insurer, the provisions of § 627.428 shall apply." Section 627.428 provides that upon the rendition of a judgment against an insurer in this state, the court shall award attorney's fees.
It appears to us that the statutory language is clear and unambiguous. The insurance company has thirty days in which to verify the claim after receipt of an application for benefits. There is no provision in the statute to toll this time limitation. The burden is clearly upon the insurer to authenticate the claim within the statutory time period. To rule otherwise would render the recently enacted "no-fault" insurance statute a "no-pay" plan a result we are sure was not intended by the legislature.
Likewise, the statute is clear that in "any dispute" arising under the "no-fault" *503 statute, §§ 627.730-627.741, Florida Statutes, which proceeds to judgment against an insurer, attorney's fees shall be awarded to the insured, § 627.428, Florida Statutes.
Accordingly, we reverse with instructions to the lower court to award appropriate attorney's fees, including fees for this appellate proceeding.
BOYER and McCORD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1723704/ | 167 So. 2d 577 (1964)
PEOPLES GAS SYSTEM, INC., a Florida corporation, Appellant,
v.
CITY GAS COMPANY, a Florida corporation, Appellee.
No. 63-568.
District Court of Appeal of Florida. Third District.
September 2, 1964.
Rehearing Denied October 14, 1964.
*578 Scott, McCarthy, Preston & Steel and George W. Wright, Jr., Miami, McClain, Cason & Turbiville, Tampa, for appellant.
Dubbin, Schiff, Berkman & Dubbin, Ward & Ward, Miami, for appellee.
Edgar H. Dunn, Jr., St. Petersburg, Erskine W. Landis, DeLand, amici curiae.
Before HORTON, TILLMAN PEARSON and HENDRY, JJ.
TILLMAN PEARSON, Judge.
The final decree which is appealed held a territorial service area agreement, defining the areas in which two gas utility companies should sell natural gas in Dade and Broward Counties, to be unenforceable. The basis for the decree was a holding that the agreement was a violation of Chapter 542, Fla. Stat., F.S.A.[1] This chapter is entitled: "Combinations Restricting Trade or Commerce" and prohibits, subject to named exceptions, any combination, "to prevent competition in manufacture, making, transportation, sale or purchase of merchandise, produce or commodities, or to prevent competition in aids to commerce."
The basic question is whether the chapter prohibits contracts made under the circumstances out of which this one grew. The appellant was plaintiff in the trial court and suffered an adverse decree dismissing its complaint. The decree was entered after trial. The chancellor has set down the factual background as follows:
"1. The litigants in the case at bar are two Florida regulated public utilities which voluntarily entered into a territorial service area agreement dividing the territory between them. It appears that upon application of the parties, the (Florida) Railroad and Public Utilities Commission gave its formal approval of the said agreement.
"A dispute later arose between the parties. Plaintiff claims the contract is valid and enforceable. Defendant claims the contract is void and unenforceable as contrary to the anti-trust laws of the state of Florida and the United States.
"Plaintiff admits that a territorial agreement as the one in question, without more, is indeed void. Plaintiff contends that the approval given by the utilities commission is the central fact that takes the agreement outside of the anti-trust laws and renders it valid and enforceable. Plaintiff also ascribes legal significance on the fact that these are `regulated' public utilities, and further that they are allegedly engaged in interstate commerce.
"Defendant contends that the Commission had no authority to approve such a contract, had no authority to supersede the courts and nullify the anti-trust laws, and that the said utilities are engaged in interstate commerce."
The suit was a complaint in equity brought by the appellant, Peoples Gas Company, seeking specific performance of the territorial service area agreement and an injunction against further violation of the agreement by construction undertaken by appellee. A pendente lite injunction was entered. At the conclusion of the plaintiff's *579 evidence, the chancellor dismissed the complaint and dissolved the temporary injunction. Upon the first appeal this court reversed and remanded the cause for trial. See Peoples Gas System, Inc. v. City Gas Company, Fla.App. 1962, 147 So. 2d 334. The question that we found to be presented and our holding were as follows:
"* * * These findings were based on the chancellor's conclusion that the map attached to the agreement controlled over the detailed description contained on its reverse side and that the only service areas intended to be covered by the agreement were those shown on the map."
* * * * * *
"Applying these principles to the case at bar we conclude that the chancellor erred in placing a construction upon the agreement which treated as surplusage one of its substantial, integral parts which could have been given a reasonable meaning consistent with the other parts of the agreement."
* * * * * *
"Having considered the agreement, the map, and the description contained on the reverse side thereof, it is our conclusion that the parties intended the map to be demonstrative of the boundary line between their respective service areas, the areas themselves being delineated by the description contained on the reverse side of the map.
"Other contentions have been advanced by the appellant as further basis for the reversal of the decree appealed which we deem it unnecessary to discuss in view of the result reached herein."
This court's mandate was issued on January 3, 1963. Plaintiff moved the trial court on February 8, 1963, for an order citing defendant for contempt for having continued to construct gas facilities in plaintiff's service area, in violation of the circuit court's temporary injunction entered before the appeal. Plaintiff urged that the temporary injunction was re-instated as a result of this court's reversal of the final decree, wherein the temporary injunction had been dissolved. Plaintiff also moved for a new temporary injunction. Both aspects of plaintiff's motion were denied. The chancellor completed the trial of the cause and entered the final decree dismissing the complaint. This appeal followed.
Appellant's first point urges that it was error for the chancellor to dismiss the complaint after trial because this court's prior opinion established that the service area agreement was valid and enforceable. A reference to the portions of our judgment above quoted serves to show that this position is not correct. In the opinion we held that the factual matters found by the chancellor were not determinative and remanded the cause "for further proceedings not inconsistent herewith." The holding of this court left for determination by the trial court all issues not dealt with in the opinion. See Kelly v. Kaufman, Fla.App. 1958, 101 So. 2d 909, 911 and authorities cited therein.
The second and third points presented urge that the chancellor erred in his holding that the service area agreement is in violation of the laws of the State of Florida and therefore, unenforceable. Under these points it is urged that the contract is not in violation of the laws of the State because (a) it is in keeping with the public policy of the State, and (b) the contract was specifically approved by the Florida Public Utilities Commission which had implied authority to approve such agreements. The decree of the chancellor was as follows:
"26. IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED AND DECREED as follows:
(1) That Chapter 542, including Section 542.10, is specifically applicable to the contract sought to be enforced herein
(2) That the claim by the plaintiff that Chapter 542 of the Florida Statutes *580 is or has been amended by implication by the provisions of any existing laws granting powers to the Florida Railroad & Public Utilities Commission, is hereby specifically denied.
(3) That the claim of the plaintiff that the effect of the Florida Statutes, Section 542, has been superseded by implication, or that its enforceability has been avoided or prevented by the acts of the Florida Railroad & Public Utilities Commission approving of the contract in question, is hereby denied.
(4) The counterclaim of the defendant or claims for affirmative relief and for damages, are hereby denied without prejudice to the defendant instituting such other suits at law or in equity in this or other forums or courts having proper jurisdiction, as it may be advised.
(5) The contract between Peoples Gas System, Inc., the plaintiff, and City Gas Company, dated the 9th day of September, 1960, being in violation of the laws of the State of Florida, as set forth above, is hereby declared to be void and unenforceable.
(6) Having adjudicated that the agreement of September 9, 1960, upon which the plaintiff predicates its claim for relief, is void and unenforceable, it is unnecessary for the Court to pass upon the other affirmative defenses, such as estoppel, urged by the defendant, and the Court does not pass upon these issues.
(7) The plaintiff's cause of action and all proceedings hereunder are hereby dismissed with prejudice."
The factual background, out of which this question arises, is not in controversy. The service area agreement defined the respective service areas of the parties in Dade and Broward Counties, Florida, and prohibited certain activities in the territory of the other.
Pursuant to, and as required by the terms of the agreement, plaintiff and defendant jointly filed a copy thereof with the Florida Public Utilities Commission which approved same by its Order No. 3051 entered in Docket No. 6231-GU on November 9, 1960.
In its order approving the agreement the Florida Public Utilities Commission stated by way of preamble:
"Peoples Gas System, Inc. and City Gas Company of Florida are gas public utilities operating under the jurisdiction of the Florida Railroad and Public Utilities Commission pursuant to Chapter 366, Florida Statutes. Said utilities have filed with this Commission a copy of a Territorial Agreement entered into between them on September 9, 1960. The territorial Agreement is an agreement between said companies as to the territorial service area boundary between said two companies in Dade and Broward Counties, Florida. Its approval is requested by the Commission.
"Chapter 366, Florida Statutes, does not authorize the Commission to grant franchises or certificates of public convenience and necessity to electric and gas public utilities. The Commission's jurisdiction under said chapter extends to the rates, service, and the issuance and sale of certain securities of public utilities as defined therein. In the exercise of this jurisdiction the Commission is specifically authorized to require repairs, improvements, additions and extensions to the plant and equipment of any public utility reasonably necessary to promote the convenience and welfare of the public and secure adequate service or facilities for those reasonably entitled thereto. Obviously, any agreement between two gas utilities which has for its purpose the establishing of service areas between the utilities will, in effect, limit to some extent the Commission's power to require additions and extensions to plant and equipment reasonably necessary to secure *581 adequate service to those reasonably entitled thereto. In our opinion, such a limitation can have no validity without the approval of this Commission.
"It is our opinion that territorial agreements which will minimize, and perhaps even eliminate, unnecessary and uneconomical duplication of plant and facilities which invariably accompany expansions into areas already served by a competing utility, are definitely in the public interest and should be encouraged and approved by an agency such as this, which is charged with the duty of regulating public utilities in the public interest. Duplication of public utility facilities is an economic waste and results in higher rates which the public must pay for essential services. Reasonable and realistic regulation, in such cases, is better than, and takes the place of competition. A public utility is entitled under the law to earn a reasonable return on its investment. If two similar utilities enter the same territory and compete for the limited business of the area, each will have fewer customers, but there inevitably will be excess facilities which must earn a reasonable return. The rates in such a situation will be higher than the service is worth, or customers in more remote areas will bear some of the unjustified expense necessary to support such economic waste. In the absence of a specific statute limiting the service areas of various public utilities, territorial agreements such as we are concerned with here, constitute no unreasonable restriction on the Commission's powers, but actually assist the Commission in the performance of its primary function of procuring for the public essential utility services at reasonable costs.
"Based upon our study of the Territorial Agreement under consideration and the circumstances surrounding the execution of said agreement, it is our opinion that said agreement is in the public interest and should be approved by this Commission."
Appellee in its approach to the question first urges as a ground for affirmance a position not adopted by the chancellor and one which must be held to have been rejected because if accepted by the court it would have precluded the question on which the case was decided. The suggested ground is that there were certain necessary parties, namely the City of Pompano, the City of Margate, and the Florida Public Utilities Commission, who should have been joined if appellant's prayer for enforcement of the service area agreement were to be considered. We do not find that this argument was advanced in the trial court and unless it is jurisdictional we ought not consider it here. Condrey v. Condrey, Fla. 1957, 92 So. 2d 423. We think the objection advanced is not jurisdictional. The service area agreement, if valid, prohibited the defendant from entering appellant's service area. The contention that further action by other governmental entities might be required was a matter of defense to the specific performance prayed. The chancellor clearly had the right to determine the question that he did determine, that is: Was the service area agreement enforceable under the laws of this State?
As pointed out by the chancellor, the appellant does not contend that the agreement would have been valid if it (Peoples) and the appellee (City Gas) had merely executed the agreement and had never submitted it to the Florida Public Utilities Commission. The essence of appellant's position, as we understand it, is that the chancellor applied the wrong rule of law to the question of the enforceability of a service area agreement voluntarily made between two regulated public utilities and subsequently approved by the regulatory body. The rule that the chancellor applied has three steps: (1) The service area agreement would be invalid under the Florida Anti-Trust Statutes, Chapter 542, Fla. Stat., F.S.A., if *582 entered into by non-regulated businesses; (2) There is no express statutory authorization to the Florida Public Utilities Commission to approve service area agreements between regulated public utilities, and an authorization implied from the statute would not be sufficient; (3) The agreement being without authorization under the laws of Florida, is invalid as it would be for unregulated businesses.
The appellant, upon the other hand, contends for a different view of the law as to (2) and (3) above. It would say: (1) Admittedly the service area agreement would be invalid if entered into by non-regulated businesses; (2) The appellant and the appellee are regulated public utilities to whom the anti-trust legislation found in Chapter 542, Fla. Stat., F.S.A., does not apply, because an over-all and comprehensive statutory system of regulation is found in Chapters 350, 364, and 366, Fla. Stat.; (3) Because the agreement was within the legislature's contemplated statutory framework for the regulation of public utilities, the approval by the regulatory body was within its implied powers and effective to make the agreement enforceable.
Since appellant and appellee are in agreement that the service area agreement would be unenforceable between non-regulated businesses and that the Florida Public Utilities Commission has no express statutory authority in the matter, we pass on to the question of whether the statutes of this State may be reasonably said to support a different rule for regulated public utilities than that expressed in Chapter 542, Fla. Stat., F.S.A., for non-regulated businesses.
Chapter 542, Fla. Stat., F.S.A., is Florida's Anti-Trust Law. Its purpose is to protect the public against trusts or monopolies and the evils flowing therefrom in relation to business affecting the public in general. It is concerned with economic policy. Its principal purpose, like all such laws, is to protect the public against any scheme, control or combination which creates a monopoly whereby the supply and price of commodities may be controlled, to the injury of the public. It acts by fostering and securing free enterprise or free competition, precluding combinations which tend to defeat free enterprise or free competition. Its philosophy may be said to be that by free enterprise or free competition the price the public will have to pay will be kept reasonable and the product the best. This Law, like all anti-trust laws, is an exercise by the state of its police power for the public welfare. See cases cited at 58 C.J.S. Monopolies §§ 27, 28 b.
Chapter 366, Fla. Stat., F.S.A., pertains to the control and regulation of private businesses furnishing gas or electricity to the public. These businesses are placed under the control and regulation of the Florida Public Utilities Commission. This Statute again is designed to protect the public against monopolies and the evils flowing therefrom, but not in relation to all businesses affecting the public, but only in relation to those selected by this Law, namely, privately-owned public utilities furnishing gas and electricity to the public. This Law is also concerned with economic policy. Its principal purpose is to protect the public against injury by an entirely different means other than through free competition. It acts through control and regulation by a state agency to insure to the public, at fair and reasonable rates and charges, gas and electricity through reasonably sufficient, adequate and efficient service, by and through the plant and facilities needed. This law is again an exercise by the state of its police power for the public welfare. § 366.01 Fla. Stat., F.S.A.
Thus, Chapters 542 and 366 are basically designed, through the exercise of the police power, to protect the public, but each in a different manner. Chapter 542 acts upon business in general by fostering free competition, and chapter 366 acts upon certain specific selected businesses, namely, public utilities furnishing gas and electricity, not through free competition but through control and regulation.
*583 The Supreme Court of Florida has recognized that the State has chosen to protect the public from monopolies and trusts in the public utility field by creating the Florida Public Utilities Commission and by vesting it with the powers necessary to regulate public utilities in the public interest. In City of St. Petersburg v. Carter, Fla. 1949, 39 So. 2d 804, the Supreme Court stated:
"The Florida Railroad and Public Utilities Commission was created for the purpose of protecting the general public from unreasonable and arbitrary charges that might be made by railroads and other transportation companies which may be classified as monopolies. The authority to regulate monopolies springs from the police power of the sovereign state and should be exercised only when necessary for the general welfare and to the end that all types of unjust, arbitrary and unreasonable discrimination against the interest of the public may be eliminated. * * *" 39 So.2d p. 806.
Having determined that there is a basis in the legislative policy of this State for a different rule for regulated public utilities, if such rule exists, we turn to the question of whether the Florida Public Utilities Commission may be said to have the implied power to regulate, and therefore approve or disapprove, service area agreements between public utilities.
The chancellor in his scholarly and thorough opinion stated the problem as follows:
"3. The plaintiff has been unable to cite an express authorization by a Florida statute giving the utilities commission power and authority to approve such voluntarily entered contracts, and the further power to supersede the courts and nullify the anti-trust statutes of the state and the nation, declaratory of the public policy of the state and nation.
"In order to prevail, plaintiff must show that Florida law permits the utilities commission to amend or change the law, here the anti-trust law, by implication inherent or read into the statute creating the Commission and giving it its powers and authority.
"It is not enough to show what another jurisdiction may have said or done under similar circumstances. Florida is a sovereign state, other decisions or dicta may be persuasive but are not controlling, and Florida must decide for itself which rule to follow consistent with other relevant and material Florida principles and rules of law in related matters heretofore adhered to."
After discussing precedents in other states, the chancellor reached his decision:
"18. The Railroad and Public Utilities Commission has only such powers as are expressly or impliedly conferred on them by statute. 27 Fla.Jur. 180, Railroad and Public Utilities Commission, Sec. 42, Powers, no. 5, citing Fogarty Bros. Transfer, Inc. v. Boyd, 109 So. 2d 883 (Fla. 1959)
"19. Again, at 27 Fla.Jur. 181, notes 9 to 13:
"The powers of the commissioners, wide though they are, are nevertheless special and limited (n. 9, citing Atlantic Coast Line R. Co. v. State, [73 Fla. 609], 74 So. 595 (Fla. 1917), for the commission enjoys only such powers as have in fact been granted to it by the legislature (n. 10, citing Florida Tel. Corp. v. Carter, 70 So. 2d 508 (Fla. 1954). It is beyond the power of the Commission to amend (n. 11, citing Atlantic Coast Line R. Co. v. Mack, 57 So. 2d 447 (Fla. 1952), and Diamond Cab Owners Asso. v. Florida R. & Public Util. Comm., 66 So. 2d 593 (Fla. 1953) or change (N. 12, citing the Atlantic Coast Line R. Co. v. Mack, supra, the Diamond Cab Owners, supra, and Tel. Corp. v. Carter, supra) the law; its powers are restricted to those *584 conferred by the express terms of the statute or which may be reasonably implied from them (n. 13, citing numerous cases)."
* * * * * *
"21. Free enterprise is a basic public policy of the state and nation. This is universally accepted and no citations are necessary, and free competition is a basic postulate of our free enterprise system. People v. Federal Power Commission [111 U.S.App.D.C. 226], 296 F.2d 348, 353 (C.A., D.C., 1961), reversed by U.S. Supreme Court on other grounds."
* * * * * *
"It necessarily follows that if there is a whole, or partial, change in an established policy, particularly when a statute is enacted declaratory of it, it takes another statute by express authority to effectuate such a basic change in policy.
"It necessarily follows that an administrative agency, without express authority, cannot by mere implication extend its powers and nullify the anti-trust laws."
Thus, we reach what we think is the crucial question: Can the Public Utilities Commission exercise any power not expressly granted? We begin with the realization that all powers exercised by the Commission must come from the statute. The problem is may a power come to the Commission by its general grant of authority, (1) to regulate and supervise each utility with respect to its rates and service as well as to the issuance and sale of its securities. § 366.04, Fla. Stat., F.S.A.; (2) to require repairs, improvements, additions and extensions to plants and equipment in order to promote convenience and welfare of the public and secure adequate service. § 366.05, Fla. Stat., F.S.A.; (3) to promulgate rules and regulations affecting equipment, facilities and service to be installed. § 366.06(3), Fla. Stat., F.S.A.
The Legislature has expressed its purpose as to the regulation of public utilities as follows:
"The regulation of public utilities as defined herein is declared to be in the public interest and this Chapter shall be deemed to be in exercise of the police power of the state for the protection of the public welfare and all the provisions hereof shall be liberally construed for the accomplishment of that purpose." § 366.01, Fla. Stat., F.S.A. [Emphasis supplied].
A regulatory commission may have implied powers. The Borden Company v. Odham, Fla. 1960, 121 So. 2d 625. The Odham case involved the implied power of the Milk Commission to force milk distributors to accept at a fixed price all milk tendered by producers. The Supreme Court upheld the exercise of the implied power and said:
"It is, therefore, our opinion that on account of the liberal powers vested in the Commission by Chapter 501, Florida Statutes, F.S.A., the finding that it was a proper exercise of the police power and the manifest purpose of the act, the conclusion of the Chancellor that the Commission had authority to require distributors and producer-distributors to accept all milk from their producers and pay minimum prices therefor, provided it acts reasonably under the circumstances before it is amply supported and should be affirmed."
121 So.2d p. 632.
See also Fogarty Bros. Transfer, Inc. v. Boyd, Fla. 1959, 109 So. 2d 883; Cf., In Re Warner's Estate, 1948, 160 Fla. 460, 35 So. 2d 296.
Having reached the conclusion that the Public Utilities Commission may exercise an implied power if such exists, we are impelled to the decision that such power exists in the commission to approve and make binding service area agreements between regulated public utilities. This decision *585 is reached because of (1) the jurisdictional power, control and authority given the Commission by Chapter 366, Fla. Stat.,F.S.A., (2) the public interest in effective and adequate regulation and control in order to prevent duplication of service and consequent higher rates; (3) the express directions of the legislature that the powers granted by Chapter 366, Fla. Stat., F.S.A., be liberally construed.
Appellant's fourth point concerns the pendente lite injunction entered by the chancellor and dissolved in the first final decree, which was entered at the close of plaintiff's evidence. The remedy sought by the plaintiff in this action was specific performance of the service area agreement by way of injunction, both temporary and permanent. Pursuant to motion of the plaintiff, the chancellor on May 9, 1962, entered an order temporarily restraining the defendant from further construction in the service area claimed by the plaintiff. This temporary injunction was specifically dissolved by a paragraph of the final decree of May 23, 1962, which was entered at the close of plaintiff's case. Reference has already been made to the appeal from that final decree which followed.
During the pendency of the first appeal, the defendant again began construction in the service area claimed by plaintiff. This court reversed the final decree of dismissal and remanded the cause for a trial of the issues. Upon the remand, the plaintiff moved for an order citing the defendant for contempt by the violation of the temporary restraining order. The basis for the motion was plaintiff's contention that upon the reversal of the final decree, the pendente lite injunction was revived as though it had never been dissolved. Plaintiff's motion asked that in event the trial court held the temporary injunction was not reinstated, that a new injunction be entered. The chancellor denied the motion. Appellant's fourth point urges that the chancellor erred in denying the citation for contempt and in denying the new injunction.
As has already been pointed out, this Court's opinion on the first appeal, Peoples Gas System, Inc. v. City Gas Company, Fla.App. 1962, 147 So. 2d 334, held only that the factual matters found by the chancellor were not determinative. This holding left for determination by the trial court all issues not dealt with in the opinion. The right to pendente lite injunctive relief was not dealt with in the opinion; therefore, by the express words of the opinion this Court left that matter for the trial court's consideration. Therefore, no error has been demonstrated upon the refusal to hold defendant in contempt.
A consideration of this record, which presents substantial legal problems, does not convince us that plaintiff's case for pendente lite relief was so ample and that of the defendant so insufficient as to constitute the denial of the temporary injunction an abuse of the broad discretion of the chancellor. Albury v. Plumbers Local Union No. 519, A.F. of L.-C.I.O., Fla.App. 1958, 100 So. 2d 647.
The appellee attempts to present an additional point based upon a cross assignment of error. The substance of this cross assignment is that the court erred in not giving as additional ground for its decree dismissing the cause. The additional ground urged by appellee is the contention that the service area agreement is unenforceable because it is in violation of the Anti-Trust Monopoly Statutes of the United States.
Appellee's point is improperly presented because the cross assignment of error does not lie. Rule 3.5 Florida Appellate Rules, 31 F.S.A., is the basis for cross assignments of error. It provides that: "c. Essentials. The assignments or cross assignments shall designate identified judicial acts which should be stated as they occurred; grounds for error need not be stated in the assignment." Therefore assignments and cross assignments lie to judicial acts and not to the grounds given by the Court for its *586 judicial acts. We can not consider the point raised by appellee.
Having considered the points presented and having reached the conclusion that the chancellor erroneously held that the service area agreement was unenforceable as a violation of Chapter 542, Fla. Stat., F.S.A., the decree appealed is reversed with directions to proceed with the cause.
Reversed.
NOTES
[1] Section 542.10 provides: "Any contract or agreement in violation of the provisions of this chapter shall be void and not enforceable either in law or equity." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743134/ | 710 N.W.2d 545 (2005)
HAMILTON v. STORY COUNTY BD. OF ADJUSTMENT
No. 04-0759.
Court of Appeals of Iowa.
December 21, 2005.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260845/ | 2010 WY 131
BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner,
v.
ROBERT WILLIS INGRAM, WSB Attorney No. 6-3831, Respondent.
No. D-10-0003.
Supreme Court of Wyoming. April Term, A.D. 2010.
September 29, 2010.
ORDER SUSPENDING ATTORNEY FROM THE PRACTICE OF LAW
MARILYN S. KITE, Chief Justice.
[¶ 1] This matter came before the Court upon a "Report and Recommendation for Discipline," filed herein August 13, 2010, by the Board of Professional Responsibility for the Wyoming State Bar. After a careful review of the Board of Professional Responsibility's Report and Recommendation, the materials attached thereto, and the file, this Court finds that the Report and Recommendation should be approved, confirmed and adopted by the Court; and that the Respondent, Robert Willis Ingram, should be suspended from the practice of law for a period of eighteen months. It is, therefore,
[¶ 2] ADJUDGED AND ORDERED that the Board of Professional Responsibility's Report and Recommendation for Discipline, which is attached hereto and incorporated herein, shall be, and the same hereby is, approved, confirmed, and adopted by this Court; and it is further
[¶ 3] ADJUDGED AND ORDERED that, as a result of the conduct set forth in the Report and Recommendation. Respondent Robert Willis Ingram shall be, and hereby is, suspended from the practice of law for a period of eighteen months from the date of this order; and it is further
[¶ 4] ORDERED that Respondent shall comply with Section 22 of the Disciplinary Code for the Wyoming State Bar. That Section governs duties of disbarred and suspended attorneys; and it is further.
[¶ 5] ORDERED that Robert Willis Ingram shall reimburse the Wyoming State Bar the amount of $903.54, representing the costs incurred in handling this matter, as well as pay an administrative fee of $500.00, by paying the amount of $1,403.54 to the Clerk of the Board of Professional Responsibility, on or before November 8, 2010; and it is further
[¶ 6] ORDERED that, pursuant to Section 4(c) of the Disciplinary Code for the Wyoming State Bar, this Order Suspending Attorney from the Practice of Law, along with the incorporated Report and Recommendation, shall be published in the Wyoming Reporter and the Pacific Reporter; and it is further
[¶ 7] ORDERED that the Clerk of this Court shall docket this Order Suspending Attorney from the Practice of Law, along with the Report and Recommendation, as a matter coming regularly before this Court as a public record; and it is further
[¶ 8] ORDERED that the Clerk of this Court transmit a copy of this Order Suspending Attorney from the Practice of Law to the members of the Board of Professional Responsibility and to the clerks of the appropriate courts of the State of Wyoming.
BEFORE THE BOARD OF PROFESSIONAL RESPONSIBILITY
WYOMING STATE BAR
STATE OF WYOMING
In the matter of )
ROBERT WILLIS INGRAM )
WSB Attorney No. 6-3831 ) Docket No. 2009-132
Respondent. )
REPORT AND RECOMMENDATION I OR DISCIPLINE
This mailer having come before the Board of Professional Responsibility for a disciplinary hearing held on June 30th, 2010, and continued to July 19th, 2010, pursuant lo Section 19 of the Disciplinary Code for the Wyoming Slate Bar. The Wyoming State Bar was represented by Rebecca A. Lewis. The Respondent Robert Willis Ingram was present and represented by Terry W. Mackey. The following members of the Board of Professional Responsibility were present: Rex O. Arney. Joseph B. Bluemel, Jenifer Scoggin. Ann Robinson, Katherine H. Tomassi. Francis E. Stevens. Chairman, conducted the hearings The Board of Professional Responsibility makes the following Report and Recommendation, with its Findings of Fact, Conclusions of Law, and Recommendation to the Supreme Court of Wyoming:
FINDINGS OF FACT
1. Respondent. Robert W. Ingrain, is an active member of the Wyoming State Bar and has been since February of 2005. He currently maintains his private practice out of his office in Colorado.
2. The Respondent appeared before the Honorable John Brooks. Second Judicial District Court. Stale of Wyoming, #CR-2009-7649, State of Wyoming v. Robert Willis Ingram on January 28, 2010. The Respondent entered a plea of guilty to the charge of Aiding and Abetting Delivery of a Controlled Substance, a felony, in violation of W.S. 1977, as amended, §35-7-1031 (a)(ii): §35-7-1036(b)and §6-1-201. On March 10, 2010. Judge John Brooks entered an "Order Upon Sentencing Hearing", deterring further proceedings without entering a judgment of guilt or conviction pursuant to W.S. 1977, as revised, § 7-13-301. et. seq. Pursuant to said Order, the Respondent was placed on one (1) to five (5) years supervised probation upon terms and conditions set forth in said Order. (Exhibit "A" )
3. The facts surrounding the events which resulted in the charges and plea involved the Respondent, his wife and a confidential informant. The Respondent was a participant in communications arranging for and resulting in the delivery of a controlled substance, commonly known as "eestacy" lo the confidential informant on or about January 16 and 17, 2009. That delivery occurred within 500 feet of the boundaries of property used by a school district. (Exhibit "B" Transcript pages 11-15 and testimony of the Respondent at Hearing.)
4. Rule 8.4 (b) to the Wyoming Rules of Processional Conduct states: "It is professional misconduct for a lawyer to: * * * * (b) commit a criminal act that reflects adversely on the lawyers' honesty, trustworthiness or fitness as a lawyer in other respects."
5. It has been proved by clear and convincing evidence that the Respondent violated Rule 8.4 (b) of the Wyoming Rules of Professional Conduct by actively engaging in an act or acts that were criminal conduct which was the basis for the charges described in Finding I., the basis for his plea of guilty and the resultant court order.
CONCLUSIONS OF LAW
1. Rule 8.4 (b) of Wyoming Rules of Professional Conduct slates: "It is professional misconduct for a lawyer to: * * * * (b) commit a criminal act that reflects adversely on the lawyers' honesty, trustworthiness or fitness as a lawyer in other respects."
2. Standard 5.1 of ABA Standards for Imposing Lawyer Sanctions discusses the range of sanctions applicable to violations of Rule 8.4 (b). The Disciplinary Code to for the Wyoming State Bar Section 3(y) defines "serious crime" as (i) "any felony".
3. ABA Standards for Imposing Lawyer Sanctions. Standard 5.11 (a) provides that disbarment is "generally appropriate" when a lawyer engages in: * * * * "the sale, distribution, or importation of controlled substances:" Standard 5.12 provides that suspension is "generally appropriate" when a lawyer engages in criminal conduct which does not contain the elements contained in Standard 5.11 and that seriously adversely affects the lawyer's fitness to practice."
4. ABA Standards for Imposing lawyer Sanctions. Standard 9.1 provides for consideration of aggravating and mitigating circumstances in deciding on an appropriate sanction.
a. Applicable aggravating factors in this case are:
i. Section 9.22 (g) Respondent's refusal to admit his conduct was a violation oft he Rules of Professional Conduct, although he admitted to the offense and pled guilty before the District Court:
ii. Section 9.22 (k.) illegal conduct.
iii. Section 9.22(k.) The Respondent's conduct was aiding and abetting in the illegal delivery of a controlled substance that occurred within 500 feel of the boundaries of property used by a school district.
b. Mitigating factors in this case are:
i. Section 9.32 (a.) no prior disciplinary record:
ii. Section 9.32(k.) imposition of other penalties; The Respondent will be on supervised probation for a period of one (1) to live (5) years.
RECOMMENDATION TO HIE SUPREME COURT OK WYOMING
As an appropriate sanction for Respondent's violation of Rule 8.4(b) of the Wyoming Rules of Professional Conduct, the Hoard of Professional Responsibility recommends that the Respondent:
1. Be suspended from the practice of law for the period of eighteen (IS) months and comply with requirements of Section 22 of the Disciplinary Code for the Wyoming Stale Bar.
2. Pay costs including the cost of the hearing in the amount of $903.54, as set forth in the affidavit of Patricia F. Becklinger, Clerk of the Board of Professional Responsibility, and attached hereto, no later than X November 2010.
3. Pay the administrative fees of $500.00 no later than 8 November 2010.
This decision regarding the violation of the Wyoming Rules of Professional Conduct noted above is unanimously made by a quorum of the Board of Professional Responsibility.
DATED this 9th day of August 2010.
CERTIFICATE OF SERVICE
I. do hereby certify that a true and correct copy of the Report and Recommendation For Discipline was sent by e-mail and mailed by United States Mail, postage prepaid, on this 9th day of August 2010 to the following individual:
Terry W. Mackcy, Respondent Counsel
Terry W. Mackcy, PC
314 Last 21* Street
Cheyenne, WY 82001
and a copy was sent by e-mail and hand delivered to:
Rebecca A. Lewis. Bar Counsel
Wyoming State Bar
P.O. Box 109
Cheyenne. WY 82003.
AFFIDAVIT OF PATRICIA F. BECKLINGER
STATE OF WYOMING )
)
COUNTY OF LARAMIE )
PATRICIA F. BECKLINGER, being first duly sworn, upon oath, deposes and states as follows:
1. I am and was at all times relevant to this action as Clerk of the Board of Professional Responsibility. As such I am custodian of all disciplinary tiles. I also track of all costs incurred in all disciplinary matters.
2. The costs in No. 2009-132 are $903.54. Costs cover copying, postage. BPR hearing teleconferences and court reporting costs. The details of the costs are attached hereto as Exhibit A.
FURTHER AFFIANT SAITH NOT.
Dated this 9th day of August 2010.
____________________________
Patricia F. Becklinger. Clerk
Board of Professional Responsibility
Subscribed, sworn to, and acknowledged before me by Patricia F. Becklinger this 9th day of August 2010. Witness my hand and official seal. My commission expires:
EXHIBIT A
COST DETAILS
Robert W. Ingram
File No. 2009-132
Copies @.50 ea) & Postage:
3/22/10 64 pages $32.00
Postage $1.05
4/19/10 11 Pages $5.50
Postage $1.22
4/21/10 6 pages $5.50
Postage (certitied) $6.32
5/27/10 6 pages $3.00
Postage $.44
6/1/10 2 pages $1.00
Postage $.44
6/14/10 2 pages $1.00
Postage $.44
7/13/10 1 page $.50
Postage $.44
Total: $58.85
BPR Teleconference Costs:
6/30/10 $63.36
7/19/10 $47.73
Total: $110.09
Wyoming Reporting Services (hearings):
6/30/10 $528.80
7/19/10 $205.80
Total: $734.60
TOTAL COSTS: $903.54 | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260616/ | 124 Cal. Rptr. 2d 273 (2002)
101 Cal. App. 4th 525
Qui tarn plaintiff Nora ARMENTA et al., Petitioners,
v.
The SUPERIOR COURT of Los Angeles County, Respondent,
James Jones Company et al., Real Parties in Interest.
No. B157775.
Court of Appeal, Second District, Division One.
July 30, 2002.
Rehearing Denied August 21, 2002.
*275 Phillips & Cohen, Eric R. Havian and Harry Litman, San Francisco, Irell & Manella LLP, S. Thomas Pollack, Gregory R. Smith and Stephen Hasegawa, Los Angeles, for Petitioners.
No appearance for Respondent.
Beck, De Corso, Daly & Kreindler, Bryan D. Daly and Marc S. Harris, Los Angeles, Wolff, Ellis & Clausen LLP and Gregory R. Ellis, San Francisco, for Real Parties in Interest James Jones Company, Mueller Co., and Tyco International (US), Inc.
Weston, Benshoof, Rochefort, Rubalcava & MacCuish, David S. MacCuish, Kurt Osenbaugh and Todd B. Benoff, Los Angeles, for Real Party in Interest Watts Industries, Inc.
Certified for Partial Publication.[*].
*274 INTRODUCTION
SPENCER, P.J.
Qui tam[1] plaintiff Nora Armenta and plaintiffs East Bay Municipal Utility District, City and County of San Francisco, and City of Santa Monica petition for a writ of mandate commanding the superior court to vacate its order of March 27, 2002 and enter a new and different order prohibiting most of that which the March 27 order permits real parties in interest James Jones Company, Mueller Co., Tyco International (US), Inc. and Watts Industries, Inc. to do. Petitioners contend that California law precludes real parties in interest from interviewing and retaining experts who are privy to Armenta's confidential information. In addition, they contend, Armenta has a valid work product interest in Richard Preston Maas's reports, an interest that Los Angeles Department of Water and Power's counsel had no authority to waive. For the reasons stated post, we agree and grant the petition for a writ of mandate.
FACTUAL AND PROCEDURAL
BACKGROUND
On January 31, 2001, petitioner Nora Armenta (Armenta) filed a second amended complaint for violation of the California False Claims Act (Gov.Code, § 12650 et seq.). Armenta, a former employee of James Jones Company (Jones), alleges on behalf of the Los Angeles Department of Water and Power (LADWP) and 164 other municipal water systems that Jones, Mueller Co., Tyco International (US), Inc. (Tyco), and Watts Industries, Inc. (Watts) sold the water systems water valves, fittings and other metal water distribution parts that did not meet contract specifications. The parts that Jones sold contained significantly higher levels of lead and zinc than called for in the specifications. As a consequence, lead levels in the water supply possibly could rise and the parts could degrade prematurely.
In April 1999, Armenta's counsel retained Richard Preston Maas (Maas) as an expert on lead leaching from bronze water distribution parts. In May 1999, LADWP also retained Maas. Maas thereafter served as Armenta's and LADWP's joint expert. He produced several reports and memoranda for LADWP concerning the status and results of lead leaching tests he performed. These reports and memoranda, although paid for by LADWP, addressed as well the concerns and views of Armenta's counsel.
In order to protect the work product of their collaborative relationship, counsel for *276 Armenta and LADWP executed a joint prosecution agreement that became effective on January 1, 1999, before either party retained Maas. The agreement confirms "a mutuality of interest in a common and joint prosecution of the action." Its purpose is "to ensure that the exchanges and disclosures of plaintiffs' materials contemplated by the Agreement do not diminish in any way the confidentiality of plaintiffs' materials and do not constitute a waiver of any privilege otherwise available." The agreement expresses the parties'"intention and understanding that communications among us and any joint interviews of prospective witnesses are confidential and are protected from disclosure to any third party by our clients' respective attorney-client privilege and our own work-product privilege."
The agreement further provides that "[i]n order to pursue this joint prosecution of the action effectively we have also concluded that, from time to time, the mutual interests of our respective clients will best be served by sharing documents, factual material, mental impressions, strategies, legal theories, memoranda, interview reports, and other information, including the confidences of each client, all of which will hereinafter be referred to as `plaintiffs' materials.' In the absence of such sharing, these plaintiffs' materials would be privileged from disclosure to adverse or other parties as a result of the attorney-client privilege, the attorney work-product privilege or other applicable privileges." The agreement specifically applies to "plaintiffs' materials received from other counsel or jointly obtained by any one counsel on behalf of the other counsel." (Italics added.)
The agreement continues in effect regardless of "any conclusion or resolution of the action with respect to any party whose counsel is a signatory to this agreement or with respect to all parties. Counsel agree that they and their clients will continue to be bound by the agreement following any conclusion or resolution of the action."
Maas and counsel for Armenta consulted extensively with two other experts that LADWP retained, Exponent, Inc. and Stephen Rothenberg (Rothenberg). Exponent, Inc. analyzed the results of Maas's testing, conferred with counsel about the anticipated use of Maas's data at trial, and discussed confidential work product information about litigation theories and tactics. Exponent, Inc. prepared written reports. Rothenberg, a toxicologist retained as a consulting expert, with whom counsel discussed litigation theories and strategy, did not prepare written reports.
On October 5, 2001, LADWP sought the trial court's approval of a settlement with real parties in interest to which LADWP had agreed. Article 4, paragraph 4.1 of the settlement agreement states that "LADWP will provide to [real parties] all data, reports and studies generated or developed by or on behalf of the LADWP and its retained experts or consultants in connection with the Action, whether developed before or after the LADWP filed its Complaint-In-Intervention. The materials to be produced to [real parties] include all documents which reflect any analysis, opinions and/or data related to the LADWP and developed by or on behalf of the LADWP's experts or consultants in connection with the Action...."
LADWP took the position that it independently sought and procured test results, reports and other data produced by Maas, Exponent, Inc. and Rothenberg. In LADWP's view, these materials thus were exempt from the joint prosecution agreement, which provides in paragraph four that "nothing contained herein shall limit the right of any counsel to disclose any document or information obtained from *277 that counsel's client or any information that has been independently obtained by such counsel." (Italics added.) Moreover, LADWP argued, inasmuch as LADWP's counsel always had represented that she intended to disclose the test results, neither party to the joint prosecution agreement could claim work product privilege in these materials. Finally, as LADWP understood the law, the California Public Records Act (Gov.Code, § 6250 et seq.) superseded the joint prosecution agreement. Petitioners opposed the motion.
At the October 31, 2001 hearing on the motion to approve the settlement agreement, petitioners disputed LADWP's assertion that it had always indicated its intent to make all test results public. Petitioners noted that the only time LADWP's counsel stated she would disclose test results, she was referring to tests conducted by LADWP personnel. In petitioners' view, there never had been any contemplation that the product of joint experts would be disclosed before the conclusion of the litigation. Petitioners would agree to public disclosure of joint experts' test results only if real parties in interest were prohibited from using the results in the litigation.
The court did not dispute that Maas's reports were covered by the joint prosecution agreement. It accepted, instead, the argument that the Public Records Act required a governmental agency settling a case to make public documents underlying the decision to settle. The court asked, accordingly, "[c]an a joint prosecution agreement trump the Public Records Act?" In the court's view, LADWP had "a responsibility to the people they represent to say, we did this because it is safe, we thought this was the way to go, and we are not jeopardizing the health of the people who reside in the City of Los Angeles by engaging in this type of settlement."
The court overruled petitioners' objections to the settlement agreement. It ruled that "[t]he information sought can be produced and may be produced." It "stayed execution on the implementation of the dissemination of that information for 60 days" to "give the interested parties an opportunity to bring a protective order motion." The court's inclination was "to permit complete dissemination of the information, but do that in the framework of timing of exchange of expert information. In other words, the information ... would be turned over at the same time the exchange of expert information and all of that comes forward."
Real parties in interest objected to delayed disclosure, in part on the ground that they were unable to duplicate the tests the experts performed. They presented their objections at a December 7, 2001 hearing on an unrelated discovery matter. The court indicated a willingness to entertain a motion for an early exchange of expert information, but reiterated that the public had "a right to know." The court ultimately modified its original ruling and ordered disclosure of LADWP's expert information "forthwith," on condition that the reports not be used until the mutual exchange of expert information.
By written motions, Jones, Mueller Co., Tyco and Watts sought an order permitting them to use Maas's written reports "for any purpose." They also demanded, for the first time, reports prepared by Exponent, Inc. Finally, they sought leave to interview and retain Rothenberg and Exponent, Inc. Once again, petitioners opposed the motion.
At the March 20, 2002 hearing on the motions, the court granted the motions. It allowed "the use of these reports for all purposes and [permitted] use [of] all of the information provided" by LADWP "in connection with its settlement and ... permitted *278 [real parties in interest] to conduct further discovery as is necessary to place the information in the proper context...." The court also permitted disclosure of information gained from Exponent, Inc. and Rothenberg. The court found "under the factual scenario that's presented to the Court, and the fact that the DWP has always made known the issue and the argument that they would produce all of this information and make it open to the public, is most compelling to defeat any reasonable expectation argument that the information would remain confidential."
On March 27, 2002, the court issued an order in which it found that "based upon LADWP's obligations to the public under the California Public Records Act ..., and counsel for LADWP's expressed awareness of those obligations and intention to make the expert information public, the Court overruled plaintiffs' objections to the disclosure of the expert test data and ordered that the reports may be produced." The court ruled that "[defendants may use for any and all purposes the LADWP expert information provided to them pursuant to the Court's October 31, 2001 order. ... This information includes reports by Dr. Richard Maas and by Exponent. Defendants may conduct such further discovery as is necessary to place the disclosed expert information in proper context. Specifically, the Court orders that defendants shall be permitted to contact, interview, and/or depose forthwith representatives of Exponent and Dr. Stephen Rothenberg. Provided, however, that defendants may not, absent further order from the Court or subsequent exchange of expert information, interview or depose Dr. Maas."
The court noted that "[i]n reaching this ruling, the Court finds that the attorney work product protection afforded by Code of Civil Procedure § 2018 does not prohibit defendants from using for any purpose the LADWP expert reports provided to them pursuant to the Court's prior order. Given the absence of any reasonable expectation that the information in question would remain confidential, the Court finds the information is not subject to work product protection. Moreover, even assuming the information generated by the LADWP experts could constitute the joint work product of plaintiffs, any such protection would be qualified, and would therefore give way to the interests of justice. Here, the Court finds that prohibiting defendants from using the LADWP expert information and conducting such discovery as is necessary to place that expert information in context, would unfairly prejudice defendants in preparing their defense, thereby resulting in an injustice. Accordingly, the avoidance of such injustice would outweigh any qualified work product protection that might arguably apply."
DISCUSSION[**]
Joint Prosecution Agreement
The joint prosecution agreement recites that the common interest doctrine governs the parties' relationship and cites common interest doctrine cases. It elucidates the close cooperation and sharing of highly sensitive information between Armenta's counsel and LADWP's counsel. Where parties collaborate on work product, "waiver of [the] privilege by one of the joint holders does not bar the other joint holder from asserting it." {American Mut. Liab. Ins. Co. v. Superior Court (1974) 38 Cal. App. 3d 579, 591, 113 Cal. Rptr. 561.)
There is conflicting evidence as to whether Armenta and LADWP collaborated *279 on work product in the form of Maas's data and reports. LADWP's counsel says it was an independent effort. Maas himself says it was a collaborative effort, however, as does Armenta's counsel. The court did not dispute that Maas's reports were covered by the joint prosecution agreement, thus impliedly finding them to be the result of a collaborative effort. Where such work product is the result of collaboration by counsel, all holders of the work product privilege must consent to waiver of the privilege. (American Mut. Liab. Ins. Co. v. Superior Court, supra, 38 Cal.App.3d at p. 591, 113 Cal. Rptr. 561.) Armenta does not now and never has consented to waiver.
The question thus becomes whether the reports qualify as work product. The court found that they did not. In the court's view, in light of LADWP's consistently expressed intent to make the test results public, Armenta cannot have had any reasonable expectation of confidentiality.
LADWP did state early in the litigation that it intended to disclose to real parties in interest all test results and would dismiss health allegations in the complaint if the test results established that there was no health risk. LADWP then would make the test results available to the public. The test results of which counsel was speaking, however, were those for which LADWP independently contracted, not those resulting from Maas's work. Counsel later stated that she would waive her work product privilege with respect to independent testing results (Maas's conclusions).
LADWP's willingness to make its own independent test results public and counsel's willingness to waive her work product privilege with respect to Maas's work do not establish that Armenta had no reasonable expectation that Maas's reports would remain confidential. Armenta asserts no joint work product interest in LADWP's independent reports. LADWP's counsel executed the joint prosecution agreement after revealing her intent to make preliminary test results public. Armenta had every reason, therefore, to trust that counsel would not disclose the jointly obtained Maas test results without Armenta's consent. Nothing counsel said suggested she would act otherwise. Finally, LADWP counsel's willingness to waive her own work product privilege could not vitiate any prospect of confidentiality when Armenta had her own privilege to assert. (American Mut, Liab. Ins. Co. v. Superior Court, supra, 38 Cal.App.3d at p. 591, 113 Cal. Rptr. 561.)
In short, Maas's reports do qualify as work product. As noted in Shadow Traffic Network v. Superior Court (1994) 24 Cal. App. 4th 1067, at page 1079, 29 Cal. Rptr. 2d 693, "reports prepared by an expert as a consultant are protected until the expert is designated as a witness. [Citation.] ... However, to the extent that said reports embrace counsel's impressions and conclusions, the work-product doctrine gives absolute protection to that information. [Citation.]" (See also Mack v. Superior Court (1968) 259 Cal. App. 2d 7, 10, 66 Cal. Rptr. 280.)
The joint prosecution agreement likewise provides full protection to such information. Parties with common interests may share confidential information without waiving applicable protections. (U.S. ex rel. Burroughs v. DeNardi Corp. (S.D.Cal.1996) 167 F.R.D. 680, 686.) Inasmuch as the superior court impliedly accepted evidence that the reports were the result of Armenta's and LADWP's joint collaboration, LADWP's counsel had no authority to waive the work product privilege on Armenta's behalf. (American *280 Miti, Liab. Ins. Co. v. Superior Court, supra, 38 Cal.App.3d at p. 591, 113 Cal. Rptr. 561.)
With respect to Exponent, Inc. and Rothenberg, Armenta only challenges real parties' right to interview, depose or retain these experts, with whom, the uncontradicted evidence shows, Amenta's counsel shared confidential information. She does not challenge disclosure of Exponent, Inc.'s report.
The work product doctrine protects confidential communications even if those communications do not result in retention of the potential expert, provided that the party asserting the privilege had a reasonable expectation of the communications' confidentiality. (Shadow Traffic Network v. Superior Court, supra, 24 Cal.App.4th at p. 1080, 29 Cal. Rptr. 2d 693.) The same principle should apply to communications with retained experts that one decides not to call as witnesses.
Under the terms of the joint prosecution agreement and the express declaration of Armenta's counsel, Armenta clearly had a reasonable expectation that communications made to Exponent, Inc. and Rothenberg would remain confidential. There is no evidence to the contrary. The superior court therefore erred in permitting real parties in interest to interview, depose and retain Exponent, Inc. and Rothenberg.
Public Records Act[***]
Prejudice
Under Code of Civil Procedure section 2018, subdivision (c), any "writing that reflects an attorneys' impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances." Any other writing is not discoverable "unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice." (Id., subd. (b).) Unfair prejudice results where the party seeking discovery establishes that there exists "`no adequate substitute'" for the material generated by the expert. (County of Los Angeles v. Superior Court (1990) 222 Cal. App. 3d 647, 654, fn. 4, 271 Cal. Rptr. 698.) Conversely, when the party has equivalent opportunity to generate comparable evidence in its own case presentation, there is no unfair prejudice. (See, e.g., Trade Center Properties, Inc. v. Superior Court (1960) 185 Cal. App. 2d 409, 411, 8 Cal. Rptr. 345.)
The material real parties in interest seek to discover clearly comes within the qualified privilege expressed in Code of Civil Procedure section 2018, subdivision (b). The question thus is whether substantial evidence supports the superior court's conclusion that "prohibiting defendants from using the LADWP expert information ... would unfairly prejudice defendants in preparing their defense, thereby resulting in an injustice." (Italics added.) (BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240,1261-1262, 245 Cal. Rptr. 682.)
Real parties in interest represented to the court that "the parts which form the basis for the LADWP expert analysis and conclusions have been altered such that defendants cannot duplicate those tests." As noted above, the question is not whether real parties can duplicate the tests that Maas performed but whether they have an equivalent opportunity to generate comparable evidence. (See, e.g., Trade Center Properties, Inc. v. Superior Court, supra, 185 Cal.App.2d at p. 411, 8 Cal. Rptr. 345.) *281 There is no evidence that they cannot do so.
First, Maas did not test every part real parties in interest sold to LADWP but only a representative sampling of those parts. Inasmuch as their settlement agreement provides for the replacement of real parties' parts with other parts, it is logical to infer that real parties could obtain from LADWP another representative sampling of the parts they sold to LADWP and perform tests upon those parts. Second, there is no evidence to support the conclusion that real parties could not obtain equivalent parts from the 160 cities that have not settled their claims. (See, e.g., Mack v. Superior Court, supra, 259 Cal.App.2d at p. 11, 66 Cal. Rptr. 280.)
In short, there is no substantial evidence to support the superior court's conclusion that denial of access to LADWP's expert witness information would unfairly prejudice real parties' preparation of their defense. It follows that the trial court necessarily abused its discretion in so concluding. (BP Alaska Exploration, Inc. v. Superior Court, supra 199 Cal.App.3d at pp. 1261-1262, 245 Cal. Rptr. 682.)
The petition for writ of mandate is granted. Let a peremptory writ of mandate issue forthwith commanding the superior court to set aside its order of March 27, 2002, permitting real parties in interest to use for any and all purposes the LADWP expert information provided to them pursuant to the court's October 31, 2001 order. The court is directed to enter a new and different order prohibiting real parties in interest from contacting, interviewing or retaining Exponent, Inc. or Rothenberg and prohibiting real parties from using for any purpose the expert data or reports of Maas or any expert materials derived from those reports or data unless and until petitioners designate Maas to testify as an expert witness. Petitioners are to recover costs.
We concur: ORTEGA and MALLANO, JJ.
NOTES
[*] For good cause it is now ordered that the opinion be certified for partial publication as to the Introduction, Factual and Procedural Background, and the Joint Agreement and Prejudice portions of the Discussion only.
[1] "Qui tam is short for the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, which means `who pursues this action on our Lord the King's behalf as well as his own.'" (Vermont Agency of Natural Resources v. United States ex rel. Stevens (2000) 529 U.S. 765, 768, fn. 1, 120 S. Ct. 1858, 146 L. Ed. 2d 836.)
[**] See footnote *, ante.
[***] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260649/ | 520 Pa. 29 (1988)
549 A.2d 909
COMMONWEALTH of Pennsylvania, Appellant,
v.
Timothy Scott REESE, Appellee.
Supreme Court of Pennsylvania.
Submitted April 15, 1988.
Decided October 25, 1988.
*30 Joseph C. Giebus, Asst. Dist. Atty., for appellant. Frank W. Nocito, Wilkes-Barre, for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and STOUT, JJ.
OPINION OF THE COURT
LARSEN, Justice.
The question presented in this case is whether the search of a jacket found on a chair in an apartment, belonging to a visitor (Appellee) to the apartment, was included within the scope of a warrant to search the apartment for drugs and other contraband.
Members of the Pennsylvania State Police, Drug Law Enforcement Division, obtained a search warrant for 93 Main Street, Apt. D in Luzerne, Pennsylvania. The warrant authorized the search of the premises and of the person of Tina Cosgrove an occupant of Apt. D, for cocaine, other *31 controlled substances and any paraphernalia and records associated with the distribution of controlled substances. The search warrant and affidavit also noted that Appellee, Timothy Scott Reese, was an associate of Cosgrove, had been observed in the apartment and had been a target of drug law enforcement investigations.[1]
The search of the Cosgrove residence was executed on March 22, 1985. Upon entering the apartment, the police found Cosgrove and Reese in the kitchen, read the warrant and began the search. Officer Carl Allen, who was assigned to watch Cosgrove and Reese, noticed a black leather jacket that was draped over a kitchen chair approximately four feet away from him. Without knowing who the jacket belonged to but suspecting that it may contain contraband, the officer searched the jacket and found "brass knuckles." Reese acknowledged ownership of the jacket and was arrested and charged with the possession of "brass knuckles" a prohibited offensive weapon under the Crimes Code. 18 Pa.C.S.A. § 908 (Purdons, 1983).
Prior to trial, Reese filed a motion to suppress evidence of the "brass knuckles" which was denied by the suppression court after a hearing. At trial the "brass knuckles" were admitted into evidence and the jury found Reese guilty of possessing a prohibited offensive weapon. He was sentenced to two and one-half months to twenty-three and one-half months imprisonment. The trial judge denied Reese's motions in arrest of judgment and for a new trial.
On appeal, the Superior Court vacated the judgment of sentence on the ground that the suppression court erred in not suppressing the "brass knuckles". That court held that search of Reese's jacket was not within the scope of the warrant because "the circumstances surrounding examination of the jacket all argue the conclusion that it belonged *32... to Reese" and could not have been "part of the general content of the room." Commonwealth v. Reese, 360 Pa.Super. 347, 520 A.2d 491 (1987). The Commonwealth petitioned this Court for allowance of appeal. We granted allocatur and we now reverse.
The Fourth Amendment of the United States Constitution requires that "no warrants shall issue, but upon probable cause ... and particularly describing the place to be searched and the persons or things to be seized". U.S. Const. amend IV. Similarly, the Pennsylvania Constitution states that "no warrant to search a place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause." Pa. Const. art. 1 § 8. The major purpose of the particularity requirement is to prevent general searches. This "requirement ensures that the search will be carefully tailored . . . and will not take on the character of the wide-ranging exploratory searches the Framers [of the United States Constitution] intended to prohibit." Maryland v. Garrison, 480 U.S. 79, 84, 107 S. Ct. 1013, 1017, 94 L. Ed. 2d 72, 80 (1987).
This Court in Commonwealth v. Reece, 437 Pa. 422, 263 A.2d 463 (1970), held that a person's (visitor's) mere presence in a private residence in which a search warrant is being executed does not, without more, justify a search of that person under the authority of the search warrant. Additionally, in Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973), this Court held that the search of the personal property of a visitor to an apartment was not within the scope of a warrant to search the premises. In so holding this court stated:
While recognizing the applicability of Reece to the present case, the Commonwealth has attempted to distinguish it. The only factual distinction is that the search in Reece, was of the guest's person and here the search was of the guest's effects. There is no constitutional difference.
Id., 455 Pa. at 266, 312 A.2d at 34 (emphasis added). Since we now believe there is a constitutional difference between *33 the search of a visitor's person and the search of a visitor's personal property (property which is not on the person) located on premises where a search warrant is being executed, we overrule our decision in Platou.
Where a search warrant adequately describes the place to be searched and the persons and/or things to be seized the scope of the search "extends to the entire area in which the object of the search may be found" and properly includes the opening and inspection of containers and other receptacles where the object may be secreted. United States v. Ross, 456 U.S. 798, 820-821, 102 S. Ct. 2157, 2170-71, 72 L. Ed. 2d 572 (1982). As the Court in Ross noted:
... a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found. A warrant to open a footlocker to search for marihuana would also authorize the opening of packages found inside. A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search.
Id. at 821-822, 102 S. Ct. at 2171. Thus, the scope of a lawful search is "defined by the object of the search and the places in which there is probable cause to believe that it may be found."[2]Maryland v. Garrison, 480 U.S. 79, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987), citing Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982) (emphasis added).
Clearly, the police are not prohibited from searching a visitor's personal property (not on the person) located on premises in which a search warrant is being executed when that property is part of the general content of the premises and is a plausible repository for the object of the search. Otherwise, it would be impossible for police to effectively search a premises where visitors are present because they *34 would not know which items, clothing and containers could be searched and which could not be searched.
In Ross the court recognized that "[w]hen a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, must give way to the interest in the prompt and efficient completion of the task at hand." Id. at 821-822, 102 S. Ct. at 2171. In this same vein it would be ineffective and unworkable to require police officers to make the distinction between which articles of clothing and personal property belong to the resident and which belong to the visitor before beginning the search. It would not be reasonable to require police officers executing a warrant to ask individuals located on the premises whether they own various items of personal property nor, would it be reasonable to expect an appropriate response were they required to do so.
Furthermore, in Ybarra v. Illinois, 444 U.S. 85, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979) Justice William Rehnquist, writing a dissent for the United States Supreme Court, made a telling point when he stated that "an absolute bar to searching persons not named in the warrant would often allow a person to frustrate the search simply by placing the contraband in his pocket." Id. at 102, 100 S. Ct. at 348. And so too, visitors to the premises could frustrate the efforts of police by placing contraband among their unworn personal effects or by announcing ownership of various articles of clothing and containers in order to place those items beyond the scope of the warrant. We cannot sanction any rule that through fraud and gamesmanship erects barriers to the effective and legitimate execution of search warrants.
In this case Officer Allen testified that he noticed a black leather jacket hanging over the back of a chair about four feet away from where he was standing. He made a decision to search the jacket "because it's a common place where either contraband could be hidden or weapons." (Notes of Testimony at p. 39 Sept. 17, 1985). The jacket was not being worn by Reese and therefore, cannot be *35 characterized as an extension of his person so as to propel its search into a search of Reese's person. We therefore hold that the police were justified in searching Reese's jacket pursuant to the lawful search warrant since that property was part of the general content of the room and was a plausible repository for the object of the search.
Accordingly, we reverse the order of the Superior Court and remand the case to the Superior Court for disposition of the remaining issues preserved for appellate review.
NIX, C.J., files a dissenting opinion in which ZAPPALA, J., joins.
NIX, Chief Justice, dissenting.
The result reached by the majority is in direct contravention of Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973), where this Court held that a valid search warrant of the premises does not extend to the personal property of a visitor to the premises. I dissent because I am not convinced that there is any legitimate reason for overruling the holding in that case.
The United States Constitution protects people from unreasonable searches and seizures, and states that "no Warrants shall issue, but upon probable cause . . . and particularly describing the place to be searched, and the person or things to be seized." U.S. Const. amend. IV. The Pennsylvania Constitution similarly provides that "no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause. . . ." Pa. Const. art. 1, § 8. In Platou, supra, we explained that
"[t]he requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant."
*36 455 Pa. at 263-64, 312 A.2d at 33 (quoting Marron v. United States, 275 U.S. 192, 196 [48 S. Ct. 74, 76, 72 L. Ed. 231] (1927)).
Today, the majority overrules Platou, declaring that the scope of a search warrant properly includes the personal property of a visitor to the premises being searched. I cannot join that decision because I am not persuaded that United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982), is an indication that the United States Supreme Court would permit a search warrant of premises to extend to a visitor's personal property. Reliance on Ross is clearly misplaced because the critical issue in that case concerned probable cause and not the particularity of the search as described in a warrant.
Moreover, it is significant to note that even though both the United States Constitution and the Pennsylvania Constitution require particularity and probable cause, the order in which those two requirements are addressed differs. While the United States Constitution addresses probable cause first, the Pennsylvania Constitution addresses particularity first. This strongly suggests that in our Commonwealth particularity and probable cause are given at least equal importance. It would be inconsistent with the Pennsylvania constitutional formulation to suggest that, because of the degree of probable cause present in a given factual setting, the standard of particularity required can be lessened. Probable cause and the degree of particularity are two separate and distinct factors that must be considered in a judgment as to whether or not the constitutional mandate has been complied with. The strength of one requirement does not erode the mandate of the other. Hence, the fact that the standard of probable cause may be eminently clear in a given case cannot justify a relaxation of the degree of particularity that is required. The particularity requirement is not merely an appendage. A reading of the analysis of the majority suggests that they fail to appreciate this critical point.
*37 In light of the foregoing, I believe that Commonwealth v. Platou, supra, should be reaffirmed. To permit a police officer to extend the scope of a warrant to include property and persons not described in the warrant effectually takes away rights guaranteed to the citizens of this Commonwealth. Even if the personal property of a visitor located on premises being searched can properly be searched by a police officer under the United States Constitution, that type of conduct is clearly impermissible under the Pennsylvania Constitution.
I, therefore, dissent.
ZAPPALA, J., joins in this opinion.
NOTES
[1] The affidavit of probable cause stated in pertinent part:
7. According to Confidential Informant, one Timothy Reese, an associate of Cosgrove has been observed in Apt. D at the 93 Main Street address. Reese is a known drug user and has been the target of law enforcement investigations of the Region VIII Strike Force at Kingston.
[2] Just as the court in Ross noted that probable cause to believe "undocumented aliens are being transported in a van will not justify the search of a suitcase", United States v. Ross, 456 U.S. 798, 824, 102 S. Ct. 2157, 2172, 72 L. Ed. 2d 572 (1982), we do not suggest that the police in this case could have properly searched Reese's jacket had they been looking for an elephant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260654/ | 228 N.J. Super. 171 (1988)
549 A.2d 441
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT WOOTERS, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Submitted September 13, 1988.
Decided October 7, 1988.
*172 Before Judges DREIER and BROCHIN.
*173 Mullaly & Mullaly, attorneys for appellant (E. James Mullaly, on the brief).
W. Cary Edwards, Attorney General of New Jersey, attorney for respondent (Catherine A. Foddai, Deputy Attorney General on the brief).
The opinion of the court was delivered by BROCHIN, J.S.C. (temporarily assigned).
The defendant in this case pleaded guilty to three counts of burglary contrary to N.J.S.A. 2C:18-2 and three counts of theft of movable property valued in excess of $500.00 contrary to N.J.S.A. 2C:20-3a. Each of these counts also charged the defendant with accomplice liability. These guilty pleas were entered pursuant to a plea agreement by which the State agreed to recommend concurrent sentences on all of the counts and dismissal of other charges against the defendant.
The six counts of the indictment to which defendant pleaded guilty charged that he and his accomplices had committed theft and burglary at each of three separate residences. Two of those counts charged that the property taken from one of those residences included a rifle and a shotgun. The State contended in the Law Division that the defendant's guilty pleas to those counts required that he be sentenced to a period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c). In accordance with a right reserved in his plea agreement, the defendant argued to the contrary.
A hearing was held at which testimony was presented on the issue of the applicability of the Graves Act. The trial judge held that the statute was applicable. He sentenced the defendant to concurrent five year terms for all of the counts of the indictment to which the defendant had pleaded guilty. On the counts which charged the defendant with theft and burglary of a rifle and shotgun, the court imposed concurrent three-year terms of parole ineligibility pursuant to the Graves Act. This *174 appeal is taken solely from that imposition of parole ineligibility.
In its brief to this court, the State concedes, correctly, that the imposition of Graves Act parole ineligibility on the count of the indictment charging defendant with theft in violation of N.J.S.A. 2C:20-3a is error because that "crime ... does not trigger the Graves Act." The State suggests that since the trial court could have imposed a discretionary parole disqualifier pursuant to N.J.S.A. 2C:43-6b, this court "should amend the Judgment of Conviction to reflect a parole disqualifier of two and one half years on this count." That would not be appropriate, however, because the latter statute confers discretion upon the trial court to determine, in accordance with the statutory criteria, whether a period of parole ineligibility should be imposed and what should be the duration of any such period up to the statutory maximum. Since a remand is required in any event, the trial judge will have the opportunity to determine what, if any, minimum period of incarceration should be imposed on the theft count.
Defendant's guilty plea to the burglary count which charges a violation of N.J.S.A. 2C:18-2 does, of course, trigger Graves Act sentencing if the other statutory prerequisites are proved.
One of the theft counts to which the defendant pleaded guilty establishes that, either as a principal or as an accomplice, he "did unlawfully take the movable property of [the victim], that is, one rifle, shotgun...." At the Graves Act hearing, a State's witness testified that the defendant admitted to him that the defendant himself carried the rifle out of the victim's house. That testimony, if credited by the judge below, would be ample basis to support his conclusion that the defendant was subject to sentencing under the Graves Act. Insofar as pertinent, that statute reads:
"A person who has been convicted ... of a crime under any of [the enumerated statutory sections] . .. who while in the course of committing ... the crime, including the immediate flight therefrom . .. was in possession of a firearm ... shall be sentenced to a term of imprisonment by the court. The term of *175 imprisonment shall include the imposition of a minimum term ... during which the defendant shall be ineligible for parole." [Emphasis added] N.J.S.A. 2C:43-6C.
However, the judge below appears not to have relied upon the testimony presented at the Graves Act hearing. At the conclusion of that hearing, he noted that at the separate trial of one of the defendant's accomplices, he had heard testimony of an accomplice and of the defendant. Referring to the testimony at that separate trial, the court stated:
The court is satisfied by more than the preponderance of the evidence that the defendant was aware of the stealing of the weapons at the time of the burglary of the [victim's] residence. My recollection of the testimony is that [the defendant] said that he saw [an accomplice] carrying the weapons out, and [the accomplice] testified that he saw [defendant] carrying the weapons out.
Regardless of which it was, certainly [defendant] knew that this was part of the theft that was committed at the residence.
Again, the court is satisfied concerning that situation by more than the preponderance of the evidence, and the Court holds that [defendant] falls within the purview of the Graves Act....
If the trial judge was implying that if the defendant saw an accomplice carrying weapons out from the scene of their crime, that fact, without more, would constitute the element of "possession" necessary to subject the defendant to Graves Act liability, we disagree. That an accomplice took and removed firearms during the course of burglarizing a residence does not by itself establish that defendant is subject to the Graves Act. A defendant is subject to the Graves Act if in the course of commission of one of the enumerated offenses, including flight from the scene where that offense has been committed, he is in actual possession of a firearm (State v. Des Marets, 92 N.J. 62 (1982)), if he is in constructive possession, that is, able practically immediately to obtain actual possession (State v. Stewart, 96 N.J. 596 (1984)), or if he is an accomplice in an other's physical possession of a firearm (State v. White, 98 N.J. 122 (1984)).
In White, the Supreme Court said:
It is possible for an accomplice to be guilty of robbery and for his compatriot to be guilty of armed robbery.... However, if the accomplice, though found guilty only of robbery, knew or had reason to know before the crime was committed that his partner would possess or use a firearm while the crime was *176 being committed, or during the immediate flight thereafter, the trial court should apply the Graves Act. If the accomplice did not know or have reason to know beforehand that his partner would possess or use a firearm during those periods, then the Graves Act would be inapplicable. The deterrent effect the raison d'etre of the Graves Act is preserved. [Id. at 131.]
The weapons which figure in this case were unexpectedly found by the burglars at the scene of their crime. Therefore, if that language is applied literally, defendant in this case would not be subject to the Graves Act because he "did not know or have reason to know beforehand that his partner would possess ... a firearm...." However, for reasons which we shall explain, we do not think that the quoted language should be applied literally to the facts of this case.
In State v. Weeks, 107 N.J. 396 (1987), a case which explains the requisites of accomplice liability, the court reversed the armed robbery conviction of a defendant who was the "wheel man" in an armed robbery of a bakery. The jury was instructed as follows:
.... if you find beyond a reasonable doubt that the robber committed the crime of robbery and was armed with a deadly weapon or threatened the immediate use of a deadly weapon at the time of the commission of the robbery, then the defendant could be guilty of robbery in the first degree if you find beyond a reasonable doubt that he was an accomplice or an aider or abettor in that robbery....
....
If you find that the defendant William Weeks willfully and knowingly aided, agreed to aid or attempted to aid another person in the commission of a robbery, then you must consider him a principal and equally guilty. [107 N.J. at 405]
Holding that those instructions were "plain error," the court said, "... what we find troubling is the fact that the jury may not have known that an essential element of the accomplice liability charged is that the accomplice share the purpose to commit an armed robbery." [Ibid. Emphasis in the original.] The instruction was defective, the court held, because it "did not clearly require the jury to find that defendant had shared the purpose to commit a robbery with a weapon." [Ibid. Emphasis in the original.]
*177 In a careful discussion of the concept of accomplice liability under the Code, the court noted:
The drafters of the Model Penal Code (MPC) originally presented a tentative formulation of accomplice liability premised on the culpable mental state of knowledge [footnote omitted] as the sufficient predicate for establishing the liability of the accessory.... This tentative formulation was rejected, and the MPC now specifically requires that the accomplice have the `purpose of promoting or facilitating the commission of the offense' of which the principal was convicted ... The language in N.J.S.A. 2C:2-6c(1) [the accomplice liability provision of the N.J. statute] is identical. [Id. at 402]
In a footnote, the court provides the following elaboration:
Examples were given by the MPC commentators of situations where guilty knowledge was deemed insufficient to warrant congruent liability: Farm boy clears the ground for setting up a still, knowing that the venture is illicit; a landlord rents with knowledge that the premises will be used to establish a house of ill repute. [Id. at 402-403, fn.]
In the light of that emphasis on purpose in contradistinction to mere knowledge as a prerequisite of accomplice liability, we conclude that the court was saying only that an accomplice's purpose to promote or facilitate the commission of the substantive offense of armed robbery may be inferred as a fact from the accomplice's participation in the crime after he "knew or had reason to know before the crime was committed that his partner would possess or use a firearm while the crime was being committed...." Weeks, 107 N.J. at 400; White, 98 N.J. at 131.
What is the significance for the instant case of the statement in White that "If the accomplice did not know or have reason to know beforehand that his partner would possess or use a firearm during those periods, then the Graves Act would be inapplicable."? [State v. White, supra. at p. 131. Emphasis added.] The offense of unarmed burglary to which defendant pleaded guilty was complete on his entry into the victim's house with the intent to commit theft. N.J.S.A. 2C:18-2; State v. Mangrella, 214 N.J. Super. 437 (App.Div. 1986), certif. den. 107 N.J. 127 (1987). Read literally, therefore, the language quoted from White would mean that a defendant whose partner found and removed weapons from the scene of a burglary would not *178 be subject to Graves Act liability as an accomplice if the defendant did not expect or have reason to expect before the burglary that weapons would be found there. But if one of two confederates encourages or assists his partner to remove unexpectedly discovered weapons, surely both should be subject to the Graves Act even though only one had physical possession.
In the factual context of this case, where "possession" of a firearm upon which Graves Act liability is based consists solely in the fact that the defendant's partner unexpectedly found a weapon in the house which they were burglarizing and carried it away, whether or not defendant is vicariously liable for having "possessed" a firearm depends upon whether he was "an accomplice" to the carrying away of the weapon which was unexpectedly found. In accordance with the teaching of White and Weeks, in order for the defendant to be an accomplice in that enterprise, he must be found to have had the purpose of promoting or facilitating the removal of the weapon. Proof of that purpose might include evidence that he knew once the weapon had been discovered that his partner intended to carry it away, but defendant's admission that he saw his confederate removing a weapon, without proof that he aided or facilitated the removal of the weapon, or shared his partner's purpose to do so, would not be sufficient.[1]
*179 On remand, imposition of a Graves Act sentence, if based upon this defendant's culpability as an accomplice and not upon his physical possession of a weapon, will require a finding that defendant consciously shared in his partner's purpose to remove a weapon from the burglarized premises as part of the loot.
Moreover, although the finding of a requisite element of a Graves Act offense may be based upon proof which would not be admissible in evidence at the defendant's trial (State v. Stewart, 96 N.J. 596, 606 (1984)), such a finding may not be based upon testimony of a witness at a trial to which the Graves Act defendant was not a party and whom he had no opportunity to cross-examine. N.J.S.A. 2C:43-6d, the statutory provision dealing with a Graves Act hearing, does not authorize a court to base its finding on such a source. The statute reads, "In making its finding, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing or other court proceedings and shall also consider the pre-sentence report and any other relevant information." However, "the trial, plea hearing or other court proceedings" to which the statute refers are those in which the defendant participated or had the opportunity to participate. N.J. Evidence Rule 63(3) permits the use in a criminal proceeding of testimony given at a prior trial by someone other than the defendant only if the declarant is unavailable and if the issue at the former trial "was such that the present defendant had the right and opportunity for cross-examination with an interest and motive similar to that which he has in the present proceeding." That rule is of Constitutional dimensions. See Ohio v. Robert, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); State v. Biegenwald, 106 N.J. 13, 71 (1987). See also State v. Land, 73 N.J. 24, 37 (1977). Similarly, the "pre-sentence report *180 and other relevant information" which the court may also consider refers to information which has been submitted to the defendant and which he has had the opportunity to dispute. See Rule 3:21-2(b); State v. Kunz, 55 N.J. 128 (1969). On remand, the determination whether defendant is subject to Graves Act sentencing should be based on evidence presented at the Graves Act hearing and at defendant's trial and on other relevant proofs which defendant has the opportunity to challenge and dispute.
The case is remanded to the trial court for resentencing. We do not retain jurisdiction.
NOTES
[1] The question may be raised whether a defendant is subject to Graves Act liability under circumstances like those which may be presented by this case if, after learning that his accomplice is carrying away a weapon unexpectedly found at the site of their crime, the defendant does not attempt to prevent the enterprise or at least disassociate himself from it. N.J.S.A. 2C:2-6e(3) has a provision dealing with renunciation. That provision, however, states: "A person is not an accomplice in an offense committed by another person if:.... (3) he terminates his complicity under circumstances manifesting a complete and voluntary renunciation ... prior to the commission of the offense. Termination by renunciation is an affirmative defense which the defendant must prove by a preponderance of evidence." In other words, failure to renounce does not make a party an accomplice; it is only after a party has become an accomplice that his renunciation may become material by providing an affirmative defense to liability. Accomplice liability to Graves Act sentencing, or to any other consequence of vicarious culpability, depends on proof of a shared purpose. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260665/ | 378 Pa. Super. 454 (1988)
549 A.2d 145
COMMONWEALTH of Pennsylvania, Appellee,
v.
John C. GRABOWSKI, Appellant.
Supreme Court of Pennsylvania.
Argued May 5, 1988.
Filed August 22, 1988.
Reargument Denied October 24, 1988.
*456 Frank W. Ittel, Jr., Pittsburgh, for appellant.
Edward M. Clark, Assistant District Attorney, Pittsburgh, for Com., appellee.
Before CIRILLO, President Judge, and BECK and POPOVICH, JJ.
POPOVICH, Judge:
This is an appeal from the judgments of sentence entered by the Allegheny County Court of Common Pleas, Criminal Division. On March 5, 1987, the appellant, John Grabowski, was sentenced on four counts of theft by receiving stolen property.[1] We affirm.
For the first time on appeal through his newly-appointed counsel, the appellant asserts that he was denied effective assistance of trial counsel on three grounds: 1) Trial counsel erroneously failed to file post-trial motions attacking the sufficiency of the evidence; 2) Trial counsel erroneously failed to object to the charge to the jury; and 3) Trial counsel erroneously failed to object to the admission of incompetent opinion evidence. Having reviewed the record and the parties' briefs, we find that the appellant has failed to prove his allegations of error.
The record reveals the following pertinent facts: On February 5, 1986, the appellant, who operated Superior Auto Body, an automobile repair business in Pittsburgh, was evicted from his place of business. During the eviction process, the Allegheny County Deputy Sheriff, who was supervising the eviction removal of the appellant's equipment and automobile parts, was told by one of the moving crew, Mark Loveland, that the vehicle serial numbers (VIN) *457 had been removed from numerous inventory items. Mr. Loveland suspected that some of the parts may have been stolen. Accordingly, the Sheriff directed Mr. Loveland to contact the Pittsburgh Police Department.
At approximately 2:00 p.m. the same day, two Pittsburgh police detectives arrived at the body shop to investigate. Outside Superior Auto Body, the officers observed a flatbed truck loaded with automobile doors. Upon closer inspection, the detectives noticed that the VINs were removed from most of the doors. Believing removal of VINs to be a violation of federal law, the detectives entered the body shop to investigate further.
While inside the building, the investigators uncovered packing slips from inside automobile seats and from between the space between automobile roof and the cloth ceiling thereof. These packing slips reported the VINs of the cars upon which the seats and roofs were originally installed. The police also recorded the serial number of a word processor found on the premises. The VINs and the computer serial number were entered in the police computer. The results indicated that some of the VINs were from vehicles that had been reported stolen, and the word processor had also been reported stolen. Search warrants were then obtained, and the police seized the stolen parts and the word processor.
Several days later, the police were contacted by Charles Wilker, an investigator from the Erie Insurance Exchange. Wilker informed the police that a Pittsburgh parking citation had been issued to a Chevrolet Celebrity insured by Erie which had been reported stolen. Upon investigation, police determined that the citation was issued only hours after the reported time of the theft and the car was cited while parked within a block of Superior Auto Body. In addition, Wilker provided the police with a set of keys to the stolen car. The police then tried the keys in a Chevrolet Celebrity door and trunk that had been removed from Superior Auto Body and found that the keys opened the locks.
*458 As a result of the investigation, the appellant was charged with six counts of theft by receiving stolen property: four counts involved auto parts found on the premises of Superior Auto Body; one count involved the door into which the keys fit; and one count involved the word processor. Demurrers were sustained as to two of the counts; involving auto parts seized at Superior Auto Body and the appellant was convicted of the remaining four. Post-trial motions were filed and denied. Mr. Grabowski was then sentenced to a term of incarceration totalling two to four years, and this appeal followed. Present counsel commenced his representation after notice of appeal had been filed.
The law in Pennsylvania presumes that trial counsel was effective. Commonwealth v. Quier, 366 Pa.Super. 275, 278, 531 A.2d 8, 9 (1987); Commonwealth v. Norris, 305 Pa.Super. 206, 210, 451 A.2d 494, 496 (1982). Consequently, the burden of proving counsel's ineffectiveness rests upon the appellant. Quier, 366 Pa.Superior Ct. at 278, 531 A.2d at 9; Commonwealth v. Iverson, 358 Pa.Super. 1, 5, 516 A.2d 738, 740 (1986). Recently, our Supreme Court, in Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988), reiterated the analysis to be performed when reviewing a claim of ineffectiveness.
There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client's interest. If he did, our inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel's improper course of conduct worked to his prejudice, i.e., had an adverse effect upon the outcome of the proceedings. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Sullivan, 472 Pa. 129, 371 *459 A.2d 468 (1977); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).
Davis, 518 Pa.Superior Ct. at 83, 541 A.2d at 318.
First, we will dispose of the appellant's contention that he was denied effective assistance of counsel due to counsel's failure to file a post-trial motion attacking the sufficiency of the evidence. Initially, we must determine whether the appellant's underlying claim is meritorious, i.e., whether the evidence presented was legally sufficient to support a guilty verdict. After reviewing the record, we find that the evidence presented was sufficient to support the guilty verdict.
In reviewing the sufficiency of the evidence, we view the evidence in a light most favorable to the verdict winner and give the verdict winner the benefit of all reasonable inferences arising from the evidence. The test is whether the evidence is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Stark, 363 Pa.Super. 356, 360, 526 A.2d 383, 385 (1987), citing Commonwealth v. Campbell, 353 Pa.Super. 178, 181, 509 A.2d 394, 395 (1986); Commonwealth v. Meadows, 417 Pa. 201, 369 A.2d 1266, 1268 (1977).
The offense of receiving stolen property is defined in the Pennsylvania crimes code as follows:
18 Pa.C.S.A. § 3925. Receiving Stolen Property
(a) Offense defined. A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.
Instantly, the appellant does not dispute that the property at issue were stolen or that he had the pilfered items in his possession. Instead, the appellant alleges that the evidence presented was insufficient to prove he possessed "guilty knowledge". "In order to establish the mens rea element of the crime of receiving stolen property, the Commonwealth must prove that the accused possessed property with `guilty knowledge', i.e., knowing that it has been *460 stolen, or believing that it has probably been stolen. 18 Pa.C.S. § 3925(a)." Commonwealth v. Dunlap, 351 Pa.Super. 43, 47, 505 A.2d at 255, 257 (1985). Upon review of the record, we are convinced that the Commonwealth met this burden.
A permissible inference of guilty knowledge may be inferred from the unexplained possession of recently stolen goods as well as from the surrounding circumstances. Whether possession is recent and whether it is unexplained are normally questions for the trier of fact. Commonwealth v. Williams, 468 Pa. 357, 362 A.2d 244 (1976). Commonwealth v. Dunlap, 351 Pa.Superior Ct. at 47, 505 A.2d at 257; Commonwealth v. Worrell, 277 Pa.Super. 386, 419 A.2d 1199, 1201 (1980). Relevant considerations include but are not limited to the accused's conduct at arrest and conduct while in possession; the time elapsed between the accused's possession and the theft; the type of property; the situs of the theft and the situs of the possession; the value of the property and the price paid for the property; and the quantity of the property. Commonwealth v. Dunlap, 351 Pa.Superior Ct. at 47, 505 A.2d at 257; Commonwealth v. Worrell, 277 Pa.Superior Ct. at 391, 419 A.2d at 1201; Commonwealth v. Simmons, 233 Pa.Super. 547, 557-558, 336 A.2d 624, 629-630 (1975).
At trial, the jury was presented with the following evidence upon which to base its decision. The auto parts in question were removed from three automobiles: a Oldsmobile Toronado stolen on November 12, 1985, less than three months prior the initiation of the investigation on February 5, 1986; a AMC Eagle stolen on December 20, 1985, approximately one and one-half months prior to the investigation; and a Chevrolet Celebrity stolen on January 17, 1986, only nineteen days prior to the investigation. The computer in question was stolen on July 28, 1984, approximately one year and six months prior to the investigation of the appellant.
The appellant admitted that he removed the VINs from the stolen automobile parts, and testimony at trial revealed *461 that this practice, although not illegal, was not standard practice in the industry. Significantly, the appellant conceded that he did not have receipts or invoices for the auto parts in question, and he could not recall from where or whom he acquired the parts. The appellant thought he may have purchased them from his major supplier, but he was uncertain nonetheless. Upon cross-examination, the appellant admitted that he was aware that his major supplier was indicted because, in his words, "They were running a chop shop operation." (TT 461-462, 472) However, the appellant admittedly neither checked his business records to see if he had purchased any suspect parts from the supplier nor curtailed his purchases from the supplier.
Notably, the appellant was also unable to reveal the identity of the barter club member from whom he received the stolen computer in exchange for auto repair work, except by the name "Joe." Again, the appellant was unable to produce any records or receipts of the transaction, explaining that he did not keep a record of that transaction to avoid paying taxes on the in-kind income. The appellant testified that he performed approximately $1000.00 worth of auto repairs on Joe's car in exchange for the computer, and testimony elicited at trial revealed the computer's value to be $10,000.00. The appellant, however, was unable to explain the great disparity between the value of his work and the compensation he received.
Finally, the appellant was unable to explain his possession of the red trunk and red door from a red Chevrolet Celebrity which was stolen nineteen days prior to the initial investigation of the appellant by the police. The police were able to determine that, on the same day as theft was reported and hours after the theft had occurred, the auto was issued a parking citation on the block where the appellant's body shop was located. Moreover, keys obtained from the insurer which operated the stolen auto opened the red Celebrity door and trunk which were in the appellant's possession.
*462 Clearly, upon review of the record, we are convinced that a jury acting in a reasonable and rational manner could conclude that the appellant possessed guilty knowledge and, therefor, was guilty beyond a reasonable doubt. Commonwealth v. Frank Grabowski, 306 Pa.Super. 483, 452 A.2d 827 (1982) (car stolen 2 1/2 months prior found in defendant's possession; conviction affirmed); Commonwealth v. McFarland, 452 Pa. 435, 308 A.2d 592 (1973) (bonds stolen 11 months prior found in defendants' possession; conviction affirmed); Commonwealth v. Cohan, 177 Pa.Super. 532, 111 A.2d 182, 187 (1985) (fact that property was worth far more than price paid by defendant suggestive of guilty knowledge).
Having found that the evidence was sufficient to convict the appellant, we find that counsel was not ineffective for failing to file post-trial motion attacking the sufficiency of the evidence since counsel can not be held ineffective for his failure to pursue a meritless claim. Commonwealth v. Parker, 503 Pa. 336, 469 A.2d 582 (1983).
Second, the appellant asserts that trial counsel erroneously failed to object to the jury charge. He alleges the jury charge was erroneous in two respects: first, the judge insufficiently instructed the jurors in regard to the mens rea required, i.e., "guilty knowledge"; second, judge erroneously instructed the juror on the offenses relating to removal of VINs from automobiles as outlined in 75 Pa.C. S.A. § 7102 and 18 U.S.C.A. § 511. Again, we find that the appellant's allegation lacks merit.
Instantly, the trial judge twice read the text of the receiving stolen property statute to the jury. The courts instruction regarding guilty knowledge was as follows:
As I already indicated, ladies and gentlemen, a defendant can be guilt of theft by receiving stolen property if he believes that the property had probably been stolen. It is not necessary that the defendant know the details of the theft or that he be certain that a theft, in fact, occurred. (TT, p. 571).
*463 In Commonwealth v. Litman, 276 Pa.Super. 114, 419 A.2d 121 (1980), we reviewed a similar jury instruction on receiving stolen property. Therein, we stated: "It was incumbent upon the trial court to direct the attention of the jury to specific relevant `surrounding circumstances' and not leave the jury free to engage in unguided speculation." Accordingly, we find that the trial judge's instruction to the jury, which was void of any mention of the surrounding circumstances to be considered, provided insufficient guidance to the jury on the question of "guilty knowledge."
However, we have previously found that, instantly, the evidence presented at trial was sufficient to prove that the appellant possessed the requisite "guilty knowledge" to sustain a conviction for theft by receiving stolen property. Unlike Litman, supra, where we were able to point out many exculpatory factors which the jury should have been directed to consider, we are presently unable to discern similar exculpatory circumstances. Thus, counsel's failure to request an instruction which set forth specific factors to be considered did not prejudice the appellant. The facts sub judice would not prompt the jury to engage in "unguided speculation." To be sure, had the jury instruction been specifically tailored to the evidence, a different result would not have occurred. Therefor, the appellant was not prejudiced by his counsel's actions. See Commonwealth v. Tyson, 363 Pa.Super. 380, 526 A.2d 395 (1987) (failure to seek instruction on victim's prior violent acts not prejudicial).
Moreover, we find that the appellant has run afoul of our Supreme Court's holding in Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1980). Therein, the court stated: "This Court will no longer consider claims of ineffective assistance of counsel in the abstract. Boilerplate allegations. . . are insufficient to warrant remand for an evidentiary hearing. . . ." Instantly, the appellant has failed suggest a jury charge which, if given, would have ". . . offered *464 a potential for success substantially greater than the tactics actually utilized . . . [.]" Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984).
In response to the appellant's allegation that the court erroneously instructed the jury concerning the state and federal statutes dealing with the removal of VINs from automobiles, we find that this assertion of error also lacks merit. At trial, both prosecution and defense made numerous reference to statutes concerning the removal of VINs. Thereafter, the trial judge read the text of both statutes to the jury in order to enable the jurors to comprehend adequately trial counsels' arguments. (TT, p. 543).
The appellant argues "that evidence of one crime is inadmissible against a defendant being tried for another crime because the fact that one crime was committed does not prove the commission of the other. Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973)." (Appellants brief, p. 17) While we certainly agree with that proposition of law, we find it clearly does not apply presently. The Commonwealth did not contend nor attempt to prove that the appellant was guilty of any crime associated with removal of VINs. In fact, the Commonwealth's witness specifically testified that the appellant had not violated the statutes by removing the VINs from the auto parts. Clearly, the appellant was not prejudiced by the courts reading of the text of 75 Pa.C.S.A. § 7102 and 18 U.S.C.A. § 511. Rather, we find that the court read the sections to the jury with the purpose of clarifying the issues so that the jury would understand the questions to be resolved." See Commonwealth v. Jordan, 407 Pa. 575, 587, 181 A.2d 310, 316 (1962) (primary duty of trial judge when instructing jury is to clarify the issues). Thus, trial counsel was not ineffective for failing to pursue a meritless claim.
Finally, the appellant alleges that trial counsel was ineffective for failing to object to the admission of incompetent *465 opinion evidence. We find that this allegation is meritless.
At trial, Mark Loveland testified that, when he entered the appellant's body shop to remove the auto parts pursuant to the eviction notice, the shop appeared to him to be a stockpile of stolen auto parts. (TT, p. 189). The witness then qualified his remarks stating that his observations were based on knowledge he acquired through his personal operation of a body shop and work he performed for federal and state agencies which entailed removal of recovered stolen auto parts. Appellant now argues that Mr. Loveland was not properly qualified as an expert witness. However, we find that Mr. Loveland's testimony was not expert testimony in the traditional sense. He merely testified to observations he made while removing auto parts from the appellant's body shop and to matters strictly within his personal knowledge.
"A witness may state relevant facts known to him, because of experience, even though he is not regarded as an expert whose opinion would be admissible on a hypothetical inquiry. Commonwealth v. Bennett, 471 Pa. 419, 423-24, 370 A.2d 373, 375 (1977), quoting Commonwealth v. Harris, 186 Pa.Super. 59, 63, 140 A.2d 344, 345 (1958)." Commonwealth v. Worrell, 277 Pa.Superior Ct. at 392, 419 A.2d at 1202. Accordingly, we rule that Mr. Loveland was competent to testify concerning not only the observations he made while inside the appellant's body shop but also the conclusion he drew from those observations based upon his personal experience. Consequently, we will not deem trial counsel to be ineffective for failing to pursue a meritless claim.
In conclusion, we find that the appellant has failed to prove any of his allegations of error. Instantly, the evidence presented was sufficient to sustain the guilty verdicts, the appellant was not prejudiced by counsel's failure to object to the jury instruction and the witness in question was competent to testify as he did. Therefore, counsel was not ineffective, and judgments of sentence are affirmed.
NOTES
[1] 18 Pa.C.S.A. § 3925. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/385754/ | 637 F.2d 375
6 Media L. Rep. 2505
Charles G. REBOZO, Plaintiff-Appellant-Cross Appellee,v.The WASHINGTON POST COMPANY, Defendant-Appellee-Cross Appellant.
No. 78-3403.
United States Court of Appeals,Fifth Circuit.
Feb. 19, 1981.
Sherryll Martens Dunaj, William S. Frates, Alan G. Greer, Miami, Fla., for plaintiff-appellant-cross appellee.
Steel, Hector & Davis, Patricia A. Seitz, Talbot D'Alemberte, Miami, Fla., Williams & Connolly, Kevin T. Baine, John B. Kuhns, Edward Bennett Williams, Washington, D.C., for defendant-appellee-cross appellant.
Appeal from the United States District Court for the Southern District of Florida.
Before WISDOM, RONEY and HATCHETT, Circuit Judges.
RONEY, Circuit Judge:
1
This is an appeal from a summary judgment entered for the defendant newspaper in a defamation suit. The district court found that plaintiff was a public figure and that no genuine issue of material fact existed as to whether defendant acted with actual malice. We affirm the court's finding that plaintiff is a public figure. We reverse, however, as to the decision that there was no genuine issue of material fact on the question of whether defendant acted with actual malice in publishing the newspaper article that forms the basis of this suit, and remand for further proceedings.
I. FACTS
2
Because the case was decided on defendant's motion for summary judgment, we must construe the record most favorably to plaintiff. Wolston v. Reader's Digest Association, Inc., 443 U.S. 157, 162 n.5, 99 S. Ct. 2701, 2705 n.5, 61 L. Ed. 2d 450 (1979); Time, Inc. v. Ragano, 427 F.2d 219, 221 (5th Cir. 1970).
3
In June 1973 Ronald Kessler, a reporter with substantial financial and reporting experience for defendant's newspaper, The Washington Post, was assigned by his editor to prepare a series of articles on the finances of then-President Richard M. Nixon. As part of his preparation Kessler became interested in plaintiff Charles G. Rebozo because of his relationship with the former President. Rebozo had been, and continues to be, a close friend and financial adviser of the former President, and serves as chairman of the board and president of the Key Biscayne Bank in Miami.
4
Newsday, a Long Island, New York, newspaper in 1971 had published a series of articles about Rebozo, one of which described a Miami lawsuit involving allegations that the Key Biscayne Bank had converted 900 shares of stock belonging to E.F. Hutton & Co. Some of the stock had apparently been pledged as collateral for a loan at the Key Biscayne Bank, and was later sold when the loan was called. During the course of his investigation, Kessler reviewed the file in the case, which by that time was pending in this Court on appeal, in order to determine whether it contained any subsequent unreported developments. See Fidelity & Casualty Co. v. Key Biscayne Bank, No. 70-619-Civ-JLK (S.D.Fla. Jan. 24, 1972) (order granting defendant's motion for directed verdict), vacated and remanded, 483 F.2d 438 (5th Cir. 1973), dismissed (S.D.Fla.1973), aff'd, 501 F.2d 1322 (5th Cir. 1974).
5
Among other things Kessler studied the deposition of George H. Riley, Jr., who had been retained to investigate a claim filed by E.F. Hutton with its surety, the Fidelity and Casualty Company of New York. In his deposition, Riley described a meeting he had with Rebozo in October 1968 as follows:
6
Q Did you tell Mr. Rebozo at that time that the stock had been stolen or was missing from E. F. Hutton & Co.?
7
A Yes, sir.
8
Q Can you recall exactly what you told him?
9
A As I previously stated, I advised Mr. Rebozo that I was investigating the theft of nine 100-share certificates from the vaults of E. F. Hutton & Co. in New York.
10
Q Did you advise him of the numbers of the certificates that you were investigating?
11
A Yes. And the numbers corresponded to the numbers he gave me.
12
It is undisputed that 300 shares of the stock were sold on November 13, 1968, although the parties differ on whether the stock was sold by the Key Biscayne Bank itself, or on Rebozo's personal account.
13
After Kessler read the court file in Miami and New Orleans, he called Riley on the telephone because, as Kessler described, "I wanted, somehow to get a feeling from him, at least as to whether he understood the possible significance of his testimony." Kessler recounted a portion of his telephone conversation with Riley as follows on deposition:
14
Q Did you specifically ask him whether his statement in the deposition concerning his conversation with Mr. Rebozo was accurate?
15
A No.
16
Q Why not?
17
A I attach great significance to testimony given under oath and most newspaper articles, of course, are based on statements that are not made under oath. So, when a reporter obtains statements that are made under oath, it is certainly of more significance than otherwise.
18
Q It would have been significant, wouldn't it Mr. Kessler, if Mr. Riley told you he had made an error or a misstatement in his sworn testimony?
19
A Yes.
20
Q You didn't think it important to find out whether he would say whether he was right or wrong in that statement?
21
A No.
22
Q You didn't want to know what he wanted to say on that issue?
23
(Objection omitted)
24
Kessler also contacted Rebozo's attorney, who told him Rebozo "flatly denies" that Riley told Rebozo during their October 1968 meeting that the stock was stolen. The attorney followed up the conversation with a letter, repeating that Riley's testimony was false in that respect.
25
The question whether Rebozo personally, or the Bank, had cashed the stock was the subject of an October 6 internal memorandum from Kessler to his Post editor, Harry Rosenfeld, prompted by the telephone conversation between Kessler and Rebozo's attorney. A portion of that memorandum states:
26
So who cashed the stock? Neither Rebozo nor other witnesses were asked this question in the depositions. There are no other legal papers in the court file to answer the question.
27
But there are copies of the bills, receipts, and checks covering the sale transaction. As is clear from the attached, they all bear Rebozo's name.
28
The fact that Rebozo's name appears on them, and that the transactions were executed on his personal account, appear to me to be more than sufficient evidence for the purposes of an accurate and fair newspaper account of what appears in the court file that Rebozo technically and substantively cashed the stock.
29
Kessler and Rosenfeld discussed the content of an article Kessler had prepared on the stock transaction, and reviewed the sources of the information contained in the article.
30
On October 25, 1973, The Washington Post published a front-page article containing the headline, "Bebe Rebozo Said to Cash Stolen Stock," accompanying a photograph of plaintiff, and the following four paragraphs:
31
Charles G. (Bebe) Rebozo, President Nixon's close friend, cashed $91,500 in stolen stocks in 1968 after he was told by an insurance investigator it was stolen, the investigator's sworn statement and other records in a Miami court file indicate.
32
A lawyer for Rebozo conceded the investigator visited Rebozo but said Rebozo "flatly denies" the investigator told him the stock was stolen.
33
The $91,500 in securities represented 300 of the 900 shares of International Business Machines Corp. stock that federal prosecutors say was stolen by the Mafia in 1968 from the vaults of E. F. Hutton & Co., a New York stock brokerage firm.
34
The stock came into Rebozo's possession when it was offered as collateral for a loan from Rebozo's bank, Key Biscayne Bank in Florida.
35
The story continued for a total of 126 paragraphs, with the balance of the article appearing on pages A14 and A15 of defendant's newspaper. The "main point" of the story, according to Kessler, was contained in the "lead," or first paragraph. Farther along in paragraph number 99, the Post article quoted the passage from investigator Riley's deposition, in which Riley was questioned about whether the stock "had been stolen or was missing." (emphasis added).
36
Rebozo's complaint contends the article's lead sentence is false in two respects: (1) the investigator did not tell him the stocks were stolen; and (2) the stocks were cashed by the bank, not by him. The question of the article's falsity, however, is not an issue in this appeal.
37
II. WAS REBOZO A PUBLIC FIGURE ?
38
In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), the Supreme Court held that a public official cannot recover damages for defamation relating to official conduct absent a showing of " 'actual malice' that is, with knowledge that it was false or with reckless disregard of whether it was false or not." 376 U.S. at 279-80, 84 S.Ct. at 725-26. Three years later the Court held in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967), that the New York Times standard is applicable to "public figures" as well. See also Associated Press v. Walker, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967). The Court elucidated the applicability of New York Times to public figures, but refused to expand the protection afforded by that standard to actions brought by private persons, in Gertz v. Robert Welch, Inc., 418 U.S. 323, 344-47, 94 S. Ct. 2997, 3009-10, 41 L. Ed. 2d 789 (1974).
39
Application of the New York Times rule to public figures, the Court observed, is supported by two factors. First, public figures, because they "enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy," are less vulnerable to injury from defamatory statements. Gertz v. Robert Welch, Inc., 418 U.S. at 344, 94 S.Ct. at 3009; see Wolston v. Reader's Digest Association, Inc., 443 U.S. at 164, 99 S.Ct. at 2706. A second consideration, and one that has been given greater weight by the Court, is that public figures, the news media may assume, "have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them." Gertz v. Robert Welch, Inc., 418 U.S. at 345, 94 S.Ct. at 3009. The Court went on to describe two ways in which a person may become a public figure for first amendment purposes.
40
For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.
41
418 U.S. at 345, 94 S. Ct. at 3009. See also Wolston v. Reader's Digest Association, Inc., 443 U.S. at 164, 99 S.Ct. at 2706; Time, Inc. v. Firestone, 424 U.S. 448, 453, 96 S. Ct. 958, 964, 47 L. Ed. 2d 154 (1976). Thus, under the analysis suggested in Gertz v. Robert Welch, Inc., two types of public figures emerge: Those who are public figures for all purposes, and those who are public figures for a limited range of issues.
42
The district court held as a matter of law that plaintiff "had achieved such pervasive fame and notoriety as of ... the date of publication ... that he had become a public figure 'for all purposes and in all context' " (quoting Gertz v. Robert Welch, Inc., 418 U.S. at 351, 94 S.Ct. at 3012). Our review of this conclusion requires that we consider, first, whether plaintiff's purported status as a public figure is appropriate for decision on summary judgment and, second, whether the evidence considered in a light most favorable to plaintiff, shows him to be a public figure for the purposes of this litigation.
43
The Supreme Court has on numerous occasions, treated the public figure and public official questions as matters of law, for the trial court to decide. See, e. g., Time, Inc. v. Firestone, 424 U.S. 448, 96 S. Ct. 958, 47 L. Ed. 2d 154; Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789; Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S. Ct. 669, 677, 15 L. Ed. 2d 597 (1966). This Court has observed in this same context that "where undisputed facts admit to but one conclusion, then, on motion for summary judgment, the court properly decides the issue." Rosanova v. Playboy Enterprises, Inc., 580 F.2d 859, 862 (5th Cir. 1978). Even if summary judgment were improper because of issues of fact that could only be resolved after evidentiary hearing, the trial court, not a jury, must determine whether the evidence showed that plaintiff was a public figure. Brewer v. Memphis Publishing Co., 626 F.2d 1238 (5th Cir. 1980). In the absence of conflicting inferences to be drawn from the record in this case, we conclude the district court was justified in considering the public figure question on summary judgment.
44
The record in this case contains sufficient undisputed facts to show that Rebozo, at the time of publication, was a public figure. As is well known, Rebozo was President Nixon's closest friend while Nixon was in the White House. While this in and of itself has considerable significance, we need not decide whether a confidential relationship with the President of the United States automatically converts one into a public figure, since the record indicates Rebozo had in other ways voluntarily exposed himself to the risk of close public scrutiny.
45
Rebozo played a substantial role in the former President's financial affairs, acting as the President's agent in the management of the President's bank accounts at the Key Biscayne Bank, and in the purchase of two homes. Plaintiff also played a role in the purchase and sale of other investments for the former President. In addition Rebozo's relationship with the President was not confined to counseling on business and financial matters. Rebozo freely admitted he offered his opinions to President Nixon on various matters, and transmitted to the former President the views of other important people on certain policy matters. The two discussed the Watergate situation when it began to arise in late 1973.
46
More significantly for purposes of this case, Rebozo played an active role in the President's 1972 re-election campaign, helping to arrange major contributions for the President's political benefit. The Senate Select Committee on Presidential Campaign Activities, the so-called Watergate Committee, investigated closely Rebozo's role in the 1972 campaign and his involvement in President Nixon's finances, eventually publishing five volumes of data describing Rebozo's connections with the former President and his campaign.
47
Press coverage of Rebozo has focused both upon his relationship to the President and upon his own business and personal affairs, although the public's interest in his activities has certainly been enhanced by his connections with the former President. The record indicates that during the six months prior to October 25, 1973, the date of the Washington Post article, The New York Times published 48 articles mentioning Rebozo, while The Miami Herald published 76. Prominent stories in 1968 and 1971, in The New York Times and Newsday, described Rebozo's business and financial dealings in some detail. Rebozo himself recognized, "(W)hen you are traveling in the circles that I have traveled in, there are press people all over the place."
48
In view of the foregoing, Rebozo, met, as a matter of law, both Gertz v. Robert Welch, Inc., public figure considerations. First, he "enjoy(ed) significantly greater access to the channels of effective communication and hence (had) a more realistic opportunity to counteract false statements than private individuals enjoy." 418 U.S. at 344, 94 S. Ct. at 3009. There is evidence in the record that following publication of the Post article, both The Miami Herald and a major television network published Rebozo's response.
49
Second, on the basis of his voluntary activities, "the communications media (were) entitled to act on the assumption" plaintiff "had voluntarily exposed (himself)" to the risk of close public scrutiny. Gertz v. Robert Welch, Inc., 418 U.S. at 345, 94 S. Ct. 3009. Rebozo's activities including his association with President Nixon, taking part in his financial affairs, and involvement with the re-election effort made him a prime subject of public comment.
50
Accordingly, we affirm the district court's conclusion that for the purposes of this litigation plaintiff Rebozo was a public figure at the time this article was published.
51
III. WAS THE MALICE QUESTION APPROPRIATE FOR RESOLUTION ON SUMMARY JUDGMENT ?
52
The district court, having decided that plaintiff was a public figure, applied the correct standard of liability but held there was no genuine issue of material fact on the question of "actual malice," as defined by New York Times Co. v. Sullivan, 376 U.S. at 279-80, 84 S. Ct. at 725-26. Because we conclude that the facts in this case, taken in a light most favorable to Rebozo, raised such an issue of fact, we reverse the summary judgment entered for defendant.
53
In New York Times Co. v. Sullivan, the Supreme Court held the First Amendment precludes recovery by a public official for defamation unless the plaintiff can prove the statement was made with actual malice. A person has acted with actual malice when a statement is made with knowledge that it was false, New York Times Co. v. Sullivan, 376 U.S. at 279-80, 84 S. Ct. at 725-26, or with a high degree of awareness of the statement's probable falsity, Garrison v. Louisiana, 379 U.S. 64, 74, 85 S. Ct. 209, 215, 13 L. Ed. 2d 125 (1964), or with reckless disregard of whether the statement was false or not, New York Times Co. v. Sullivan, 376 U.S. at 279-80, 84 S. Ct. at 725-26. See Miller v. Transamerican Press, Inc., 621 F.2d 721, 724 (5th Cir. 1980); Long v. Arcell, 618 F.2d 1145, 1147 (5th Cir. 1980). The Supreme Court has further defined the phrase "reckless disregard":
54
There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.
55
St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 1325, 20 L. Ed. 2d 262 (1968) (emphasis added). See Eaton, The American Law of Defamation Through Gertz v. Robert Welch, Inc. and Beyond: An Analytical Primer, 61 Va.L.Rev. 1349, 1370-75 (1975). Recklessness cannot be inferred, however, from the mere combination of falsehood and the defendant's general hostility toward the plaintiff, nor may reckless disregard be inferred from negligence. Greenbelt Cooperative Publishing Association, Inc. v. Bresler, 398 U.S. 6, 10, 90 S. Ct. 1537, 1539, 26 L. Ed. 2d 6 (1970); St. Amant v. Thompson, 390 U.S. at 731, 88 S.Ct. at 1325.
56
The parties argue at some length as to whether summary judgment is a "peculiarly appropriate vehicle for the disposition of libel suits governed by the actual malice standard of New York Times." Appellee's brief at 30. In all candor, there is a certain amount of confusion in our cases on this question. Some of our cases have recognized that the plaintiff's standard of proof on the actual malice issue is higher than other issues and have thus concluded that actual malice is "an issue which lends itself to summary judgment." E. g., Southard v. Forbes, Inc., 588 F.2d 140, 146 (5th Cir. 1979), cert. denied, 444 U.S. 832, 100 S. Ct. 62, 62 L. Ed. 2d 41 (1980). Other cases have suggested that the need under the First Amendment to protect publishers from the chilling effect of a long and expensive trial justifies a presumption in favor of summary judgment. See Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 864-65 (5th Cir. 1970); Time, Inc. v. McLaney, 406 F.2d 565, 566 (5th Cir. 1969). Other cases, however, have recognized that actual malice refers to the mental state of the defendant with respect to the truthfulness of the allegedly defamatory material and that "(p)roof of such a mental state must usually be inferred from circumstances difficult to develop on motion for summary judgment." Vandenburg v. Newsweek, Inc., 441 F.2d 378, 380 (5th Cir.), cert. denied, 404 U.S. 864, 92 S. Ct. 49, 30 L. Ed. 2d 108 (1971). See also Time, Inc. v. Ragano, 427 F.2d 219 (5th Cir. 1970). Even those cases strongly urging summary judgment describe it as proper only where the record is "devoid of genuine issues of fact" on the actual malice question. Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d at 865.
57
In view of this uncertainty, it is appropriate to examine closely the recent Supreme Court authority related to this inquiry. The subjective nature of the evidence a plaintiff must rely on was emphasized by the Supreme Court in Herbert v. Lando, 441 U.S. 153, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979), where it was held that "any direct or indirect evidence relevant to the state of mind of the defendant," id. at 165, 99 S.Ct. at 1643, could be used to support plaintiff's burden of showing actual malice with convincing clarity. The implications of this holding with respect to summary judgment disposition were noted in a case decided that same term, Hutchison v. Proxmire, 443 U.S. 111, 120 n.9, 99 S. Ct. 2675, 2680 n.9, 61 L. Ed. 2d 411 (1979):
58
Considering the nuances of the issues raised here, we are constrained to express some doubt about the so-called "rule." The proof of "actual malice" calls a defendant's state of mind into question, New York Times Co. v. Sullivan, 376 U.S. 254 (84 S. Ct. 710, 11 L. Ed. 2d 686) (1964), and does not readily lend itself to summary disposition. See 10 C. Wright & A. Miller, Federal Practice and Procedure § 2730, pp. 590-592 (1973). Cf. Herbert v. Lando, 441 U.S. 153, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979).
59
Herbert v. Lando also casts serious doubt on the notion that the chilling effect of a long and expensive trial justifies a presumption in favor of summary judgment, at least to the extent that such a presumption exceeds the balance struck between the rights of publishers and defamation plaintiffs in New York Times v. Sullivan. The Court reiterated that the First Amendment does not provide a publisher complete immunity and that if "inhibition flows from the fear of damages liability for publishing knowing or reckless falsehood, those effects are precisely what New York Times and other cases have held to be consistent with the First Amendment." 441 U.S. at 171, 99 S. Ct. 1646, 60 L. Ed. 2d 115. While the Court recognized the burden and expense of pretrial discovery in First Amendment defamation cases, that was not enough, it held, to modify the standard set in New York Times v. Sullivan. 441 U.S. at 175-77, 99 S. Ct. 1648-49, 60 L. Ed. 2d 115.
60
Laying aside the suggestion that the potential chilling effect of the burdens of litigation are in and of themselves grounds for preferring summary judgment, an idea repudiated by Herbert v. Lando, the cases in this Circuit can be reconciled. These cases stand for the principle that the standard of review in First Amendment defamation actions, as in all summary judgment cases, is whether the record, construed in a light most favorable to the party against whom the judgment has been entered, demonstrates there are genuine issues of fact which, if proven, would support a jury verdict for that party. Since, however, a jury verdict in a defamation case can only be supported when the actual malice is shown by clear and convincing evidence, rather than by a preponderance of evidence as in most other cases, Brewer v. Memphis Publishing Co., 626 F.2d 1238, 1258 (5th Cir. 1980), the evidence and all the inferences which can reasonably be drawn from it must meet that higher standard.
61
On this record we conclude the district court was confronted with a genuine issue of material fact on the details of investigator Riley's conversation with Rebozo, and reporter Kessler's review of it. In investigating the story, even though Kessler went to the trouble of calling Riley, he failed to review with Riley the words in Riley's earlier deposition upon which Kessler eventually based the article's lead. Regardless of whether Riley knew at the time of his conversation with Rebozo whether the pledged stock had in fact been stolen, the seminal question may be what Riley actually told Rebozo before the stock was sold to cover the loan. We note in passing that on the second appeal in the conversion case, the Court found that not until December 1968, nearly two months after the stock sale, did E. F. Hutton learn that the stock involved in this case was among those shares that had been missing from its vault. Fidelity & Casualty Co. v. Key Biscayne Bank, 501 F.2d 1322, 1324 (5th Cir. 1974). Despite Kessler's professed belief in the veracity of Riley's deposition testimony, Kessler's resolution of the obvious ambiguity whether Riley told Rebozo the stock was (a) missing, (b) stolen, or (c) missing or stolen, in favor of the most potentially damaging alternative creates a jury question on whether the publication was indeed made without serious doubt as to its truthfulness. St. Amant v. Thompson, 390 U.S. at 732, 88 S.Ct. at 1326.
62
There is, moreover, a material question of fact suggested by Kessler's October 6, 1973 memorandum to his editor, in which the reporter expressed uncertainty about whether the Key Biscayne Bank or Rebozo himself cashed the stock. Kessler stated in that memorandum that if the bank, rather than Rebozo, had actually cashed the stock, the article's proposed lead paragraph would have to be modified. This memorandum, plus the fact that Kessler resolved the uncertainty expressed in it in such a way as to cast plaintiff Rebozo in the worst possible light and to make for Kessler a front-page story of an episode which otherwise might not have commanded any significant attention, when taken in a light most favorable to Rebozo, could amount to evidence of the reporter's reckless disregard for the truth or falsity of the assertion that "Charles G. (Bebe) Rebozo, President Nixon's close friend, cashed $91,500 in stolen stock ...." See St. Amant v. Thompson, 390 U.S. at 731-32, 88 S.Ct. at 1325-26; New York Times v. Sullivan, 376 U.S. at 279-80, 84 S. Ct. at 725-26. Thus we cannot say "the record is devoid of genuine issues of fact as to whether the alleged defamatory statement was published with actual knowledge of its falsity or with reckless disregard of whether it was true or false." Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d at 865. Accordingly, the district court's summary judgment on the question of actual malice is reversed and the case is remanded for further proceedings.
63
REVERSED AND REMANDED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2260673/ | 549 A.2d 1025 (1988)
Frank J. LOMBARDI, et al.
v.
GOODYEAR LOAN COMPANY.
No. 87-526-Appeal.
Supreme Court of Rhode Island.
November 10, 1988.
Paul J. Bordieri, Providence, Frank A. Lombardi, Law Office of Michael Duggan, PC, North Attleboro, for plaintiff.
William J. Riccitelli, Cranaton, for defendant.
OPINION
SHEA, Justice.
This matter is before the Supreme Court on the defendant's appeal from a judgment *1026 for the plaintiffs entered in the Superior Court in an action for declaratory judgment. The Superior Court ruled that the rate of interest on a judgment entered in 1970, that remained unsatisfied, was 6 percent. We affirm.
Frank J. Lombardi, Jean M. Lombardi, and Goodyear Loan Company had been involved in prior litigation which, in 1970, resulted in a judgment for Goodyear for $2,652.94 plus costs and interest at the rate of 6 percent, the statutory rate at that time. Execution on that judgment was issued on June 29, 1970, returnable December 29, 1970. The execution was levied against the Lombardis' real estate in Johnston, Rhode Island, but it was not recorded until December 28, 1981.
In 1986 the Lombardis attempted to satisfy the judgment and execution by tendering to Goodyear the sum of $5,279.35, which represented the judgment, costs, and interest at the rate of 6 percent per annum. Goodyear refused the tender, demanding that the interest be computed at 12 percent per annum. The Lombardis then filed their petition for declaratory judgment against Goodyear, which resulted in this appeal. The Lombardis asked that the court determine the total amount they owed to defendant, including interest. At the time they filed their petition for declaratory judgment, the Lombardis asked for and received permission to deposit in the registry of the court the sum of $9,000 from which the judgment could be satisfied. The Lombardis moved for summary judgment, which motion was granted.
The dispute over the interest rate arises out of the Legislature's amendment of the law covering the interest rate on judgments. That amendment was enacted after the judgment had been entered against the Lombardis but before tender of payment had been made. The amendment was passed in 1981 as Public Laws, 1981 chapter 54. It raised the interest rates specified in G.L. 1956 (1969 Reenactment) §§ 9-21-8, 9-21-10, and G.L. 1956 (1969 Reenactment) § 6-26-1 to 12 percent. Section 3 of chapter 54 specified that the act shall be applied retroactively to all cases pending at the time of its enactment.
Goodyear admits that it had demanded 12 percent interest and asserts that since the 1970 judgment had never been satisfied, the current interest rate of 12 percent should apply retroactively. The Lombardis assert that since the 1970 judgment was not appealed, it was final and not a pending case within the meaning of the amending statute.
On appeal Goodyear asserts that it was improper for the Superior Court to entertain the petition for declaratory judgment in these circumstances.[1] Goodyear also argues that since the Lombardis assert no legal or property right adverse to it, an action for declaratory judgment is therefore improper. It is Goodyear's position that all issues between the parties were adjudicated with the 1970 judgment. Since the Lombardis' attempts to have the court set the interest rate at 6 percent were denied in 1986 and since no appeal was taken from those rulings, the Lombardis should be precluded from bringing this action. We disagree.
The denials of the Lombardis' motions to fix the interest rate were merely denials of the motions made, nothing more. The issue of what was the correct rate was never decided by the court. Goodyear's allegation that the Lombardis assert no adverse legal or property right is also without merit. When one party offers 6 percent interest and the other party will only accept 12 percent, we have adverse interests arising out of a disagreement over the meaning of a statute. That kind of disagreement is expressly within the provisions of G.L. 1956 (1985 Reenactment) § 9-30-2, which reads in part:
"Power to construe. Any person interested under a deed, will, written contract or other writings constituting a contract, *1027 or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder."
This case does not involve the merits of the original action. This is a real and present dispute that can be resolved only by the court's interpretation of the statute. The dispute might have been decided through appeal from the original judgment if the issue had arisen within the period for taking an appeal. However, the judgment was entered in April 1970. The interest rate in the pertinent statutes was amended to 12 percent in 1981. Consequently the only means now available to the parties to resolve this dispute is by way of a petition for declaratory judgment.
This court has held that the decision to grant a remedy under the Declaratory Judgments Act is purely discretionary. Employers' Fire Ins. Co. v. Beals, 103 R.I. 623, 628, 240 A.2d 397, 401 (1968). We have also held that "a decision made in the exercise of a discretionary power should not be disturbed unless it clearly appears that such discretion has been improperly exercised or that there has been an abuse thereof." Berberian v. Travisono, 114 R.I. 269, 273-74, 332 A.2d 121, 124 (1975) (citing Levy v. Equitable Fire & Marine Ins. Co., 88 R.I. 252, 146 A.2d 231 (1958)). The trial justice did not abuse his discretion in hearing and deciding this case.
Goodyear next asserts that the trial justice's interpretation of the retroactive provision of the interest statute was incorrect. The language in question is as follows:
"This act shall take effect upon its passage and shall be given retroactive as well as prospective effect and shall apply to all cases pending upon the effective date of this act." Public Laws 1981, ch. 54, § 3.
The trial justice held that the controversy in the original action was closed in 1970. He said that "[o]nce a judgment is entered in the case as far as this court [is] concerned that ends any action on the case and I don't find that to be a case pending." That holding by the trial justice was supported by this court's decision in Welsh Mfg., Division of Textron, Inc. v. Pinkerton's, Inc., 494 A.2d 897 (R.I. 1985). In that case the court considered the matter of retroactive application of the amended statute, § 9-21-10, on prejudgment interest. The case involved an appeal from a pre-1981 judgment that was finally dismissed in 1984. This court found that the 12 percent interest rate applied because the case had not concluded until the appeals process was exhausted in 1984. The opinion states:
"We believe that the term `judgment' as referred to in § 9-21-10 contemplates a final judgment, one that finally adjudicates the rights of the parties, whether it is a judgment from which no appeal is taken or a judgment that is affirmed by this court after consideration and rejection of the appellant's contentions." (Emphasis added) 494 A.2d at 898.
In the present case once the appeal period passed on the 1970 judgment, that judgment became a final adjudication of the rights and liabilities of the parties. Consequently the applicable interest rate was fixed long before the interest statute was amended. Neither the fact that the judgment remained unsatisfied nor the Lombardis' unsuccessful motions to satisfy and discharge the execution affect the finality of that judgment in any way. Therefore, the trial justice was correct when he ruled that the original case was not a pending matter within the meaning of P.L. 1981, ch. 54, § 3. That referenced legislation had no application to a pre-existing, final, unappealed judgment which had not yet been satisfied.
The final issue raised by Goodyear involves the action of the trial justice in vacating the execution on the grounds that G.L. 1956 (1985 Reenactment) § 9-25-23 required that the execution be levied within one year of the entry of judgment. The $9,000 deposited by plaintiffs into the registry of court is a sufficient sum to protect *1028 defendant's interests. Consequently, defendant was not adversely affected when the execution was vacated.
Although we are not obligated to address this issue, we would observe, however, that the plain language in § 9-25-23 addresses the situation in which a prejudgment attachment has been permitted on the assets of a debtor and a judgment is later obtained. An execution must issue against that attached property promptly, no later than one year from judgment, or the attachment will be vacated unless the effect of the judgment is stayed by appeal or by some action of the court. See In re Gibbons, 459 A.2d 938 (R.I.1983). That section of the law would appear to have no application to a post-judgment execution. Goodyear's appeal on that issue has no merit.
For these reasons the defendant's appeal is denied and dismissed, the judgment appealed from is affirmed, and the papers of the case are remanded to the Superior Court.
NOTES
[1] Goodyear actually argues that the Superior Court lacked jurisdiction to hear the matter. That assertion is patently incorrect. A petition for declaratory judgment is specifically within the jurisdiction of the Superior Court. The issue is whether that court properly exercised its discretion in hearing and granting relief on the petition. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260702/ | 228 N.J. Super. 291 (1988)
549 A.2d 859
MARY LOSCALZO, PLAINTIFF-APPELLANT,
v.
JOSEPH PINI, BUILDING INSPECTOR OF THE BOROUGH OF FAIRVIEW, OSCAR CABRERA AND MARTHA CABRERA, HIS WIFE, DEFENDANTS-RESPONDENTS, AND BOROUGH OF FAIRVIEW, THIRD-PARTY DEFENDANT.
MARY LOSCALZO, PLAINTIFF-APPELLANT,
v.
BOARD OF ADJUSTMENT OF THE BOROUGH OF FAIRVIEW AND OSCAR CABRERA AND MARTHA CABRERA, HIS WIFE, DEFENDANTS-RESPONDENTS.
Superior Court of New Jersey, Appellate Division.
Argued September 19, 1988.
Decided October 5, 1988.
*293 Before Judges PETRELLA, SHEBELL and LANDAU.
*294 Frederick L. Bernstein argued the cause for appellant.
James E. Flynn argued the cause for respondents Cabreras (Ruvoldt & Ruvoldt, attorneys; James E. Flynn, on the brief).
Albert H. Birchwale argued the cause for respondent Board of Adjustment of the Borough of Fairview (Basile, Birchwale & Pellino, attorneys; Albert H. Birchwale, on the brief).
Mark Winkler argued the cause for Borough of Fairview (Woodcock & Kingman, attorneys; Mark Winkler, on the brief).
The opinion of the court was delivered by SHEBELL, J.A.D.
This is an appeal from a judgment of the Law Division in an action in lieu of prerogative writ. A permit was issued by the Borough of Fairview to defendants Oscar and Martha Cabrera for extension of a building according to submitted plans. Construction had commenced when plaintiff Mary Loscalzo filed a verified complaint and obtained an order to show cause with temporary restraints challenging the building official's issuance of the building permit.
While the action was pending, defendants Cabreras filed an application with the Board of Adjustment for variances to permit "addition and alteration" contending that although the building official erred, defendants' reliance on the permit justified the granting of a variance. The Board of Adjustment granted the variances requested. Plaintiff appealed the Board's ruling to the Mayor and Council. A hearing was held before the governing body resulting in the adoption of a resolution reversing the grant of the variances.
Plaintiff filed a second complaint in lieu of prerogative writ challenging the Board's grant of the variances in order to preserve plaintiff's right to challenge the Board's decision in the event the appeal to the Mayor and Council was held to be *295 improper. These two complaints were consolidated by the Law Division.
Plaintiff filed a motion in the Law Division for summary judgment; however, the judge denied plaintiff relief. He agreed that there was no factual dispute and granted summary judgment in favor of defendants. Thereafter, defendants filed formal motions for summary judgment. The judge heard argument and again dismissed plaintiff's complaint. Thereafter, plaintiff, with new counsel, moved for amended findings and a full trial. This motion was dismissed. Plaintiff appeals from these adverse orders.
Defendants' three-story building at 152 Anderson Avenue in Fairview is zoned as B-1 commercial/residential. Defendants seek to utilize the ground floor of their building for their florist business and live in one of two apartments above the store. Prior to their purchase of the building, defendants inquired of the building inspector about expanding the living quarters and the storage area of the existing store. They were informed that such alterations were proper and that they would be issued a permit. On July 1, 1986, defendants were issued a permit by the building inspector, after which they commenced construction.
On August 7, 1986, plaintiff Mary Loscalzo, a resident of the property adjacent to the defendants, filed an action against the building inspector and defendants charging that issuance of the permit violated the zoning ordinance. Plaintiff asserted that despite written notice by her, defendants continued to build. Plaintiff alleged irreparable harm due to the construction and sought to enjoin further construction and to remove the work that had been done.
According to Fairview Zoning Ordinance, Section 15-6.8b, dwelling units on the second and third floors of a mixed commercial/residential building are "conditional uses requiring approval of the planning board." Defendants applied to the Board of Adjustment stating that they were prevented from *296 complying with the zoning ordinance because their "property cannot be commercially utilized as the other surrounding commercial property and these facts constitute exceptional circumstances...." Defendants sought a "special exception" from the ordinance, claiming that "[a]ll other buildings in the surrounding area have substantial lot coverage more or less as the same lot coverage proposed by the applicant. Therefore, said addition by the applicant will be in conformity with the surrounding buildings and neighborhood." Finally, defendants claimed as "special reasons" that they "had already expended close to $200,000 based on the reliance on the building inspector of the Borough of Fairview and the addition is approximately 75% completed."
The B-1 zone required a minimum lot dimension of 5,000 square feet whereas defendants' lot is 2,300 square feet. Defendants sought 75% lot coverage where only 25% was permitted, and although a 10 foot rear yard is required and there must be at least 10 feet on one side of any structure in this zone, defendants proposed to build within 6 feet of the rear property line and 3 feet of the property line on one side of the structure with zero setback on the other side. When purchased, defendants' structure housed a laundromat on the lower level and two apartments above. After expansion, the building was still to have a store and two apartments.
The building inspector testified before the Board of Adjustment that the area surrounding defendants' premises is "basically a mixed area," with buildings generally three stories in height and "the majority of them having a business on the grade level." He stated most have party walls, and the majority of the buildings have lot coverage in excess of 75%. He added that plaintiff's property has 90% lot coverage and is a three or four story building. He testified that the building would pose no problem concerning police or fire access to the surrounding area. The building inspector claimed he had inadvertently utilized an outdated zoning map in issuing the building permit.
*297 Plaintiff opposed the variances because the almost completed addition was depriving her of light and air, and resulting in loss of rent from tenants moving because defendants' building blocked the windows in plaintiff's building. According to plaintiff, she must use her lights constantly, even on a sunny day, and her air flow has been practically extinguished. Plaintiff claimed that emergency vehicles would be denied access to her building because of the lack of any setback on the south side of defendants' property.
Plaintiff presented testimony of a licensed professional planner that defendants' existing dwelling is a "pre-existing non-conforming use" because of its classification under the borough ordinance as a conditional use and therefore the application constitutes "an expansion of a non-conforming use" requiring a variance under section d of N.J.S.A. 40:55D-70. The Board's attorney offered his opinion that "we are not talking about a non-conforming use, we are talking about a non-conforming structure, the expansion of a non-conforming structure. Since it is existing and we are expanding on this, you only need a Hardship Variance [pursuant to section c of N.J.S.A. 40:55D-70], not a Use Variance."
The question also arose as to whether a variance would be needed for parking spaces. Fairview Zoning Ordinance, Section 15-10.14, states:
Building Prohibition; Parking Spaces. No building or premises shall be used nor shall any building be built or erected, nor shall any building be altered so as to expand its usable floor area unless there is provided offstreet parking space in accordance with the following schedule:
....
Two family dwelling 3 spaces
....
Retail stores 1 space per 200 square feet of sales
area.
[Emphasis supplied].
*298 The Board was advised by its attorney that a variance from parking requirements was not required because "usable floor area" only refers to retail purposes, "meaning where the customers congregate," and not for expansion of "personal space." Plaintiff noted that the clear language of the ordinance required provision for parking for this expansion. The Board decided no parking variance was required. It granted the requested variances for lot size and side and rear yard requirements. The Board found:
there would be no substantial detriment to the public good if the variance was granted and further that the applicant would be subjected to undue hardship if they were forced to conform to the ordinance.
In reversing the grant of the variances, the governing body gave the following reasons:
1. The property is located in the B-1 Zone, which zone was created by an amendment of the Zoning Ordinance enacted prior to the Cabreras' purchase of the premises in question.
2. That amendment was adopted in an effort to improve the area along Anderson Avenue by encouraging redevelopment of the land and buildings to provide adequate light, air and parking and to ensure the maintenance of open spaces. The variance approved by this application would have the opposite effect. It would decrease the light and air available to the Loscalzo property by permitting the Cabreras' to extend the existing building to its property line. It would permit the existing building to be extended an additional 47 feet doubling the land use and covering 90% of the lot thereby increasing the usable floor area without providing any off-street parking as required by Section 15:10-1 of the Zoning Ordinance. Indeed, the Board of Adjustment held that no variance for parking was required notwithstanding the clear contrary language of the Parking Ordinance.
3. The number and the extent of variances granted are detrimental to the public good and will substantially impair the intent and purpose of B-1 Zone Amendment, and the Master Plan. There would be no sidelines, the rear yard set back would be six feet at one point, and the variances would permit 65% more coverage than the ordinance allows. The application as submitted and approved constitutes an abandonment of the Zoning Ordinance and Master Plan rather than a variance.
4. The applicant did not establish a hardship. The reason given by the Cabreras' for the increase in overall size of the building was that with the expansion they could increase the amount of business. Further, the Cabreras' knew or should have known what the zoning requirements were at the time they purchased. The variance as granted would create a hardship for the neighbors and citizens by permitting overbuilding on this undersized lot.
*299 Under ordinance section 15-6.8b, defendants' use of their building is classified as a "conditional use." New Jersey's Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 et seq., defines "conditional use" as
a use permitted in a particular zoning district only upon a showing that such use in a specified location will comply with the conditions and standards for the location or operation of such use as contained in the zoning ordinance, and upon the issuance of an authorization therefor by the planning board. [N.J.S.A. 40:55D-3].
The statutory basis for conditional use zoning provisions is N.J.S.A. 40:55D-67, which provides:
a. A zoning ordinance may provide for conditional uses to be granted by the planning board according to definite specifications and standards which shall be clearly set forth with sufficient certainty and definiteness to enable the developer to know their limit and extent. The planning board shall grant or deny an application for a conditional use within 95 days of submission of a complete application by a developer to the administrative officer, or within such further time as may be consented to by the applicant. [Emphasis supplied].
Defendants' application was to expand a conditional use. A conditional use may be viewed as a permitted use in the zone provided all conditions are met. N.J.S.A. 40:55D-3; see Cox, New Jersey Zoning and Land Use Administration, 193-94 (1988). The ordinance, however, fails to set forth any "specifications and standards" which must be met in order to satisfy the criteria of a conditional use. To this extent the ordinance is deficient. See N.J.S.A. 40:55D-67.
While we need not decide whether the application should have been to the Planning Board or the Board of Adjustment, we believe some discussion of the issue is appropriate.
If the variance sought were for a deviation from a duly ordained special standard of a conditional use, N.J.S.A. 40:55D-70d would apply. It provides in relevant part:
The board of adjustment shall have the power to:
....
d. In particular cases and for special reasons, grant a variance to allow departure from regulations pursuant to article 8 of this act, to permit ... (3) deviation from a specification or standard pursuant to section 54 of P.L. *300 1975, c. 291 (C. 40:55D-67) pertaining solely to a conditional use. ... [Emphasis supplied].
Justice Hall, in his concurring opinion in Harvard Ent., Inc. v. Bd. of Adj. of Tp. of Madison, 56 N.J. 362, 369 (1970), made it clear that a plaintiff's request for a variance from the section of the ordinance dealing solely with the standards or conditions of a "special exception" use required a use variance under N.J.S.A. 40:55-39(d), the predecessor to 40:55D-70d. Id. at 369-70. As shown by the statute's amendment in 1984, the Legislature agreed with Justice Hall and codified his reasoning in the "d" variance section.
Jurisdiction lies exclusively with the planning board where the proposed development requires conditional use approval, but if the application also requires "c" type or "hardship" variance relief, the planning board has the power to grant such relief. See Sponsor's Statement to Assembly No. 1169 L. 1984, c. 20, N.J.S.A. 40:55D-70c. The Board of Adjustment did not believe a use type variance was required, and they proceeded to grant a "c" variance, pursuant to either c(1) or c(2).
We need not determine the procedural or jurisdictional issues raised because it is clear that defendants' application falls short of meeting the standards required for either a "c" or "d" variance. To receive a "d" variance where, as here, the use for which a variance is sought is not one that inherently serves the public good, "the applicant must prove and the board must specifically find that the use promotes the general welfare because the proposed site is particularly suitable for the proposed use." Medici v. BPR Co., 107 N.J. 1, 4 (1987). "[T]he statutory special reasons standard can also be addressed by proof of undue hardship, i.e., that the property cannot reasonably be developed with a conforming use." Id. at 4, n. 1.
In determining whether an applicant has established the requisite "special reasons" to grant a variance, only those special reasons which advance the general purposes of zoning, *301 set forth at 40:55D-2, may be considered. See Medici, 107 N.J. at 10, 18; Andrews v. Ocean Twp. Board of Adjustment, 30 N.J. 245, 250-51 (1959). The record indicates that the proposed expanded structure would contravene at least two of the general purposes of MLUL, namely, N.J.S.A. 40:55D-2b, "[t]o secure safety from fire ..." and c, "[t]o provide adequate light, air and open space." That the municipality might obtain a tax advantage if the proposed structure allowed a larger profit for the business, and that the surrounding property values would be enhanced, cannot support the grant of a use variance. See Odabash v. Mayor and Coun. Dumont, 65 N.J. 115, 120 (1974); Degnan v. Monetti, 210 N.J. Super. 174, 183 (App.Div. 1986). Defendants stress and the Board used as a justification for the variance the large number of non-conforming structures in the neighborhood where defendants' building is located. This, however, is not a criterion on which special reasons may be based. See Medici, 107 N.J. at 18-22; Ward v. Scott, 11 N.J. 117, 128 (1952).
Defendants attempted to prove "special reasons" in the form of undue hardship, in connection with a c(1) variance. Under Medici, 107 N.J. at 4, n. 1; at 17, n. 9, proof that the property is not reasonably adapted to a conforming use would satisfy the requirement of special reasons. "[E]conomic inutility" might in certain circumstances be acceptable as a special reason. See generally New Jersey Zoning and Land Use Administration, supra, at 83-86. However, defendants' argument was limited to the proposition that by expanding their structure they would increase the productivity of their business. An applicant's inability to make the most profitable use of the property is not enough to show economic inutility. See Cerdel Constr. Co., Inc. v. East Hanover Tp., 86 N.J. 303, 307 (1981); Charlie Brown of Chatham v. Board of Adjustment, 202 N.J. Super. 312, 329 (App.Div. 1985).
The Board's resolution appears to indicate that it was granting a c(1) variance, based on its conclusion that the "applicant *302 would be subjected to undue hardship if they were forced to conform to the ordinance." We conclude, however, that defendants' application did not warrant the granting of variances under either c(1) or c(2) of N.J.S.A. 40:55D-70 which state:
c. (1) Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation pursuant to article 8 of this act [40:55D-62 et seq.] would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property, grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship; (2) where in an application or appeal relating to a specific piece of property the purposes of this act would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to article 8 of this act; provided, however, that no variance from those departures enumerated in subsection d. of this section shall be granted under this subsection; and provided further that the proposed development does not require approval by the planning board of a subdivision, site plan or conditional use, in conjunction with which the planning board has power to review a request for a variance pursuant to subsection 47 a. of this act [40:55D-60]....
Prior to the 1984 amendment to the MLUL, only the traditional "hardship" variance was permitted under subsection c. With the amendment, c(2) was added in order to "broaden the c. variance by adding alternative criteria therefor and to limit the d. variance to major specific types of variances." Sponsor's Statement to Assembly Bill No. 1169, L. 1984, c. 21. See Kaufmann v. Planning Bd. for Warren Tp., 110 N.J. 551, 558-63 (1988).
The hardships referred to in the record are the economic impact upon defendants if the variance is not granted, first because they will not be able to use their property to the full extent the surrounding properties are utilized, and second, because the expansion is nearly complete and substantial sums of money have been expended. These hardships only constitute "personal hardship;" however, as under the provisions of c(1), *303 the hardships must relate to the specific piece of property. "Personal hardship" as distinguished from hardship arising out of the conditions peculiar to the particular piece of property, does not support the granting of a hardship variance under c(1). Irving Isko, et als. v. Planning Bd. of Tp. of Livingston, et als., 51 N.J. 162, 174 (1968). It has been said that
"hardship" which is unrelated to the physical characteristics of the land is not contemplated by the statute. The fact that the applicant stands to lose money already expended on an improvement is also not "hardship" as contemplated by the statute. See e.g. Place v. Bd. of Adjust. of Saddle River, 42 N.J. 324, 331 (1964). The fact that the applicant stands to make less money without a variance than he would with a variance is likewise not "hardship" as contemplated by the statute. See e.g. Trinity Baptist v. Louis Scott Hold., 219 N.J. Super. 490, 499-500 (App.Div. 1987); Hill Homeowners v. Passaic Zon. Bd. of Adj., 129 N.J. Super. 170, 175 (Law Div. 1974), aff'd 134 N.J. Super. 107 (App.Div. 1975). [New Jersey Zoning and Land Use Administration, supra, at 63].
Plaintiff's claims are thus for personal hardship only, and do not constitute a sufficient basis for a c(1) variance. Defendants' application also did not warrant the granting of a c(2) variance. As stated by the Supreme Court in Kaufmann, supra, the c(2) language was added by the Legislature to address "a very narrow band of cases in which the standard would fall somewhere between the traditional standards of `hardship,' on the one hand, and `special reasons,' on the other." 110 N.J. at 560-61. Variances granted under this section, however, must still advance the purposes of the MLUL. Id. at 561. Kaufmann stresses that the c(2) variance is fundamentally different than a c(1) grant, and that a c(2) grant "must be rooted in the purposes of zoning and planning itself and must advance the purposes of the MLUL." Id. at 562.
By definition, then, no c(2) variance should be granted when merely the purposes of the owner will be advanced. The grant of approval must actually benefit the community in that it represents a better zoning alternative for the property. The focus of a c(2) case, then, will be not on the characteristics of the land that, in light of current zoning requirements, create a "hardship" on the owner warranting a relaxation of standards, but on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community. [Id. at 563; emphasis in original].
*304 The proofs here demonstrate that the variance was granted to advance the purposes of the owner. There is no support for the proposition that the community will benefit due to improved zoning if the variance is granted.
Pursuant to N.J.S.A. 40:55D-70, the applicant must also be able to establish certain "negative criteria," which the statute describes as follows:
No variance or other relief may be granted under the terms of this section unless such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.
Under Medici, the negative criteria must be established by an "enhanced quality of proof and clear and specific findings by the board of adjustment that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance." 107 N.J. at 21. Even in the absence of the Medici "enhanced proof" requirements, which were handed down on June 3, 1987 before the Board of Adjustment's decision, defendants have not sustained their burden on the negative criteria as they must still show that the variance will not be detrimental to the public good or impair the zoning plan. Medici, 107 N.J. at 22, n. 12; Conlon v. Bd. of Public Works, Paterson, 11 N.J. 363, 369 (1953). It is the applicants' burden to prove that the borough's zoning plan will not be substantially impaired. Weiner v. Zoning Bd. of Adjust. of Glassboro, 144 N.J. Super. 509, 516 (App.Div. 1976), certif. den. 73 N.J. 55 (1977). This requires an evaluation of the effect of the proposed variance on the surrounding properties. See Yahnel v. Bd. of Adjust. of Jamesburg, 79 N.J. Super. 509, 519 (App. Div.), certif. den. 41 N.J. 116 (1963).
The governing body found that the variances granted were detrimental to the public good and that they would substantially impair the purposes of the zoning plan. They also found that the "application as submitted and approved constitutes an abandonment of the Zoning Ordinance and Master Plan rather than a variance." We give no weight to these findings for purposes *305 of our decision except to note that the views of that body are amply supported by the record.
The only language in the resolution of the Board of Adjustment which addresses the negative criteria is as follows:
G) The Board determined that many buildings in the immediate area do not meet the zoning requirements of the Borough of Fairview which would include minimum lot dimensions, maximum lot coverage, lack of any side yard, and lack of any rear yard. The Board further determined that the existing structure is equal to the average set back within 100 feet either side of the subject property.
H) The Board determined that there would be no substantial detriment to the public good if the variance was granted and further that the applicant would be subjected to undue hardship if they were forced to conform to the ordinance.
These findings are inadequate. As stated in Medici, 107 N.J. at 23:
a conclusory resolution that merely recites the statutory language will be vulnerable to the contention that the negative criteria have not been adequately established. The board's resolution should contain sufficient findings, based on the proofs submitted, to satisfy a reviewing court that the board has analyzed the master plan and zoning ordinance, and determined that the governing body's prohibition of the proposed use is not incompatible with a grant of the variance.
Even pre-Medici cases held that mere recitals of testimony do not satisfy the Board's statutory responsibility to make findings of fact. See Degnan v. Monetti, 210 N.J. Super. 174 (App.Div. 1986); Parisi v. North Bergen Mun. Port Authority, 206 N.J. Super. 499 (App.Div.), aff'd in part, rev'd in part 105 N.J. 25 (1985). The "negative criteria" as delineated in N.J.S.A. 40:55D-70 has thus not been met.
We conclude that defendants failed to meet their burden of proof so as to entitle them to either "c" or "d" variances. We are also convinced that the Board of Adjustment's interpretation of the parking standard was clearly erroneous.
Defendants urge that they relied in good faith on the building permit that was issued and that the construction which took place should not be removed based on the law of estoppel. We need not consider whether defendants continued at their own peril to alter their building even after plaintiff filed suit or whether the continued construction was reasonably necessary *306 to protect the investment defendants had made to that point as we find no authority to apply estoppel principles.
This is not a situation such as confronted the court in Jantausch v. Borough of Verona, 41 N.J. Super. 89 (Law Div. 1956), aff'd 24 N.J. 326 (1957). There, the building inspector's view of the ordinance was well-founded and reasonable. Here, regardless of the good faith of the building inspector, issuance of the permit was beyond his authority since clearly a conditional use was sought to be expanded. This required no less than planning board approval under the law. The building permit was invalidly issued, without compliance with or authorization of the ordinance, id. at 94, and thus "cannot ground any rights in the applicant." Hilton Acres v. Klein, 35 N.J. 570, 581 (1961).
The judgment of the Law Division is reversed. The matter is remanded for an appropriate remedial order. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260795/ | 124 Cal.Rptr.2d 359 (2002)
101 Cal.App.4th 605
The PEOPLE, Plaintiff and Respondent,
v.
RANGER INSURANCE COMPANY, Defendant and Appellant.
No. C038457.
Court of Appeal, Third District.
August 26, 2002.
Rehearing Denied September 25, 2002.
Review Denied November 13, 2002.
*360 E. Alan Nunez, Fresno, and Nunez & Bernstein, for Defendant and Appellant.
Karen Keating Jahr, County Counsel, John L. Loomis, Senior Deputy County Counsel for Plaintiff and Respondent.
BLEASE, Acting P.J.
Ranger Insurance Company (Ranger) appeals from an order refusing to discharge an order of forfeiture and exonerate bail, and a summary judgment entered against it, pursuant to Penal Code sections 1305 and 1306.[1] On appeal, Ranger contends the summary judgment was void for lack of jurisdiction. We reject this argument, and affirm the judgment, and sanction Ranger and its counsel, E. Alan Nunez, for a frivolous appeal.
STATEMENT OF FACTS
On January 25, 1999, Ranger posted a bond on behalf of William Jerome Nolan. When Nolan failed to appear on December 1, 1999, the court ordered the bond forfeited and mailed notice that same day to Ranger.
On May 10, 2000, Ranger filed a motion to extend the bail forfeiture date, pursuant to section 1305.4 and requested an extension for an additional 180 days.[2] Pursuant to Ranger's request, the hearing on the motion was set for June 5, 2000, at which time the court granted Ranger's motion. Thus, time for bail forfeiture was extended to November 22, 2000. Summary judgment was entered on January 2, 2001, well within the 90 days from forfeiture allowed by section 1306.
DISCUSSION
It is well settled that the forfeiture or exoneration of bail is an entirely statutory procedure, and that the statutes governing the procedures are to be strictly construed in favor of the surety. (People v. Ranger Ins. Co. (1998) 66 Cal.App.4th 1549, 1552, 78 Cal.Rptr.2d 763.) Section 1305 provides for circumstances in which the surety may have the bail forfeiture set aside. It imposes a 180-day jurisdictional time limit (from the time of forfeiture) in which such relief can be granted. The 180-day period is extended by five days if the notice of forfeiture is mailed. (§ 1305, subd. (b).) After the expiration of this 185-day period, the court has 90 days within which to enter summary judgment. (§ 1306, subd. (c).)
It is these jurisdictional time frames upon which Ranger's argument rests. Ranger argues the 185 days expired on June 4, 2000, and the court was without jurisdiction to extend the time on June 5, 2000. This argument fails because Ranger has miscounted the days.
The 185-day period began to run on December 1, 1999, when the court mailed its notice of forfeiture to Ranger. Ranger says the 185th day was Sunday, June 4, 2000. It was not. The year 2000 was a leap year, so that February had 29, not 28 days. The 185th day was Saturday, June 3, 2000.
On June 3, 2000, Code of Civil Procedure section 12a provided in relevant part:
*361 "If the last day for the performance of any act provided or required by law to be performed within a specified period of time shall be a holiday, then that period is hereby extended to and including the next day which is not a holiday. The term `holiday' as used herein shall mean all day on Saturdays, all holidays specified in Section 6700 and 6701 of the Government Code, other than the holidays specified in subdivisions (c) and (f) of Section 6700 of the Government Code...."[3] (Stats.1994, ch. 1011, § 2, p. 6169.) Section 6700 of the Government Code provided in relevant part, as it does now: "The holidays in this state are: [¶] (a) Every Sunday." "Where, as here, the 185th day within which a motion for extension [of a bail forfeiture date] [must be filed falls on a holiday, the principle of strict construction in favor of the surety requires that Code of Civil Procedure section 12a apply." (People v. International Fidelity Ins. Co. (2001) 92 Cal.App.4th 470, 474, 112 Cal.Rptr.2d 1.)
In this case, as we have noted, the 185th day fell on Saturday, June 3, 2000, a holiday. The next day, Sunday, June 4, 2000, was also a holiday. The first day which was not a holiday was Monday, June 5, 2000, which was the day the court lawfully granted Ranger's motion. (Former Code Civ. Proc., § 12a; People v. International Fidelity Ins. Co., supra, 92 Cal.App.4th at pp. 474-75, 112 Cal.Rptr.2d 1.)
Had Ranger correctly counted the days in this case, with reference to a calendar of the year 2000, Ranger should have known its appeal was utterly without merit. In addition, we note that, apart from this matter of miscounting days, case law uniformly holds that Ranger would be estopped from asserting a jurisdictional defect, because Ranger itself moved to extend time of forfeiture at a time when, Ranger now asserts, the court lacked jurisdiction. (County of Los Angeles v. Ranger Ins. Co. (1999) 70 Cal.App.4th 10, 18-19, 82 Cal.Rptr.2d 214; People v. National Automobile and Casualty Insurance Co. (2000) 82 Cal.App.4th 120, 124-127, 97 Cal.Rptr.2d 858; People v. Frontier Pacific Insurance Co. (2000) 83 Cal. App.4th 1289, 1294, 100 Cal.Rptr.2d 433.) The authority relied upon by Ranger County of Los Angeles v. National Automobile & Casualty Insurance Co. (1998) 67 Cal.App.4th 271, 79 Cal.Rptr.2d 5was overruled by statutory amendment to section 1305.4 effective January 1, 2000. (People v. National Automobile and Casualty Ins. Co., supra, 82 Cal.App.4th at p. 125, fn. 3, 97 Cal.Rptr.2d 858.)
We have previously issued an Order to Show Cause re Frivolous Appeal to Ranger and its counsel on appeal. The hearing was held on July 16, 2002. The legal analysis above, combined with Nunez's replies when confronted with this analysis, convinces us beyond any doubt that Nunez and Ranger filed a frivolous appeal.
A simple review of a year 2000 calendar would have revealed there was no factual predicate for this appeal. Upon being confronted with this error, Nunez responded he "omitted to notice" that the 185th day was a Saturday. He maintained this omission was not done with any intention to mislead the court or with any improper notice.
The sole authority upon which Nunez and Ranger rest this appeal has been disagreed with by three published cases, including one from this court. (County of Los Angeles v. Ranger Ins. Co., supra, 70 Cal.App.4th PP. 18-19, 82 Cal.Rptr.2d 214; People v. National Automobile and *362 Casualty Insurance Co., supra, 82 Cal. App.4th at pp. 124-127, 97 Cal.Rptr.2d 858; People v. Frontier Pacific Insurance Co., supra, 83 Cal.App.4th at p. 1294, 100 Cal.Rptr.2d 433.) The surety was the defendant in one of those cases, and Nunez was the attorney on all three of the cases. There are no facts in this case which would remove this case from the holdings in these three decisions.
Despite being the attorney of record in each of these cases, Nunez did not cite any of them in his opening brief. He did attempt to superficially distinguish two of them in his reply brief, but at no point in these proceedings did he even mention the Frontier case. When asked directly about Frontier, Nunez maintained he did not recall it, and that "somehow" he missed it. He also continued his refrain that any such omission was not done with any improper motive or with any intent to mislead the court.
Not only was the sole authority upon which Nunez and Ranger relied disagreed with, it was superseded by statutory amendment to section 1305.4, made effective January 1, 2000. Section 1305.4 now provides that motions filed within the 185day period may be ruled upon within 30 days after the period expires. (People v. National Automobile and Casualty Ins. Co., supra, 82 Cal.App.4th at p. 125, fn. 3, 97 Cal.Rptr.2d 858.) The statutory amendment was argued by respondent and ignored by Nunez and Ranger.
In his return Nunez claimed it was arguable the statute did not apply to this case, but he did not make an argument. It is clear to us the statute does apply. The amendment to section 1305.4 took effect in January 1, 2000. Ranger's motion to extend time under section 1305.4 was filed in May 2000. There is no legitimate argument that the amended statute would not control.
When confronted with this statutory amendment to section 1305.4, which overrules his sole authority, Nunez replied there had been no cases interpreting section 1305.4 and its applicability to this factual setting. Once again, this claim was spurious. In People v. National Automobile and Casualty Ins. Co., supra, 82 Cal. App.4th at page 125, footnote 3, 97 Cal. Rptr.2d 858, the court specifically stated County of Los Angeles v. National Automobile & Casualty Insurance Co., supra, 67 Cal.App.4th 271, 79 Cal.Rptr.2d 5 was overruled by the amendment to section 1305.4. When confronted with this authority, Nunez claimed he did not remember this case, a case on which he again was the attorney. Further, this amendment does not require court interpretation. Section 1305.4 was amended to allow a motion to extend to be "filed and calendared as provided in subdivision (i) of Section 1305." (§ 1305.4.) Section 1305, subdivision (i) provides, "A motion filed in a timely manner within the 180-day period may be heard within 30 days of the expiration of the 180-day period." This language could not be more plain.
We find Nunez's claims of ignorance and forgetfulness disingenuous. Nunez is a specialist in this area of law. Nunez was the attorney of record on each of the three cases cited above, including Frontier. It strains credulity to believe that a specialist in the area was unaware of recent, relevant case law directly on the issue he sought to appeal when he was the attorney of record on each of those cases. It also strains credulity that Ranger was unaware of any such authority, as they were the defendant in one of the cases, County of Los Angeles v. Ranger Ins. Co., supra, 70 Cal.App.4th 10, 82 Cal.Rptr.2d 214.
"[A]n appeal should be held to be frivolous only when it is prosecuted for an *363 improper motiveto harass the respondent or delay the effect of an adverse judgmentor when it indisputably has no meritwhen any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.]" {In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650, 183 Cal.Rptr. 508, 646 P.2d 179, italics added.)
In the circumstances, we conclude that this appeal "indisputably has no merit" in that "any reasonable attorney would agree that the appeal is totally and completely without merit." {In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650, 183 Cal. Rptr. 508, 646 P.2d 179.) A critical fact was completely omitted from appellant's briefs. The sole authority upon which Nunez rests his appeal has been disagreed with by three published cases, including one from this court, and has been superseded by statutory amendment. This district and two others have decided this issue adversely to appellant. The surety was the defendant in one of those cases, and Nunez was the attorney on all three of those cases. There are no facts in this case which would remove this case from these three published decisions. In these circumstances we have no difficulty in inferring that this appeal is so entirely devoid of merit it must have been pursued for an improper purpose.
Having issued an Order to Show Cause re: Frivolous Appeal and having considered all the papers and arguments of the parties in connection therewith, the court now orders appellant Ranger Insurance Company, and its attorney E. Alan Nunez, jointly and severally, to pay the sum of $3,467 to the County of Shasta and to pay the sum of $10,000 to the clerk of this court as sanctions for a frivolous appeal. (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 36, 96 Cal.Rptr.2d 553.) Such sanctions shall be payable within 30 days of the filing of the remittitur. This opinion constitutes a written statement of our reasons for imposing sanctions. {Flaherty, supra, 31 Cal.3d at p. 654, 183 Cal.Rptr. 508, 646 P.2d 179.)
DISPOSITION
The judgment is affirmed. We assess sanctions against appellant and its counsel, jointly and severally, in the amount of $3,467 to County of Shasta and in the amount of $10,000, payable to the clerk of this court, within 30 days after the filing of the remittitur. Pursuant to the requirements of Business and Professions Code section 6086.7, subdivision (c), the clerk of this court shall forward a copy of this opinion to the State Bar of California.
We concur: SIMS, and NICHOLSON, JJ.
NOTES
[1] Unless otherwise indicated all further statutory references are to the Penal Code.
[2] This important fact was conveniently omitted from Ranger's statement of facts.
[3] Code of Civil Procedure section 12a was amended in 2001 in ways that made no change in the statute that is pertinent to this case. (See Stats.2001, ch. 542, § 2.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260924/ | 632 F.Supp. 437 (1986)
COMPTROLLER OF the CURRENCY, Plaintiff,
v.
T. Bertram LANCE, Defendant.
Civ. A. No. C86-19R.
United States District Court, N.D. Georgia, Rome Division.
March 31, 1986.
*438 Ellen Broadman, Office of the Comptroller of the Currency, Washington, D.C., for plaintiff.
John D. Hawke, Arnold & Porter, Jamie S. Gorelick, Miller, Cassidy, Larroca & Lewin, Washington, D.C., Anthony L. Cochran, Chilivis & Grindler, Kenneth L. Millwood, Smith, Gambrell & Russell, Atlanta, Ga., for defendant.
ORDER
HAROLD L. MURPHY, District Judge.
The complaint in this case was filed on August 30, 1985, by the plaintiff against the Calhoun First National Bank (Bank) and T. Bertram Lance. The plaintiff, the Comptroller of the Currency, is a federal agency with authority, inter alia, to administer and enforce the reporting and proxy provisions of the Securities Exchange Act of 1934 (Exchange Act) against entities with securities registered at the office of the Comptroller of the Currency. The Bank is a national banking association located in Calhoun, Georgia, with its common stock registered with the Comptroller. *439 The Bank and its officers and agents are thus subject to the securities laws, and regulations promulgated under the Exchange Act, and their compliance with those laws and regulations is enforced by the Comptroller. The complaint, filed in the United States District Court for the District of Columbia, alleged that the defendants had engaged in acts and practices which constitute violations of Section 14(a) of the Exchange Act, 15 U.S.C. § 78n(a), and Regulations promulgated under 12 CFR §§ 11.5 and 11.51, for a failure to disclose material information required to be filed with the Comptroller. In addition the complaint alleged that the defendants had engaged in acts and practices which constitute violations of Section 13(a) of the Exchange Act, 15 U.S.C. 78m(a) and Regulations promulgated under 12 CFR §§ 11.4 and 11.42, for a failure to disclose material information in reports required to be filed with the Comptroller.
Numerous motions were filed in the case, including defendant's motion for a change of venue to this Court. By a memorandum order filed December 20, 1985, the United States District Court for the District of Columbia granted the defendant's motion to transfer. Following the change of venue the case came on for a status conference before this Court on February 21, 1986. At that time a consent order was signed by the Court that eliminated the Bank from any further participation in the litigation. The Court, after conferring with counsel, dismissed several motions as moot, or as withdrawn by the parties.
The case is now before the Court on several motions previously filed by the defendant. The defendant has moved the Court to dismiss the complaint for lack of subject matter jurisdiction and for a failure to state a claim upon which relief can be granted. Defendant has also moved for a stay based on parallel civil and criminal proceedings. Finally, defendant has filed a motion to compel and to seal certain matters. For the reasons set forth below defendant's motions to dismiss and to stay are hereby denied. Defendant's motion to seal is granted and the motion to compel is stayed. The Court shall consider the motions seriatim.
SUBJECT MATTER JURISDICTION
The defendant has moved the Court to dismiss the complaint under Fed.R.Civ.P. 12 for a lack of subject matter jurisdiction. Specifically, defendant argues that the comptroller does not have the statutory authority to file a civil action against him without the concurrence and participation of the Department of Justice. The defendant cites to the plenary power and supervision over government litigation granted to the Attorney General in 28 U.S.C. §§ 516 and 519. The defendant admits that the comptroller has substantive authority to administer and enforce the provisions referred to in the complaint, namely 15 U.S.C. §§ 78n(a) and 78m(a). However, the defendant argues that the enforcement power of the comptroller under 15 U.S.C. § 781(i) does not include the ability to sue.
The defendant cites to ICC v. Southern Railway, 543 F.2d 534 (5th Cir.1976), to support their contention that the Attorney General's plenary power over agency litigation cannot be ignored unless "the agency is given specific authorization to proceed without the assistance or supervision of the Attorney General." 543 F.2d at 537-38. It is the defendant's contention that the comptroller lacks the authorization necessary to proceed here.
In further support of their motion defendant cites to FTC v. Guignon, 390 F.2d 323 (8th Cir.1968) in which the FTC was found not to have authority to seek enforcement of its own subpoenas in federal court. The defendant notes the court's finding in Guignon that the authority of an agency to appear in court on its own must be based on clear statutory authorization. 390 F.2d at 325. The Defendant also refers to In re Ocean Shipping Antitrust Litigation, 500 F.Supp. 1235 (S.D.N.Y. 1980) in which the Federal Maritime Commission was found to be without authority to independently move to intervene in a civil action involving the Sherman Antitrust *440 Act. The court there referred to the powers conferred on the Attorney General by 28 U.S.C. §§ 516 and 519 and noted the Attorney General's supervisory role in litigation involving regulatory agencies. 500 F.Supp at 1239.
The defendant further noted that the Federal Home Loan Bank Board was without power to sue or be sued and that the Secretary of the Treasury, who directs the Office of the Comptroller, does not have the authority to file a civil action on his own.
The plaintiff responded by asserting that the defendant's arguments are unsupported by the language and legislative history of the relevant Exchange Act provisions, and that the judicial precedents cited by the defendant are inapposite. The plaintiff agrees that 28 U.S.C. §§ 516 and 519 confer plenary power and supervision over government agency litigation on the Attorney General, but argues that the exception, as "authorized by law", should apply here. Under Section 12(i) of the Exchange Act, the Comptroller has those "powers, functions and duties vested in the [SEC] to administer and enforce ..." certain portions of the Exchange Act (emphasis added). Those sections which the Comptroller may enforce include the sections which form the basis of the complaint before the court, 15 U.S.C. §§ 78m(a) and 78n(a). The plaintiff argues, and the Court agrees, that this grant of authority is precisely the type of authorization that provides the foundation for an exception from the requirements of 28 U.S.C. §§ 516 and 519.
The plaintiff further notes that Section 12(i) was added to the Exchange Act by the Securities Acts Amendments of 1964, 78 Stat. 565, Pub.L. No. 88-467, 88th Cong., 2d. Sess. (1964). The purpose of that amendment was intended to provide additional protection to investors by transferring to the Comptroller the powers vested in the Securities and Exchange Commission (SEC). See, House Report, 1964 U.S. Code Cong. & Ad.News at 3013, 3021. Indeed, at the time that Section 12(i) was added to the Exchange Act, the SEC submitted a memorandum to Congress which stated that "the Federal banking agencies ... would have the power ... to investigate, institute suits to enjoin, and forward evidence to the Attorney General for criminal prosecution ..." Investor Protection, Part 2, Hearings before a Subcommittee of the House Interstate and Foreign Commerce Committee, 88th Cong., 1st and 2d Sess. 1365 (1964). In addition, the plaintiffs have provided the Court with a letter from the Attorney General's office which states that the Department of Justice agrees with the Comptroller's conclusion that the Comptroller "may appear in the United States courts by its own counsel to carry out its functions under the" Exchange Act. (Letter from John M Harmon, Assistant Attorney General, to John G. Heimann, Comptroller of the Currency, filed with the Court on September 27, 1985.)
The cases cited by the defendant in support of his motion do not withstand close scrutiny. As to Federal Trade Commission v. Guignon, 390 F.2d 323 (8th Cir. 1968), the plaintiff notes that the court in that case concluded that the FTC was given no statutory authority to use its own counsel to enforce its own subpoenas. That decision was based on the clear language of the Federal Trade Commission Act, the legislative history and past judicial precedents including a Supreme Court decision refuting the FTC's assertion of authority. 390 F.2d at 325-30. Similarly, the decision in Interstate Commerce Commission v. Southern Railway Company, 543 F.2d 534 (5th Cir.1976) was based on specific statutory language in 28 U.S.C. §§ 2321-2323 that expressly conferred litigation authority for the ICC on the Attorney General. Lastly, as to In re Ocean Shipping Antitrust Litigation, 500 F.Supp. 1235 (S.D.N. Y.1980), the plaintiff's note that the agency involved had not sought an exception from the Attorney General's litigation authority, but rather sought to intervene.
In contrast to these cases the explicit statutory authority found in Section 12(i) to "institute suits to enjoin", and the Department *441 of Justice's support for the interpretation of Section 12(i) as conferring independent litigating authority, supports plaintiff's position. In Guignon and Ocean Shipping, the Attorney General actively opposed the agency efforts to assert independent litigation authority. Guignon, supra, 390 F.2d at 329-30; Ocean Shipping, supra, 500 F.Supp. at 1238. As noted above, the Attorney General has actively concurred in the exercise of independent litigation authority by the Comptroller.
Finally, there are three other instances in the past year in which the Comptroller relied on his authority to prosecute violations of the federal securities law. In all three instances the Attorney General concurred in the Comptrollers actions.[1] The Comptroller and the SEC instituted suit against this defendant in another matter, Securities and Exchange Commission and Comptroller of the Currency v. National Bank of Georgia, Calhoun First National Bank and T. Bertram Lance, Civil Action No. 78-752A (N.D.Ga.1978), without any objection by the defendant to the Comptroller's independent litigation authority.
Based on the foregoing the Court finds that the Comptroller is within his authority to independently enforce the provisions of the Exchange Act enumerated in Section 12(i).
FAILURE TO STATE A CLAIM
The defendant's second motion to dismiss argues that Count II of the Comptroller's complaint fails to state a claim upon which relief can be granted. That count alleges violations by the defendant of Exchange Act Section 13(a) for the failure to disclose in required Bank annual reports, filed with the Comptroller between 1982 and the present, certain matters laid out in the complaint. The defendant argues that, because the complaint does not allege that the defendant personally assisted in the preparation, dissemination or filing of the annual reports, and because the complaint does not allege that the annual reports failed to contain all information required by the Comptroller, the complaint is defective on its face.
Under a Fed.R.Civ.P. 12(b) motion to dismiss a complaint, the Court must construe the complaint in the light most favorable to the plaintiff, and factual allegations are assumed to be true. A complaint shall not be dismissed for failure to state a claim unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." McLain v. Real Estate Board of New Orleans, Inc., 444 U.S. 232, 246, 100 S.Ct. 502, 511, 62 L.Ed.2d 441 (1980), quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).
A violation of Section 13(a) for the filing of a false and misleading periodic report does not require personal participation. A corporate officer need only be found to have induced the false and misleading filing. See, Securities and Exchange Commission v. Savoy Industries, Inc., [1981-1982] Fed.Sec.L.Rep. (CCH) ¶ 98,295 (D.C.Cir.1981); Securities and Exchange Commission v. Falstaff Brewing Corp., 629 F.2d 62 (D.C.Cir.1980). An officer or director of a public corporation can be held liable for false securities law filings of the corporation if he controls the corporation at the time those documents were filed. Securities & Exchange Commission v. Savoy Industries, Inc., supra, ¶ 98,295 at 91,864-66. Furthermore, under Securities and Exchange Commission v. Falstaff Brewing Corp., supra, a corporate officer or director can be found to have aided and abetted a public issuer's violation of the Exchange Act if a violation occurs, the officer or director is aware of the violation and the individual knowingly and substantially participates in the act. 629 F.2d at 72-73. The complaint alleges *442 that the defendant exercised a controlling influence over the operation of the bank. It also alleges that the violations arose out of transactions that personally benefited the defendant and which he personally directed or was aware of. These allegations are sufficient to uphold the claim against the defendant from an attack of facial invalidity.
Defendant also argues that the complaint fails because it does not allege that the annual reports filed by the bank failed to contain all the information required by the OCC regulations. However, the activities of the defendant, as alleged, would certainly comprise information that should have been, if true, disclosed to the bank's shareholders. See, Securities and Exchange Commission v. Koenig, 469 F.2d 198, 200 (2d Cir.1972). The defendant alleges that such information is not required to be disclosed in the reports. However, the Court finds that the disclosures asked for in the Comptrollers form allows for any additional, material information that would make the statements not misleading. See, 12 CFR § 11.4(i). As such, an allegation that additional information should have been supplied does not fail on its face. See, TSC Industries v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976).
Based on the standard for a dismissal for a failure to state a claim upon which relief can be granted, the defendant's motion is insufficient as a matter of law and will be denied.
MOTION TO STAY BASED ON PARALLEL PROCEEDINGS
The defendant has moved the Court to stay further proceedings in this matter pending the outcome of possible criminal proceedings against him in a pending criminal investigation. The defendant cites to SEC v. Dresser Industries, 628 F.2d 1368 (D.C.Cir.1980) for the proposition that "If delay of the noncriminal proceeding would not seriously injure the public interest, a court may be justified in deferring it." 628 F.2d at 1376. The defendant asserts that he would suffer an extraordinary and unfair hardship without a stay. The defendant argues that his possible exposure "of the basis of [his] defense to the prosecution in advance of criminal trial" justifies a stay. Dresser, supra, at 1376. The defendant further asserts that because of the Comptroller's bad faith, and because his right to effective assistance of counsel is jeopardized by having to defend two actions, a stay is justified.
The Supreme court has held that parallel civil and criminal proceedings can be brought "simultaneously or successively. The order of their bringing must depend upon the government; ..." Standard Sanitary Mfg. v. United States, 226 U.S. 20, 52, 33 S.Ct. 9, 16, 57 L.Ed. 107 (1912). This Court cannot agree with defendant's assertion that under SEC v. Dresser, and his claim of possible prejudice, he is entitled to a stay. The choice between testifying, or invoking the Fifth Amendment, may be difficult, but it does not create a basis for a stay. See Gellis v. Casey, 338 F.Supp. 651, 653 (S.D.N.Y.1972). As noted in Dresser, the possibility of a criminal proceeding cannot justify a stay. Dresser, supra, 628 F.2d at 1376.
The plaintiff's have shown that there is significant public interest in not granting the stay. Even where, as here, the proceedings against the bank have been dropped, the government can show significant public interest in not being forced to choose:
either to forego recommendation of criminal prosecution once it seeks civil relief, or to defer civil proceedings pending the ultimate outcome of a criminal trial.
United States v. Kordel, 397 U.S. 1, 11, 90 S.Ct. 763, 769, 25 L.Ed.2d 1 (1970). The very case the defendant relies upon for his support moves this case to deny his motion. The Dresser court, in permitting simultaneous SEC and Grand Jury investigations, wrote:
... we should not block parallel investigations by these agencies in the absence of "special circumstances" in which the nature of the proceedings demonstrably prejudices substantial rights of the investigated party or of the government.
*443 Dresser, supra, 628 F.2d at 1377. No such significant showing of prejudice has been made by the defendant to justify a stay.
Defendant also claims that plaintiff's bad faith during the course of the administrative investigation of his case justifies a stay until criminal proceedings are completed. However, the allegations of bad faith in settlement negotiations and elements of the administrative investigation are unsupported by the proffered evidence. As has been stated elsewhere:
Unsupported allegations of bad faith and improper purpose are often made against regulatory agencies to hinder administrative investigations.
United States v. Juren, 687 F.2d 493, 494 (T.E.C.A.1982), cert. denied, 460 U.S. 1051, 103 S.Ct. 1497, 75 L.Ed.2d 929 (1983). Additionally, the Court finds the defendant's claim of selective prosecution without merit. There has been no prima facie showing that the defendant was singled out for prosecution while others, similarly situated who have committed the same acts, were not. Nor, had this been shown, has the defendant demonstrated that the prosecution was the result of constitutionally invidious motives such as racial or religious discrimination. See, United States v. Johnson, 577 F.2d 1304, 1308 (5th Cir. 1978); United States v. Jennings, 724 F.2d 436, 445 (5th Cir.), cert. denied, 467 U.S. 1227, 104 S.Ct. 2682, 81 L.Ed.2d 877 (1984); United States v. Lichenstein, 610 F.2d 1272, 1281 (5th Cir.), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 856 (1980).
For the foregoing reasons the defendant's motion for a stay is hereby denied.
MOTIONS TO COMPEL AND TO SEAL
Defendant filed a Motion to Seal on November 27, 1985. The motion seeks permissions to file under seal a motion to compel discovery. The basis for the request is that the motion to compel contains excerpts from confidential ex parte depositions taken as a part of the Comptroller's investigation. The Comptroller concurs with the motion to seal, noting that under 12 CFR § 19.43 information or documents obtained by the OCC during the course of a formal investigation shall remain confidential. However, the Comptrollers opposes the motion to compel.
Although the motion to seal states that the defendant "will file his motion to compel under seal simultaneously with the filing of this motion," no such motion to compel is found in the Court's file. The Court finds it appropriate to grant the motion to seal, but not merely because it is unopposed. It is appropriate also because here the sealing of confidential materials is "necessitated by a compelling governmental interest" as evidenced by the regulations maintaining confidentiality of the documents involved, and it is "narrowly tailored to that interest." See, Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-607, 102 S.Ct. 2613, 2619-2620, 73 L.Ed.2d 248 (1982); Wilson v. American Motors Corp., 759 F.2d 1568 (11th Cir. 1985). Thus the motion to seal the motion to compel is granted. The motion to compel is itself stayed pending the filing of that motion with this Court.
ACCORDINGLY, the defendant's motions to dismiss for lack of subject matter jurisdiction and failure to state a claim are DENIED. Defendant's motion for a stay is DENIED. Defendant's motion to seal is GRANTED and the motion to compel is STAYED.
NOTES
[1] See, Selby, Acting Comptroller of the Currency v. Huron National Bank, Civil Action No. 85-2186 (D.D.C. August 23, 1985); Conover, Comptroller of the Currency v. William Glenn, et al., Civil Action No. 85-1208 (D.D.C. April 16, 1985); and Conover, Comptroller of the Currency v. Commonwealth National Bank, Civil Action No. 85-0855 (D.D.C. March 19, 1985). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315843/ | 694 S.E.2d 129 (2010)
MAIRS
v.
WHOLE FOODS MARKET GROUP, INC.
No. A09A2157.
Court of Appeals of Georgia.
March 26, 2010.
Reconsideration Denied April 12, 2010.
*130 Guy E. Davis Jr., Atlanta, for appellant.
Swift, Currie, McGhee & Hiers, Terry O. Brantley, Alicia A. Timm, for appellee.
BARNES, Judge.
Martha Mairs appeals the grant of summary judgment to Whole Foods Market Group, Inc. in her premises liability case arising from her fall in a Whole Foods restroom. Mairs contends the trial court erred by finding that a jury would not find that she exercised reasonable care for her own safety, erred by ruling that the water on the floor was open and obvious, and erred by finding that Mairs failed to exercise ordinary care for her own safety because she had previously walked through the water. We agree and reverse.
The standards applicable to motions for summary judgment are announced in Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). In deciding a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga.App. 594, 595-596, 370 S.E.2d 843 (1988). When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence. Desai v. Silver Dollar City, 229 Ga.App. 160, 163(1), 493 S.E.2d 540 (1997).
Premises liability lies at the intersection of tort law and property law. To recover on a theory of premises liability, a plaintiff must show injury caused by a hazard on an owner or occupier of land's premises or approaches that the owner or occupier should have removed in the exercise of ordinary care for the safety of the invited public. [See OCGA § 51-3-1 ("Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon (the) premises for any lawful purpose, he (or she) is liable in damages to such persons for injuries caused by his (or her) failure to exercise ordinary care in keeping the premises and approaches safe.").] When a premises liability cause of action is based on a "trip and fall" or "slip and fall" claimand the lion's share of premises liability cases are [Charles R. Adams, Ga. Law of Torts § 4-6(a)]we have refined this general test down to two specific elements. The plaintiff must plead and prove that: (1) the defendant had actual or constructive knowledge of the hazard; and (2) the plaintiff, despite exercising ordinary care for his or her own personal safety, lacked knowledge of the hazard due to the defendant's actions or to conditions under the defendant's control. [Alterman Foods v. Ligon, 246 Ga. 620, 272 S.E.2d 327 (1980).]
(Footnotes omitted.) American Multi-Cinema v. Brown, 285 Ga. 442, 444-445(2), 679 S.E.2d 25 (2009). Because the allegation in this case is that the floor was wet because Whole Foods mopped it, Whole Foods is presumed to have knowledge of the water on *131 the floor. Alterman Foods v. Ligon, 246 Ga. at 624, 272 S.E.2d 327. "In this type of case the plaintiff may make out a cause of action by showing an act or omission on the part of the defendant which was the proximate cause of his injury and which could not have been avoided by the plaintiff through the exercise of ordinary care." Id.
Additionally,
to survive a motion for summary judgment, a plaintiff must come forward with evidence that, viewed in the most favorable light, would enable a rational trier of fact to find that the defendant had actual or constructive knowledge of the hazard. At that point, the burden of production shifts to the defendant to produce evidence that the plaintiff's injury was caused by his or her own voluntary negligence (intentional disregard of a known risk) or causal negligence (failure to exercise ordinary care for one's personal safety). If the defendant succeeds in doing so, the burden of production shifts back to the plaintiff to come forward with evidence that creates a genuine dispute of fact on the question of voluntary or causal negligence by the plaintiff or tends to show that any such negligence resulted from the defendant's own actions or conditions under the defendant's control. [Robinson v. Kroger Co., 268 Ga. 735, 746-749, 493 S.E.2d 403 (1997).]
(Footnotes omitted.) American Multi-Cinema v. Brown, 285 Ga. at 444-445, 679 S.E.2d 25.
Giving Mairs the benefit of all reasonable doubt and construing the evidence and all inferences and conclusions therefrom in her favor, as the party opposing the motion, the record shows that Mairs fell in a restroom after using the toilet. Before she fell, she did not notice the floor was wet, but after she fell, she noticed that her clothes were wet where they had touched the floor. As Mairs lay on the floor waiting for the EMTs to arrive, an employee of Whole Foods waited with her, and when the EMTs arrived, Mairs heard this person introduce herself to them as an assistant manager of Whole Foods and heard her say that they had just mopped the floor and someone must have put the wet floor sign back under the sink. Mairs did not see a wet floor sign when she entered the restroom.
Mairs's friend, who was shopping with her, entered the restroom after she learned that Mairs had fallen. Whole Foods employees were with Mairs in the stall. She did not notice water on the floor until Mairs told her what had happened, but then she could see that the floor was wet around the toilet. After it was called to her attention, it was easy to see that the floor was wet. The water was not in puddles; it looked like someone had mopped the floor. She later saw a wet floor sign folded under a sink. Before she entered the restroom, she saw a wringer mop and a bucket about four feet from the entrance to the restroom, but they were gone when she came out of the restroom.
A Whole Foods assistant manager testified that, after she learned of Mairs's fall, she entered the restroom and a wet floor sign was in the restroom about two feet in front of the sink. She did not see a mop or bucket outside the restroom. She testified that the floor was not wet. She saw a few drops of wetness in the stall, but no other wet places in the restroom. Another Whole Foods employee testified that she had to crawl under the stall door to unlock it, and she would not have done so if the floor was wet. She saw the wet floor sign over by the sink.
Mairs filed suit alleging that she was an invitee when she slipped and fell on a wet floor, that no wet floor signs were in the vicinity of the fall, that she suffered injuries to her knee and hand as a result of the fall, and that Whole Foods's breach of its duty of ordinary care caused her injuries. After answering and conducting discovery, Whole Foods moved for summary judgment. The motion contended that Mairs provided no evidence about what caused her to fall, Mairs and Whole Foods had equal knowledge of the water on the floor, and Mairs failed to exercise reasonable care for her own safety by failing to appreciate the wetness of the floor in the stall. The trial court granted the motion.
1. Mairs first contends the trial court erred by finding, as a matter of law, that no genuine issue of material fact existed *132 from which a jury could conclude that Mairs exercised reasonable care for her own safety while she was in the stall. We agree. Other than in the most unusual cases this is not an issue which a court can decide. Our Supreme Court reiterated again last year that
the "routine" issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff's lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed. [Robinson, 268 Ga. at 748, 493 S.E.2d 403.]
To put it in more concrete terms, this means that issues such as how closely a particular retailer should monitor its premises and approaches, what retailers should know about the property's condition at any given time, how vigilant patrons must be for their own safety in various settings, and where customers should be held responsible for looking or not looking are all questions that, in general, must be answered by juries as a matter of fact rather than by judges as a matter of law.
(Punctuation and footnotes omitted.) American Multi-Cinema v. Brown, 285 Ga. at 445, 679 S.E.2d 25. Here, Mairs testified that she slipped on water on the floor that she could only detect after she fell. Her testimony was supported by that of the person who was with her and also to some extent by the Whole Foods assistant manager. In these circumstances, the case presents the typical slip and fall case issues that must be determined by a jury. Accordingly, the trial court erred by granting summary judgment to Whole Foods.
2. Mairs further contends the trial court erred by finding that the water on the floor was open and obvious. Given the conflicting testimony discussed above on whether the water could be seen, this was a jury question. On motions for summary judgment, the court cannot resolve the facts or reconcile the issues. Fletcher v. Amax, Inc., 160 Ga.App. 692, 695, 288 S.E.2d 49 (1981).
3. Mairs also contends the trial court erred by ruling that she failed to exercise ordinary care for her own safety because she had previously walked through the water on the floor. Considering the evidence in this case, this too is an issue the jury must decide. American Multi-Cinema v. Brown, 285 Ga. at 445, 679 S.E.2d 25.
Judgment reversed.
MILLER, C.J., and ANDREWS, P.J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315848/ | 387 S.C. 551 (2010)
694 S.E.2d 6
In the Matter of William Grayson ERVIN, Respondent.
No. 26816.
Supreme Court of South Carolina.
Heard April 6, 2010.
Decided May 11, 2010.
Order Reinstating Attorney to Practice of Law May 25, 2010.
*552 Lesley M. Coggiola, Disciplinary Counsel, and C. Tex Davis, Jr., Senior Assistant Disciplinary Counsel, both of Columbia, for Office of Disciplinary Counsel.
Thomas C. Brittain, of Conway, for respondent.
PER CURIAM.
In this disciplinary matter, the Office of Disciplinary Counsel (ODC) brought formal charges against Respondent William Grayson Ervin following his arrest for pointing and presenting a firearm. The Panel recommended Respondent be suspended for two years retroactively, pay the costs of the proceeding, and attend counseling for two years. We believe a lesser *553 sanction is warranted and suspend Respondent for six months retroactive to the date of his interim suspension.
I.
Respondent graduated from college in 2004 and then worked as a police officer in Horry County for a year and a half. Following his graduation from law school in 2007, Respondent began working as an assistant solicitor with the Ninth Circuit Solicitor's Office.
This case arises from a road rage incident. On February 15, 2008, Respondent was arrested and charged with pointing and presenting a firearm after he allegedly pointed his gun at a driver ("female driver") in another vehicle while driving. Respondent was immediately fired from the solicitor's office and placed on interim suspension.
The female driver informed law enforcement that she was alone in her vehicle when Respondent, without provocation, displayed a firearm. While Respondent exercised extremely poor judgment warranting a sanction, the facts are not as reprehensible as reported by the female driver.
The record reveals the following facts. Respondent was driving from Charleston to Myrtle Beach on February 15, 2008. As he was merging onto the Ravenel Bridge, he drove behind a vehicle traveling around twenty miles-per-hour. Respondent testified the vehicle was "zigzagging" in the lane, so he attempted to get around it. Respondent admitted he was following the vehicle too closely. As he tried to pass the vehicle, Respondent testified the female driver and her male passenger extended their middle fingers and shouted at him. Respondent testified he tried to pass them a couple of times, but they cut him off each time. When Respondent was eventually able to get in front of the car, he tapped his brakes, apparently in an attempt to frustrate the driver.
The female driver then pursued Respondent and passed him. As the couple's vehicle passed Respondent's vehicle, the male passenger held up a gun, put his middle finger up, and yelled at him. Respondent passed them, took his gun from the center console,[1] and said: "What the hell are you doing, I *554 have one too." This concluded the road rage incident, and the female driver exited the highway. The female driver called 911 claiming to be a victim of road rage. The female driver provided information concerning Respondent's vehicle. Shortly thereafter, the police stopped Respondent's vehicle and arrested him.
Respondent and the female driver disputed the events leading up to the incident. According to the incident report, the female driver claimed she was by herself in the vehicle, and as she was driving on the highway, Respondent's vehicle came up behind her at a high rate of speed. The female driver stated that as he passed her, Respondent was yelling and pointing a gun at her. The female driver denied any road rage conduct on her part, as well as the presence of a male passenger in her vehicle.
After investigating the matter, the Attorney General's Office offered Respondent the opportunity to enter into pre-trial intervention (PTI) in exchange for the dismissal of the charge.[2] After Respondent successfully completed PTI, the charge was nol prossed and expunged from his record.
For reasons not known, law enforcement never investigated Respondent's claim that a male passenger had first pointed a firearm at Respondent and threatened him. Law enforcement simply accepted the female driver's claim that she was alone. The truth came to light at the Panel Hearing. The female driver's call to 911 was recorded. The 911 recording proves the presence of a male passenger in the vehicle. The voice of the male passenger is heard relaying identifying information about Respondent's vehicle, such as his license plate number. Additionally, Respondent submitted affidavits from the female driver's landlord stating she saw the driver and her husband the male passengerafter the incident and the driver told her "they" had a problem with someone on the bridge. Respondent also submitted an affidavit from the property manager of *555 the female driver's residence. He asserted that the female driver told him about the incident and that both she and her husband were in the vehicle. A day later, she told the property manager the person involved in the incident was a solicitor and "we (she and [her husband]) are going to sue him for `a lot of money.'"
The true facts concerning the road rage incident in no manner exonerate Respondent, yet the facts mitigate the degree of his misconduct. Respondent exercised extremely poor judgment in participating in this road rage incident. Respondent could have removed himself from the situation after the initial contact, but he chose to further engage the couple in the other vehicle. Respondent was then confronted and threatened by the male passenger with a firearm. The female driver lied to law enforcement, and when law enforcement merely accepted her claims without any scrutiny, she saw an opportunity to leverage Respondent in a civil lawsuit. If law enforcement had simply listened to the 911 transmission, the falsity of the centerpiece of the female driver's claim would have been revealed.
The Panel questioned Respondent regarding his counseling sessions. Respondent admitted he perhaps had unresolved issues as a result of a prior shooting incident when he was a police officer. Respondent was candid with the Panel and took full responsibility for his actions.
In their report, the Panel adopted Respondent's version of events as a matter of fact, specifically finding that the driver lied when she told police she was alone in the vehicle. We concur in this assessment. The Panel found Respondent violated Rules 8.4(a) and 8.4(b), Rules of Professional Conduct, Rule 407, SCACR. As mitigating factors, the Panel found Respondent made full disclosure to ODC, he demonstrated genuine remorse for his conduct, and he had no disciplinary history. Respondent has been on interim suspension since his arrest. The Panel recommended Respondent be suspended for two years retroactively, pay the costs of the proceeding, and attend counseling for twenty-four months.
II.
This Court has the sole authority to discipline attorneys and to decide the appropriate sanction after a thorough *556 review of the record. In re Thompson, 343 S.C. 1, 10-11, 539 S.E.2d 396, 401 (2000). This Court "may accept, reject, or modify in whole or in part the findings, conclusions and recommendations of the [Panel]." Rule 27(e)(2), Rules for Lawyer Disciplinary Enforcement, Rule 413, SCACR.
III.
We adopt the Panel's factual findings regarding the incident and agree that, through his actions on February 15, 2008, Respondent violated Rules 8.4(a) and 8.4(b) of the Rules on Professional Conduct (misconduct to violate the Rules of Professional conduct and to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects). Respondent exercised extremely poor judgment in allowing an avoidable situation to escalate into a dangerous incident. However, we believe Respondent realizes the serious nature of the incident and has expressed genuine remorse for his conduct. We find a six-month suspension is warranted. See In re Jordan, 385 S.C. 614, 686 S.E.2d 682 (2009) (imposing a nine-month suspension where attorney was charged with multiple drug offenses, including possession with intent to distribute, but successfully completed the PTI program); In re Sorenson, 380 S.C. 119, 669 S.E.2d 91 (2008) (imposing a public reprimand where attorney completed the PTI program after being charged with unlawful gaming and betting on four separate occasions); In re Hart, 366 S.C. 557, 623 S.E.2d 650 (2005) (imposing a public reprimand where attorney was arrested for criminal domestic violence, but completed the PTI program).
IV.
We suspend Respondent from the practice of law for six months, retroactive from the date of his interim suspension on February 21, 2008. Additionally, per the Panel's report, we order Respondent attend counseling at least once a month for twenty-four months, submit quarterly reports from his counselor to ODC, and pay the costs of these proceedings.
DEFINITE SUSPENSION.
*557 ORDER
Respondent was suspended on May 11, 2010, for a period of six (6) months, retroactive to February 21, 2008. He has now filed an affidavit requesting reinstatement pursuant to Rule 32, of the Rules for Lawyer Disciplinary Enforcement contained in Rule 413, SCACR.
The request is granted and he is hereby reinstated to the practice of law in this state.
/s/JEAN H. TOAL, Chief Justice.
NOTES
[1] Respondent lawfully owned the gun and was lawfully carrying the gun in his vehicle.
[2] Since Respondent worked for the solicitor's office, the Attorney General's Office (AGO) handled the prosecution. At the hearing, counsel for Respondent stated Respondent did not know whether the AGO planned to present the case to the grand jury for indictment. However, Respondent was under the impression that the process would take a long time due to the AGO's workload, and for this reason, he decided to take the offer of PTI in exchange for the charges being dropped. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315852/ | 694 S.E.2d 661 (2010)
JOHNSON
v.
ROBERTS.
No. S10A0063.
Supreme Court of Georgia.
April 19, 2010.
*662 Martin Snow, Stuart E. Walker, Sarah L. Gerwig-Moore, Macon, for appellant.
Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.
HUNSTEIN, Chief Justice.
We granted Terry Eric Johnson a certificate of probable cause to appeal the denial of his petition for writ of habeas corpus to consider whether Johnson was entitled to habeas relief on the ground that his guilty plea attorney was ineffective for affirmatively misinforming him regarding his parole eligibility. For the reasons that follow, we conclude the habeas court erred by holding that Johnson was not affirmatively misinformed regarding his parole eligibility but we vacate and remand the case for the habeas court to determine whether, but for counsel's deficiency, there is a reasonable probability that Johnson would have proceeded to trial rather than pled guilty.
To prove ineffective assistance of counsel in connection with a guilty plea, a defendant must prove that his counsel was deficient, and that absent the deficiency, there is a reasonable probability that he would have proceeded to trial rather than pleading guilty.... The proper standard of review [of the habeas court's ruling] requires that we accept the habeas court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.
(Citations and punctuation omitted.) Upton v. Johnson, 282 Ga. 600, 601-602, 652 S.E.2d 516 (2007). The record in this case establishes that, in November 1996, Johnson entered a negotiated plea of guilty to crimes he committed in February 1996, namely, armed robbery and possession of a firearm by a convicted felon, in exchange for a sentence of "20 years to serve" on the armed robbery charge.[1] The transcript of the guilty plea hearing reflects that Johnson specifically asked whether he would "do the straight twenty [years], or do just ten off the twenty." In response, Johnson's counsel stated that he had explained to Johnson that an armed robbery charge "carries a mandatory minimum of ten years, and after that, as far as I know, it's parol[ ]able.... I also told him it was not a fixed twenty years. You don't have to stay twenty years. That's up to ... the State Board of Pardons and Paroles." Although defense counsel was correct regarding the ten-year mandatory minimum sentence for armed robbery, see OCGA § 16-8-41(b), counsel's other information was unquestionably incorrect because armed robbery is one of the serious violent felonies, OCGA § 17-10-6.1(a)(2), and subsection (c)(4) of that statute mandates that the full sentence imposed for a first conviction of armed robbery be served without reduction by parole or any other sentence-reducing measures.[2]
*663 The habeas court correctly recognized that defense counsel gave wrong advice to appellant regarding parole. However, citing Rios v. State, 281 Ga. 181(2), 637 S.E.2d 20 (2006), the habeas court found that Johnson failed to prove that he was prejudiced by counsel's deficient performance based on its determination that the trial court in statements to Johnson had corrected counsel's wrong advice. This finding by the habeas court was clearly erroneous. The transcript of the guilty plea hearing reflects that the trial court informed Johnson that the Board of Pardons and Parole "determines how long you [serve]" and that "nobody's here telling you how long it's going to be, `cause nobody in this room knows." However, as established by OCGA § 17-10-6.1(c)(4), the State Board of Pardons and Parole is expressly denied the authority to reduce the length of a term-of-years sentence imposed for an armed robbery conviction and, pursuant to that same unambiguous statutory language, both the trial court and counsel should have known that Johnson was categorically ineligible for any parole and would have to serve the entire 20-year sentence. The trial court's information thus did not serve to correct the erroneous advice given by defense counsel but instead misleadingly reinforced that erroneous advice by indicating to Johnson that uncertainty existed as to the amount of time he would be required to serve.
We therefore hold that Johnson carried his burden of establishing that his defense counsel performed deficiently by affirmatively misleading Johnson regarding his parole eligibility. After applying the relevant legal principles to the facts in this case, we further hold that the habeas court clearly erred when it found Johnson was not prejudiced by defense counsel's deficient performance because that erroneous finding was based on the habeas court's mistaken conclusion that the trial court had corrected defense counsel's error.
The record reveals that, after making this mistaken conclusion about the trial court's so-called correction, the habeas court in its order included the statement that Johnson "has failed to satisfy the prejudice prong ... [by] fail[ing] to demonstrate that there is a reasonable probability that, but for counsel's erroneous advi[c]e about parole, he would not have pled guilty and would have insisted on going to trial." This is the relevant inquiry for prejudice in cases such as this one involving the effect of counsel's misinformation regarding parole eligibility. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Davis v. Murrell, 279 Ga. 584, 585, 619 S.E.2d 662 (2005). However, none of the written findings of fact in the habeas court's order address this issue notwithstanding Johnson's statements at the habeas hearing indicating what he would have done had he been informed correctly about his parole eligibility.[3] Moreover, the habeas court's conclusions of law regarding prejudice are based solely upon Rios v. State, supra, 281 Ga. at 182(2), 637 S.E.2d 20, which addresses the lack of prejudice that occurs when counsel's misinformation is corrected by a trial court and thus did not reach the issue of the prejudicial effect of the misinformation. Accordingly, it appears both from the record of the habeas hearing[4] and from the habeas court's order that its prejudice prong analysis was focused upon the so-called corrective statements made by the trial court at Johnson's guilty plea hearing rather than upon the question whether Johnson would have chosen to go to trial had he been properly informed that he was categorically ineligible for parole. We decline Johnson's request to resolve this question de novo *664 on a cold record. Instead, we vacate and remand this case to the habeas court with instruction to enter a new order consistent with this opinion and containing the requisite findings of fact and conclusions of law. See OCGA § 9-14-49; Thomas v. State, 284 Ga. 327(2), 667 S.E.2d 375 (2008).
Judgment vacated and case remanded with direction.
All the Justices concur.
NOTES
[1] A five-year concurrent sentence was imposed on the firearm possession charge. Other counts, including a recidivist count for a prior burglary conviction, were dismissed.
[2] No question exists that OCGA § 17-10-6.1 applied to Johnson. See generally Campbell v. State, 268 Ga. 44(4), 485 S.E.2d 185 (1997) (OCGA § 17-10-6.1 of the Sentence Reform Act of 1994 became effective January 1, 1995, after ratification by the voters of Georgia at the 1994 November general election of an amendment to Art. IV, Sec. II, Par. II of the Georgia Constitution of 1983).
[3] For example, before Johnson was sworn, he argued to the habeas court that "[i]f they wanted me to bring the whole 20 years, sir, I could've went [sic] to jury trial and maybe fight this case," and, after being sworn, testified, inter alia, that he was "tricked" and "misled" by counsel who "made me take" the guilty plea because he failed to tell Johnson that he would have to serve a "mandatory 20."
[4] This is also reflected in the transcript of the habeas hearing, where Johnson was repeatedly directed by questions to explain why the trial court's various statements did not "correct" that misinformation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315857/ | 694 S.E.2d 206 (2010)
John Allen TAYLOR, Plaintiff-appellee,
v.
TOWN OF GARNER and N.C. League of Municipalities, Defendant-appellants, and
N.C. State University and Key Risk Management Services, Defendant-appellees.
No. COA09-1522.
Court of Appeals of North Carolina.
June 1, 2010.
*207 Patterson Harkavy LLP, by Valerie A. Johnson and Narendra K. Ghosh, Chapel Hill, for plaintiff-appellee.
Teague Campbell Dennis & Gorham, LLP, by Dayle A. Flammia and Brad G. Inman, Raleigh, for defendant-appellants Town of Garner and N.C. League of Municipalities.
Attorney General Roy Copper, by Assistant Attorney General Marc X. Sneed, for defendant-appellee N.C. State University.
STEELMAN, Judge.
Where the Garner Police Department and the N.C. State Campus Police Department substantially complied with the requirements of the Agreement pursuant to N.C. Gen.Stat. § 160A-288 and it is undisputed that Officer Taylor sustained an injury arising out of and during the course of his employment on 27 October 2007, the Commission did not err by concluding that Town of Garner is responsible for payment of sums due to plaintiff pursuant to the provisions of Chapter 97 of the North Carolina General Statutes.
I. Factual and Procedural Background
The relevant facts of this case are not in dispute. John Allen Taylor (Officer Taylor) has been employed as a police officer by the Garner Police Department since 1988. In January 2007, Officer Taylor was involved in developing guidelines and training protocols for horses and officers, and subsequently established a volunteer mounted patrol unit for the Town of Garner.
In June 2007, the Garner Police Department and N.C. State Campus Police Department entered into a Mutual Assistance Agreement pursuant to N.C. Gen.Stat. § 160A-288 (Agreement). The Agreement provided that the Garner Police Department and N.C. State Campus Police Department would provide temporary assistance to each other in enforcing the laws of the state when requested. The Agreement further provided that while the officer is temporarily under the command of the requesting agency: (1) the officer shall have the same jurisdiction, powers, rights, and privileges as the requesting agency; and (2) for personnel and administrative purposes, the officer shall remain under the control of the assisting agency and shall be entitled to workers' compensation and other benefits to which he/she would be entitled if he/she was functioning within the normal course and scope of his/her duties with the assisting agency.
On 26 September 2007, Thomas Younce, Chief of the N.C. State Campus Police Department (Chief Younce) contacted Thomas Moss, Chief of the Garner Police Department (Chief Moss) by email and inquired into whether Officer Taylor would be available to work the 29 September 2007 football game at Carter-Finley Stadium on mounted patrol pursuant to the Agreement. Chief Moss approved the request. There was no further communication between Chief Younce and Chief Moss about Officer Taylor working future football games. Sergeant McIver, Officer Taylor's immediate supervisor, emailed Officer Taylor to inform him that the mounted patrol duty had been approved, and indicated that he would receive overtime pay and did not need to complete a secondary employment request form.
*208 On 29 September 2007, Officer Taylor reported to Carter-Finley stadium for work. Officer Taylor wore his Garner Police uniform and used equipment provided by the Garner Police Department. Officer Taylor completed tax forms at the request of N.C. State, and was paid $30.00 per hour for his 12-hour shift directly by the University. Chief Moss approved this payment method because Officer Taylor would make more money for the day's work. N.C. State would take out less taxes and no other deductions would have been required.
Following the first game, Officer Taylor was told by Sergeant McIver to submit a secondary employment request form because he was being paid directly by N.C. State. On 1 October 2007, Officer Taylor submitted this form for the remainder of N.C. State's home football schedule. On 4 October 2007, Sergeant McIver approved the form and, on 29 October 2007, Chief Moss also approved the form.
On 27 October 2007, Officer Taylor reported to Carter-Finley stadium to work the next scheduled football game on mounted patrol. At approximately 6:15 p.m., Officer Taylor and three other mounted officers decided to exercise their horses. Officer Taylor ran his horse in a field that was approximately 100 yards long and had a string of light poles. One pole had a guide-wire attached to it. Officer Taylor did not immediately see the guide-wire. The horse ran under the guide-wire and, upon seeing the wire, Officer Taylor put up his hand to protect his head. The wire caught his left hand, and he was knocked from the horse to the ground. Officer Taylor's left thumb was severed from his hand. He was taken to Rex Hospital and had emergency surgery to reattach his thumb.
The reattachment failed and on 3 December 2007, Officer Taylor's left thumb was amputated at the joint closest to his hand, resulting in the complete loss of his left thumb. Skin was grafted from the inside of his left forearm onto the top of the left thumb. After 7 months, Officer Taylor was able to qualify for his firearm certification and returned to his duties as a patrol officer on 27 May 2008.
All parties have stipulated that Officer Taylor sustained an injury arising out of and during the course and scope of his employment on 27 October 2007. Both the Town of Garner and N.C. State denied Officer Taylor's claim for workers' compensation benefits on the basis that there was no employer-employee relationship at the time of the accident. None of Officer Taylor's medical expenses have been paid. The main controversy between the parties is whether Officer Taylor was working at N.C. State on 27 October 2007 pursuant to the Agreement. On 22 July 2009, the Commission entered an Opinion and Award and concluded that Officer Taylor was working on 27 October 2007 pursuant to the Agreement and that the Town of Garner was liable for his compensable injuries pursuant to N.C. Gen.Stat. § 160A-288. Officer Taylor's claims against N.C. State were dismissed with prejudice. Town of Garner and its insurance carrier, N.C. League of Municipalities, appeal. Plaintiff cross-assigns error to the Commission's failure to find, as an alternative basis for its decision, that Town of Garner and N.C. State are both liable for plaintiff's workers' compensation benefits as joint employers.
II. Standard of Review
"Appellate review of an opinion and award from the Industrial Commission is generally limited to determining: `(1) whether the findings of fact are supported by competent evidence, and (2) whether the conclusions of law are justified by the findings of fact.'" Hassell v. Onslow Cty. Bd. of Educ., 362 N.C. 299, 305, 661 S.E.2d 709, 714 (2008) (quotation omitted). "[F]ailure to assign error to the Commission's findings of fact renders them binding on appellate review." Estate of Gainey v. Southern Flooring & Acoustical Co., 184 N.C.App. 497, 501, 646 S.E.2d 604, 607 (2007) (citation omitted). We review the Commission's conclusions of law de novo. McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004).
III. Mutual Assistance Agreement
Town of Garner argues that the Commission erred by concluding that Officer Taylor *209 was working on 27 October 2007 pursuant to the Agreement and that it is liable for his compensable injuries because the Town of Garner and N.C. State did not strictly comply with the requirements of N.C. Gen.Stat. § 160A-288. We disagree.
N.C. Gen.Stat. § 160A-288 provides statutory authority for police departments to enter into mutual assistance agreements:
In accordance with rules, policies, or guidelines officially adopted by the governing body of the city or county by which he is employed, and subject to any conditions or restrictions included therein, the head of any law-enforcement agency may temporarily provide assistance to another agency in enforcing the laws of North Carolina if so requested in writing by the head of the requesting agency. The assistance may comprise allowing officers of the agency to work temporarily with officers of the requesting agency (including in an undercover capacity) and lending equipment and supplies. While working with the requesting agency under the authority of this section, an officer shall have the same jurisdiction, powers, rights, privileges and immunities (including those relating to the defense of civil actions and payment of judgments) as the officers of the requesting agency in addition to those he normally possesses. While on duty with the requesting agency, he shall be subject to the lawful operational commands of his superior officers in the requesting agency, but he shall for personnel and administrative purposes, remain under the control of his own agency, including for purposes of pay. He shall furthermore be entitled to workers' compensation and the same benefits when acting pursuant to this section to the same extent as though he were functioning within the normal scope of his duties.
N.C. Gen.Stat. § 160A-288(a) (2007). On 21 June 2007, the Garner Police Department and the N.C. State Campus Police Department entered into a written agreement pursuant to this statute. The terms of the Agreement mirror the statutory language and outline the responsibilities of each party:
Pursuant to G.S. 160A-288, 160A-288.2 and 90-95.2, as amended, the undersigned do hereby covenant and agree to provide temporary assistance to each other in enforcing the laws of the State of North Carolina when requested in writing to do so and upon approval by the Chief of Police of Garner Police Department or the Chief of Police of NC State Campus Police Department.
....
The terms and conditions of this agreement shall be as follows:
1. As provided by G.S. 160A-288, 160A-288.2, and 90-95.2, either agency may request of the other the temporary lending of personnel, equipment, and supplies.
2. Such request shall be in writing and executed by the Chief of the Requesting Agency, or in his absence, by such other person as has been designated to make or grant such requests....
....
4. While on duty with the Requesting Agency, a law enforcement officer shall be subject to the lawful operational commands of the officer in charge of the division to which he is temporarily assigned and shall operate under his direct supervision....
....
8. For personnel and administrative purposes, the temporarily assigned officer shall remain under the control of the Assisting Agency and shall be entitled to Worker's Compensation and other benefits to which he/she would be entitled were he/she functioning within the normal course and scope of his/her duties with the Assisting Agency.
....
12. While on duty, with the Requesting Agency, the temporarily assigned officer of the Assisting Agency shall have the same jurisdiction, powers, rights, privileges, benefits and immunities as the officers of the Requesting Agency in addition to those which he/she normally possesses.
Legislative Intent
The enactment of N.C. Gen.Stat. § 160A-288 serves dual purposes. First, it allows a police officer to temporarily provide assistance to another law enforcement agency *210 and use his powers of arrest outside of his jurisdiction. A criminal defendant may challenge his arrest based upon the law enforcement agencies noncompliance with this statute and argue that the officer was not acting in the course of his official duties as a governmental officer at the time of the incident. See State v. Locklear, 136 N.C.App. 716, 721, 525 S.E.2d 813, 816-17 (2000). Officer Taylor's authority to use his powers of arrest outside of his jurisdiction is not the basis of this appeal. Second, the statute seeks to protect the officer's employment benefits, including his workers' compensation benefits. Our analysis focuses solely upon the later of these two purposes.
Town of Garner urges this Court to adopt a very narrow reading of N.C. Gen. Stat. § 160A-288 and hold that the technical written request/approval and pay requirements of N.C. Gen.Stat. § 160A-288 must be strictly complied with in order for the statute to be applicable for personnel and administrative purposes. We decline to do so.
The Commission's Findings of Fact
The Commission made the following findings of fact pertaining to the written request/approval and pay requirements of N.C. Gen.Stat. § 160A-288:
16. Chief Tom Younce of N.C. State University's Police Department contacted Chief Tom Moss of the Garner Police Department by email dated September 26, 2007. He inquired whether Officer Taylor would be allowed to work the September 29, 2007 football game at N.C. State's Carter Finley Stadium on mounted patrol. Chief Younce and Chief Moss, who have known each other for many years, corresponded and agreed that the work Officer Taylor performed would be pursuant to the mutual aid and assistance agreement.
17. Officer Taylor received an email from Sergeant McIver, his direct supervisor, indicating that the mounted patrol duty had been approved and congratulating him on a job well done in developing the unit. Sergeant McIver indicated that Officer Taylor would receive overtime pay and that he did not need to complete a secondary employment application for the work.
18. Officer Taylor worked the N.C. State game on September 29. He was given personnel paperwork to complete at N.C. State and was eventually paid $30.00 per hour for his 12-hour shift. He did not receive overtime from the Garner Police Department. Chief Moss approved the payment by N.C. State. He believed that the full payment of $30.00 per hour by N.C. State without payroll deductions from the town of Garner would result in increased payments to Officer Taylor. Chief Moss wanted to compensate Officer Taylor for the increased cost associated with the mounted unit, most of which were born by the mounted officers.
19. Officer Taylor's participation at the game on September 29 demonstrates his deployment was envisioned to permit use of law enforcement powers under the mutual aid agreement as, in addition to providing security at the gate, Officer Taylor responded to a service call involving an assault.
....
21. Although Officer Taylor knew that his work was pursuant to the mutual aid agreement and he had been informed that the Town of Garner would pay him overtime, he was asked to complete a secondary employment request form following the first game. He completed the request noting that he would be working the remainder of the home football games at N.C. State. The request was completed on October 1. Sergeant McIver approved the request form on October 4. Chief Moss wanted Officer Taylor to receive as much pay as possible for his work given the amount of money that Officer Taylor was expending for the mounted patrol. The form was not signed by Chief Moss until October 29.
22. It was the understanding of Chief Moss and Chief Younce that all of Officer Taylor's participation at the home football games would be pursuant to the mutual aid and assistance agreement. Chief Younce and Chief Moss had developed a relationship over many years of professional association. Both Chief Moss and Chief Younce understood that his email request *211 before the September 29 game constituted an adequate written request for officers to provide temporary assistance pursuant to the June 2007 mutual aid agreement. No further communication was necessary for future games. At no point did Chief Moss believe that the mutual aid agreement was not in effect, despite the existence of the secondary employment form.
23. If the mutual aid agreement had not been in effect, Officer Taylor would not have been able to work at the October 27 game. In order to use any law enforcement powers, Officer Taylor would have to be lent to N.C. State by the town of Garner Police Department because Carter Finley Stadium is outside of the jurisdiction of the town of Garner. Both Chief Moss and Chief Younce were aware of the necessity of the mutual aid and assistance agreement for Officer Taylor's work.
Town of Garner only assigns error to finding of fact 22. Therefore, findings of fact 16-21 and 23 are deemed to be supported by competent evidence and are binding on appeal. See Estate of Gainey, 184 N.C.App. at 501, 646 S.E.2d at 607 ("[F]ailure to assign error to the Commission's findings of fact renders them binding on appellate review."). Town of Garner does not argue that finding of fact 22 is not based upon competent evidence, but rather challenges the portion of that finding which states: "[n]o further communication was necessary for future games" and argues that this was inconsistent with the terms of the Agreement.
Clear Intent of the Parties
The Commission's unchallenged findings of fact establish that on 26 September 2007, Chief Younce inquired into whether Officer Taylor would be available to work the 29 September 2007 football game on mounted patrol. Chief Moss granted this request. Chief Moss and Chief Younce understood that Chief Younce's request constituted a written request for an officer to provide temporary assistance pursuant to the Agreement. As to football games after that date, both Chief Younce and Chief Moss had a clear understanding Officer Taylor was working pursuant to the Agreement. Chief Moss would not have allowed Officer Taylor to work mount patrol at N.C. State absent that Agreement. Officer Taylor also believed that he was working pursuant to the Agreement on 27 October. Officer Taylor completed a secondary employment request form noting that he would be working the remainder of the home football games at N.C. State. Sergeant McIver approved the request form on 4 October. The Commission's unchallenged findings of fact establish that all parties involved were aware of Officer Taylor's employment with N.C. State on 27 October 2007 and believed he was working pursuant to the Agreement.
The intent of the parties is further evidenced by the purpose of Officer Taylor's employment with N.C. State on that day. Unchallenged findings of fact 14 and 15 establish that: (1) mounted patrol officers were necessary at Carter-Finley Stadium during football games because up to 60,000 people can attend and approximately 40,000 people congregate in the parking lots abutting the stadium; and (2) that mounted patrol officers have an improved vantage point, can cover ground quickly, and control crowds effectively.
As the Commission correctly found, in order for Officer Taylor to work as a mounted patrol officer at N.C. State, he would have had to have been working pursuant to the Agreement to have any police powers outside of his jurisdiction. Otherwise, his presence would have served no purpose. The Commission's unchallenged findings of fact establish that the parties clearly intended for Officer Taylor to work the N.C. State football game pursuant to the Agreement.
Method of Payment
Town of Garner also argues that "[a]lthough both appellee and co-defendant NC State University attempted to make light of the fact that appellee was paid directly by NC State, which was inconsistent with the statute, the manner of payment is one of the linchpins of the statute."
We again note that Town of Garner failed to assign error to any findings of fact regarding the method of payment. The Commission's unchallenged findings of fact establish that Chief Moss specifically approved the *212 method of payment in this case. He allowed such a method of payment to occur because he believed that the payment of $30.00 per hour by N.C. State without payroll deductions from the Town of Garner would result in increased payments to Officer Taylor. Chief Moss wanted to compensate Officer Taylor for the amount of money that he was expending for the mounted patrol.
Both plaintiff and Town of Garner argue that the Garner Police Department's past practices with the Chapel Hill Police Department are relevant to show whether the payment method in the instant case was consistent with N.C. Gen.Stat. § 160A-288(a). However, the Commission made no findings of fact or conclusions of law as to this issue. We therefore decline to take this into consideration. See Bowen v. ABF Freight Sys., 179 N.C.App. 323, 330-31, 633 S.E.2d 854, 859 (2006) ("[I]t is not this Court's role to make new findings of fact based upon the evidence[.]"). The Commission's unchallenged findings of fact show that the parties mutually agreed to the payment arrangement for Officer Taylor when working mounted patrol at N.C. State football games.
Substantial Compliance
The Commission's unchallenged and binding findings of fact establish that the parties clearly intended for Officer Taylor to work as a mounted patrol officer with powers of arrest at N.C. State on 27 October 2007 pursuant to the Agreement and explicitly agreed that he would be paid directly by N.C. State. Because the Legislature clearly intended for law enforcement officers to be protected for purposes of workers' compensation benefits when acting in this capacity, we hold the parties substantially complied with the requirements of N.C. Gen.Stat. § 160A-288(a) for personnel and administrative purposes. The Commission's unchallenged findings of fact support the Commission's conclusion of law that on 27 October 2007 Officer Taylor was working pursuant to the Agreement and that Town of Garner is liable for his compensable injury pursuant to N.C. Gen.Stat. § 160A-288.
Based upon the above analysis, we need not address Officer Taylor's cross-assignment of error.
AFFIRMED.
Judges WYNN and CALABRIA concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315618/ | 155 Ga. App. 304 (1980)
270 S.E.2d 816
MULKEY
v.
THE STATE.
59819.
Court of Appeals of Georgia.
Submitted May 5, 1980.
Decided July 2, 1980.
Rehearing Denied July 15, 1980.
Carol W. Hunstein, for appellant.
Frank C. Mills, III, District Attorney, for appellee.
BIRDSONG, Judge.
Arson. Edgar Mulkey was convicted of arson in the first degree, and appeals, enumerating three errors.
The burned store building housed a men's retail clothing business owned and operated by Mulkey. Chief witness against Mulkey was Disharoon, who plead guilty to the same offense, and whose testimony that Mulkey hired him to commit the crime is the only direct evidence that the appellant was a principal in the commission of the crime.
The evidence disclosed that Mulkey had approximately $60,000 in inventory in the store including a recent shipment of men's shirts. He had recently increased his "multi-peril" insurance from $30,000 to $40,000. He owed the business' former owner $8,000 on a note which had been due eighteen months prior to the fire; he was behind in monthly rental payments to the building's owner. Business had not been doing as well as he had expected. Mulkey and his wife had been thinking of selling the business and had potential buyers. About three months before the fire, Mulkey had reapplied for employment at Lockheed and had been mailed a notice of his rehiring ten days before the fire. Mulkey had removed an antique organ from the store the night before the fire because, he said, he had a potential buyer for the organ whose name he could not remember at trial; but he left the top part of the organ in the store and had intended to get it the next day.
A waitress in a nearby restaurant, also owned and operated by *305 Mulkey, saw Mulkey and Disharoon together drive up to the restaurant the evening before the fire. Early on Friday, the morning of the fire, two men saw Disharoon enter the men's store building with a key and saw him leave shortly thereafter. The waitress saw Disharoon come in the restaurant and speak to Mulkey early that Friday morning. On Wednesday, five days after the fire, but before Disharoon was arrested, Disharoon and a companion stopped at the restaurant because, as Disharoon told the companion, "this man here owes me some money that owns this restaurant"; when the two went inside, a man identified as Mulkey came over to Disharoon, and Disharoon said, "Have you got me some money" or "Do you have any money?" Mulkey gave Disharoon an undetermined amount of money, and Disharoon put it in his pocket without counting it. Disharoon's wife had been working for about five years in the restaurant as the cook; apparently Disharoon frequently visited the restaurant for hours at the time and had worked there himself on occasion. Mulkey stated that he occasionally lent Disharoon money, and that is what he was doing that day.
Disharoon testified that he and Mulkey first discussed burning the building two or three weeks before the fire; that Mulkey offered him $1,000 to do the job but never discussed any particular time that Disharoon was to do it, until the Thursday before Disharoon set the fire on Friday. Disharoon had earlier bought a five-gallon can of mineral spirits and set it in the back of Mulkey's truck. On Thursday evening before the fire, Disharoon helped Mulkey and Mulkey's teenaged son move the antique organ out of the store because, he said, Mulkey wanted to move it out before the fire. During this process, Disharoon told Mulkey's son to put the mineral spirits can in the back of the store. They also removed some tuxedos from the store. Afterwards, Disharoon and Mulkey drove back to the restaurant where Disharoon had left his car. Disharoon and Mulkey sat a while in the restaurant, and Disharoon testified that Mulkey then removed the store key from a large key ring containing many keys and gave the key to Disharoon. Disharoon testified that he went back to the store that evening and poured the mineral spirits on the stock and especially under the Tots & Teens counter; that Mulkey had specifically told him to pour it there because the Tots & Teens "was in a tight too." Disharoon went back and set the fire the next morning, intending to burn only the stock because, he said, "I wasn't wanting to burn the whole town up." He first had taken his wife to the restaurant and then went back to the restaurant after he set the fire; there he saw Mulkey and gave him back the key. There had been no agreement as to when Mulkey was to pay Disharoon.
There was evidence that there had been a disagreement or *306 dispute between Mulkey and Disharoon concerning some insurance proceeds allegedly due Disharoon's wife, and that Disharoon had accused Mulkey of pocketing the money; although the insurance agent explained the situation to Disharoon, Disharoon never did understand it, and there was evidence he had made threats because of it. An associate of Mulkey testified that Mulkey never kept his store key on his large key ring, but carried it separately in his pocket. Disharoon admitted that he had written letters to a man named Jacoby, whom he had earlier met in jail, but denied that he had ever sent Jacoby a letter stating that he was jealous of Mulkey and had burned Mulkey's store because Mulkey was allegedly having an affair with his, Disharoon's, wife. It is urged that the trial court erred in refusing to permit Jacoby to testify as to the contents of such a letter because the letter could not be produced. Held:
It is alleged that the testimony would show that Disharoon had burned Mulkey's store because of jealousy and had implicated Mulkey in the burning for the same reason. Objection to the testimony was interposed on grounds that the letter was the best evidence of what was in it; the testimony was excluded on mixed grounds that it was hearsay and was not the best evidence.
It is true that where one attempts to testify concerning a letter's contents, if the letter is available the letter itself is the best evidence of what is in it, and oral testimony is therefore inadmissible. In this case, Jacoby testified that while he still had some of Disharoon's letters, he did not have all of them; that he had diligently searched for the letter at issue but could not find it. The question of inaccessibility of primary evidence and diligence of the party is a determination within the discretion of the trial judge (Code Ann. § 38-212) and his decision will not be overturned unless that discretion is abused. Brooks v. State, 63 Ga. App. 575, 576 (2) (11 SE2d 688). In this case, we hold it was an abuse of that discretion to exclude testimony which should have qualified as secondary evidence (Code Ann. § 38-212) and which comprised appellant's most critical defense to the only direct evidence against him. The absence of the letter in court was explained by Jacoby, as was his diligence in searching for it; in no other way could this letter be accounted for but that it was "lost." This is good and reasonable cause in inaccessibility required under Code Ann. §§ 38-203 and 38-212, made clear at Code Ann. § 38-702.
Code Ann. § 38-203 requires only that "the best evidence which exists of the fact sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for." (Emphasis supplied.) Secondary evidence is admissible when "... it shall appear that the primary evidence for some sufficient cause, is not accessible to the diligence of the party... [T]he court ... shall hear the party himself *307 on the question of diligence and the inaccessibility of the primary evidence." (Code Ann. § 38-212). Under Code Ann. § 38-702, specifically, proof that a paper is lost or destroyed shall admit secondary evidence, and "the party shall be a competent witness to this point. The question of diligence is one for sound discretion of the court."
The function of the trial court is not to determine the worthiness or credibility of the secondary evidence, but is only to determine whether what is offered as evidence is the best form accessible to the court. See Rushin v. State, 63 Ga. App. 646, 648 (11 SE2d 844). The last person who in fact had custody of the letter must make a "complete and proper showing with respect to the alleged non-existence or inaccessibility or loss" of the letter. Lott & Perkins v. Buck & Downing, 113 Ga. 640, 641 (39 S.E. 70). Merely asserting the loss, without showing diligence in attempting to provide the item, will not do. Lott & Perkins, supra. The proper showing was made in this case, and the oral testimony as to the letter's contents should have been admitted. See Lunday v. Thomas, 26 Ga. 537 (3), 539 (fn); Sinclair Refining Co. v. Giddens, 54 Ga. App. 69 (4), 70 (187 S.E. 201); Harrison v. State, 20 Ga. App. 12 (3) (92 S.E. 388). If there be any question as to the credibility of the testimony, still the jury ought to receive it and determine its credibility in the same way it determines the credibility of the testimony offered by the arsonist Disharoon against appellant. The testimony was not hearsay but was original evidence which might explain Disharoon's conduct and ascertain his motives in implicating appellant in the offense (Code Ann. § 38-302; Boggus v. State, 136 Ga. App. 917 (222 SE2d 686)). Had the testimony been admitted, we cannot say that the jury would not have concluded that all the evidence in the case would not demand a verdict against Mulkey for the commission of arson beyond a reasonable doubt. The error in excluding it was therefore harmful. See Cauley v. State, 130 Ga. App. 278, 286-288, 290-293 (203 SE2d 239). We reverse the case for that reason and therefore find it unnecessary to examine appellant's remaining enumerations of error.
Judgment reversed. Deen, C. J., and Sognier, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315613/ | 155 Ga. App. 257 (1980)
270 S.E.2d 696
UNION COMMERCE LEASING CORPORATION
v.
BEEF `N BURGUNDY, INC. et al.
59537.
Court of Appeals of Georgia.
Argued March 11, 1980.
Decided July 11, 1980.
Bernard L. Greer, Jr., B. Lee Crawford, Jr., Richard L. Stumm, for appellant.
Wayne L. Cardon, for appellees.
SMITH, Judge.
Appellant, Union Commerce Leasing Corporation, brought this action seeking to recover rental due under a lease of a cash register and two "bar guns." Appellee Beef'N Burgundy asserted a defense of breach of warranty. Appellant contends it made no warranty. Motions for summary judgment were filed by both sides. The motions were denied. At trial, the trial court directed a verdict in favor of appellees Goodrich and Gilchrist, the sureties to the lease agreement. The trial court also directed a verdict in favor of the remaining appellees on appellant's claim for rental due on the cash register. However, the court directed a verdict for appellant in the *258 amount of $3,345.65 on its claim for rental due on the two bar guns. The court disallowed recovery of attorney fees. We affirm in part and reverse in part with direction.
1. The trial court denied appellant the rental value of the cash register under the lease agreement because "the plaintiff did not fulfill the terms of his warranty." Appellant argues no such warranty exists. We agree.
Under the lease, an electronic cash register and two bar guns were to be delivered by a "Supplier," Automated Data Systems, Inc. Paragraph 1 of the lease contains the following language: "Description of Leased Equipment (Hereinafter called `equipment') DTS Model 400; S/N 10437 Electronic Cash Register interfaced/ 2/6 brand guns complete with liquor room, training, 1 year warranty on parts and labor." The description is typewritten. The remainder of the contract is a printed form, supplied by appellant. Paragraph 7 states: "SELECTION OF EQUIPMENT: ACCEPTANCE: WARRANTIES: REPRESENTATIONS. Lessee has selected both the equipment and the Supplier from whom Lessor covenants to purchase the equipment at Lessee's request. Lessee agrees to accept the equipment if delivered in good repair, and to execute the delivery receipt supplied by Lessor, as evidence thereof. Lessee agrees to hold Lessor harmless from specific performance of this lease and from damages, if for any reason the Supplier fails to deliver the equipment so ordered. Lessee agrees that any delay in delivery of the equipment shall not affect the validity of this lease. LESSEE AGREES THAT THE EQUIPMENT LEASED HEREUNDER IS LEASED `AS IS' AND IS OF A SIZE, DESIGN AND CAPACITY SELECTED BY LESSEE AND THAT LESSEE IS SATISFIED THAT THE SAME IS SUITABLE FOR LESSEE'S PURPOSES, AND THAT LESSOR HAS MADE NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE SUITABILITY OR DURABILITY OF SAID EQUIPMENT FOR THE PURPOSES AND USES OF LESSEE, OR ANY OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT THERETO, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Lessor hereby assigns to Lessee for and during the terms of this lease any applicable factory warranty covering the leased equipment. Lessee's obligations to pay the rentals or otherwise under this lease shall be and are absolute and unconditional. All proceeds of any warranty recovery by Lessee from the manufacturer of supplies of the equipment shall first be used to repair or replace the affected equipment. Lessee agrees to settle all such claims with the Supplier of the leased equipment and agrees further not to set up against *259 Lessee's obligations any such claims as a defense, counterclaim, set-off, or otherwise.
"LESSEE ACKNOWLEDGES AND AGREES THAT NEITHER THE SUPPLIER NOR ANY SALESMAN, EMPLOYEE, REPRESENTATIVE OR AGENT OF THE SUPPLIER IS AN AGENT OR REPRESENTATIVE OF LESSOR, AND THAT NONE OF THE ABOVE ARE AUTHORIZED TO WAIVE OR ALTER ANY TERM, PROVISION OR CONDITION OF THIS LEASE, OR MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THIS LEASE OR THE EQUIPMENT LEASED HEREUNDER. Lessee further acknowledges and agrees that Lessee, in executing this lease, has relied solely upon the terms, provisions, and conditions contained herein, and any other statements, warranties or representations, if any, by the supplier, or any salesman, employee, representative or agent of the supplier, have not been relied upon, and shall not in any way affect Lessee's obligation to pay the rent and otherwise perform as set forth in this lease." The trial court ruled that the warranty contained in the description of the items to be supplied constituted part of appellant's contractual obligation which controlled over the disclaimer provisions of Paragraph 7. Appellant argues that the "Description of Leased Equipment" refers solely to that which Beef 'N Burgundy was to receive from the "Supplier."
"The cardinal rule of construction of contracts is to determine the intention of the parties thereto, and that construction will be favored which gives meaning and effect to all of the terms of the contract over that which nullifies and renders meaningless a part of the language therein contained. Atlanta, Knoxville &c. R. Co. v. McKinney, 124 Ga. 929 (53 S.E. 701, 6 L.R.A. (NS) 436, 110 Am. St. Rep. 215); Dooley v. Savannah Bank & Trust Co., 199 Ga. 353 (34 SE2d 522); Simpson v. Brown, 162 Ga. 529 (134 S.E. 161, 47 A.L.R. 865)." Burch v. Ragan, 92 Ga. App. 605, 607 (89 SE2d 541) (1955). "... [I]n construing contracts the entire writing is to be taken into consideration to ascertain the intent of the parties and, if the same can be ascertained, that intention should govern. Bridges v. Home Guano Co., 33 Ga. App. 305, 309 (125 S.E. 872)." Cummings v. Cummings, 89 Ga. App. 529, 532 (80 SE2d 204) (1954). "... [I]f possible, all of its provisions should be so interpreted as to harmonize with each other ..." McCann v. Glynn Lumber Co., 199 Ga. 669, 674 (34 SE2d 839) (1945).
In the instant case, there are two possible constructions. Either the warranty is part of appellant's obligation and conflicts with the warranty disclaimers or it is merely a statement of what was to be provided by the supplier or manufacturer.
Appellant argues that the latter construction should be adopted *260 since such a construction is reasonable and will "give effect to each material and valid clause [of the contract]." Marbut v. Empire Life Ins. Co., 143 Ga. 654, 657 (85 S.E. 834) (1915). We agree.
When viewed in conjunction with Paragraph 7, the "Description of Leased Equipment" clearly relates to that which was to be provided by the "Supplier." The agreement states: "Lessee agrees to hold Lessor harmless if, for any reason, the supplier fails to deliver the equipment so ordered." The term "equipment" expressly refers to what is included under the "Description of Leased Equipment." Moreover, the agreement contemplates that a warranty may be provided by parties other than the lessor. The agreement specifically provides: "Lessor hereby assigns to Lessee for and during the terms of this lease any applicable factory warranty covering the leased equipment. Lessee's obligations to pay the rentals or otherwise under this lease shall be and are absolute and conditional. All proceeds of any warranty recovery by Lessee from the manufacturer of supplies of the equipment shall first be used to repair or replace the affected equipment. Lessee agrees to settle all such claims with the supplier of the leased equipment and agrees further not to set up against Lessee's obligation any such claims as a defense, counterclaim, set-off, or otherwise."
This language would be rendered superfluous if the warranty contained in the description of the leased equipment were construed as flowing from the lessor. Conversely, by holding that the warranty flows from the "Supplier" or manufacturer, the entire contract is given effect. We conclude that the trial court erred in construing the warranty as part of appellant's obligation under the lease agreement.
2. Appellant asserts that the trial court erred in excluding from evidence Plaintiff's Exhibit Number 4. However this exhibit is not in the record and its exclusion is therefore not subject to review.
3. The trial court ruled that the sureties to the lease agreement were discharged by virtue of an oral modification whereby a manual cash register was substituted for an electronic model. The lease agreement provides: "This instrument constitutes the entire contract between the parties hereto, and no representations, oral or written, shall constitute an amendment hereto unless signed in writing by an officer of the Lessor."
Appellees Goodrich and Gilchrist do not argue that the substitution of the cash registers did not constitute a valid modification of the lease as between the parties thereto. Rather, appellees contend that such a modification operates as a discharge of the sureties because the agreement to substitute cash registers was not in writing as required by the lease agreement. We cannot agree.
The "continuing guaranty" provides: "The undersigned *261 agree(s) that no modification, extension or indulgence granted to the Lessee, its successors or assigns, shall release the undersigned from this guaranty, and that this guaranty shall continue in full force and effect as to any renewal, extension or modification of any existing or future lease agreements with said Lessee. The undersigned expressly waive(s) notice of default in the payment of rents or in the performance or in the observance of any of the terms, provisions, covenants or conditions contained in said lease agreement(s) and expressly agrees that the validity of this agreement and the obligations of the undersigned hereunder shall in nowise be terminated, affected or impaired by reason of the waiving, delaying, exercising or nonexercising, of any of the rights of the Lessor against the Lessee pursuant to any of the aforementioned lease agreements or against the undersigned by reason of this guaranty or as a result of the substitution, release, repossession, sale or destruction of any collateral or of the items leased or to be leased to the Lessee." By virtue of this provision, the sureties were not discharged on account of the substitution of cash registers without a "writing [signed] by an officer of the Lessor." "`A surety is not discharged by any act of the creditor or obligee to which he consents. Consent may be given ... in advance, as at the time the contract of suretyship is entered into. Colodny v. Dominion Mtg. &c. Trust, 141 Ga. App. 139, [142 (232 SE2d 601) (1977)]. See Hemphill v. Simmons, 120 Ga. App. 823, 826 (172 SE2d 178) (1969); Overcash v. First Nat. Bank, 115 Ga. App. 499, 502 (155 SE2d 32) (1967)." Bonner v. Wachovia Mortgage Co., 142 Ga. App. 748, 750 (236 SE2d 877) (1977).
Appellees Goodrich and Gilchrist argue that, even assuming they are not discharged on account of the modification, they are nonetheless discharged under Code § 103-203. It is argued that appellant's breach of warranty substantially increased their risk. See Seaboard Loan Corp. v. McCall, 61 Ga. App. 752 (7 SE2d 318) (1940). However, since we have ruled that appellant did not provide a warranty under the lease agreement, we must conclude that the trial court erred in directing a verdict in favor of appellees Goodrich and Gilchrist on the ground of increased risk if, in fact, this was the basis of the trial court's ruling.
4. Appellant contends it is entitled to attorney fees as a matter of law since 1) both the lease agreement and the guaranty contain an attorney fees provision and 2) proper notice of intent to collect attorney fees was included in its complaint. See New House Products, Inc. v. Commercial Plastics & Supply Corp., 141 Ga. App. 199 (233 SE2d 45) (1977); General Electric Credit Corp. v. Brooks, 242 Ga. 109 (249 SE2d 596) (1978). However, "[a]ssuming arguendo that the notice ... set out in the pleadings was proper notice under *262 Code § 20-506, [appellant] made no attempt to introduce it into evidence ... There being no proof of notice, [appellant] had no valid claim for attorney fees ..." Carter v. Jenkins, 143 Ga. App. 42-43 (237 SE2d 440) (1977). The trial court did not err in directing a verdict against appellant on the issue of attorney fees.
5. The judgment is affirmed with respect to the recovery already allowed. The judgment is otherwise reversed with direction that a new trial be granted in accordance with this opinion.
Judgment affirmed in part and reversed in part with direction. McMurray, P. J., and Banke, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315617/ | 270 S.E.2d 409 (1980)
301 N.C. 164
STATE of North Carolina
v.
Norris Carlton TAYLOR.
No. 1.
Supreme Court of North Carolina.
October 7, 1980.
*411 Atty. Gen., Rufus L. Edmisten by Sp. Deputy Atty. Gen., Ann Reed and Associate Atty., William R. Shenton, Raleigh, for the State.
Mary Ann Talley, Public Defender, Fayetteville, for defendant.
CARLTON, Justice.
We find prejudicial error in the trial court's instructions on kidnapping under G.S. 14-39 (Cum.Supp.1979) and hold that he is entitled to a new trial in the kidnapping case. We find no error in the trial for first degree rape.
I.
Briefly, evidence for the State tended to show that on the evening of 28 August 1978 Jewel Taylor, an accountant, was returning to work and parked her car in the parking lot of the Wachovia Bank Building in downtown Fayetteville, North Carolina. As she walked from her car toward the building, she noticed a black male, later identified as the defendant, approaching her. Defendant grabbed her by the arm, pointed a gun at her and told her to get back in the car and take him wherever he wanted to go or he would kill her. Ms. Taylor complied with the demand, returned to the car and proceeded to drive in accordance with defendant's directions. Defendant directed her to Pope Park in Fayetteville and, after driving through the park, made her stop the car. At that time defendant related to Ms. Taylor the history of his recent criminal activities and told her that he wanted to have sex with her. Ms. Taylor was forced to get out of the car and to remove her clothes. She was then forced, at gunpoint, to have sexual intercourse with defendant against her will. After the rape, defendant instructed her to return to the car and to drive north on U.S. I-95. Ms. Taylor drove north until they reached Petersburg, Virginia, at which time defendant made Ms. Taylor park the car. Defendant and Ms. Taylor waited in the car until daylight so that he could find another car to steal. When he left her car in pursuit of another, Ms. Taylor drove away.
Defendant was apprehended on 1 September 1978 in Woodland, North Carolina, and transported to the Sheriff's Department in Northampton County. After being advised of his rights, defendant was interrogated and confessed to the charges that are the subject of this appeal. He was later taken to Fayetteville. The case was removed to Guilford County for trial.
II.
We first consider whether the trial court erred in its instructions to the jury on the kidnapping charge. Because the instructions allowed the jury to convict on grounds other than those charged in the indictment, we hold that it did.
Defendant was tried under G.S. 14-39 which provides:
Kidnapping.-(a) Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person, or any other person under the age of 16 years without the *412 consent of a parent or legal custodian of such person, shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:
(1) Holding such other person for ransom or as a hostage or using such other person as a shield; or
(2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony; or
(3) Doing serious bodily harm to or terrorizing the person so confined, restrained or removed or any other person.
(b) Any person convicted of kidnapping shall be guilty of a felony and shall be punished by imprisonment for not less than 25 years nor more than life. If the person kidnapped, as defined in subsection (a), was released by the defendant in a safe place and had not been sexually assaulted or seriously injured, the person so convicted shall be punished by imprisonment for not more than 25 years, or by a fine or not more than ten thousand dollars ($10,000), or both, in the discretion of the court.
G.S. 14-39(a)-(b).[1]
Defendant contends that the trial court's instructions to the jury on the kidnapping charge did not comport with the grounds charged in the indictment. In order to examine this contention, we set out relevant portions of the indictment and the jury instructions.
That portion of the indictment under which defendant was convicted of kidnapping charged as follows:
THE JURORS FOR THE STATE UPON THEIR OATH DO PRESENT, that Norris Carlton Taylor, on or about the 28th day of August, 1978, in Cumberland County, North Carolina, did unlawfully, wilfully and feloniously kidnap Jewel Faye Taylor, a person who had attained the age of sixteen (16) years, by unlawfully removing her from the parking lot of the Wachovia Building on Green Street, Fayetteville, North Carolina to Pope Park, located adjacent to Interstate Highway Number 95 in Cumberland County, Fayetteville, North Carolina for the purpose of facilitating the commission of the felony of rape and for the purpose of facilitating the flight of the defendant, Norris Carlton Taylor following the commission of a felony. The said Jewel Faye Taylor was sexually assaulted in the course of this kidnapping, in violation of North Carolina General Statutes Section 14-39.
(Emphases added.)
With respect to the kidnapping charge, the trial court instructed the jury as follows:
The defendant is also charged with the crime of kidnapping. In order for you to find the defendant guilty of kidnapping, there are four things that the State must prove, each beyond a reasonable doubt. First, that the defendant unlawfully confined Jewel Taylor, either in her automobile or at Pope Park or removed her by force from the Wachovia Building to Pope Park, or from Pope Park to a place in Virginia.
Second, that Jewel Taylor did not consent to that act. Again, I advise you that consent obtained or induced by fear is not consent in the eyes of the law. Third. That you find the defendant confined or restrained Jewel Taylor for the purpose *413 of facilitating his flight from apprehension for another crime, or to obtain the use of her vehicle. Finally, that the removal was a separate and complete act, independent and apart from his obtaining the vehicle or any other criminal act on his part; that it was a separate act. If you find these things from the evidence and beyond a reasonable doubt, then you will have found sufficient facts upon which to find the defendant guilty of the crime of kidnapping. Therefore, I instruct you that if you find from the evidence, and beyond a reasonable doubt, that on or about the 28th day of August 1978, Norris Carlton Taylor unlawfully restrained Jewel Taylor or unlawfully removed her from the area of Wachovia Building to the area of Pope Park in the City of Fayetteville, or to some other place, and that Jewel Taylor did not consent to this removal or restraint, and that it was done for the purpose of facilitating Norris Taylor's flight after committing a crime, or obtaining possession, unlawfully, of Jewel Taylor's car I might say that one does not have to complete his intent; the mere fact the he intended would be sufficient and you further find that this act was a separate and complete act, independent and apart from either the felony he committed or the felony he is charged with having committed thereafter, it would be your duty to return a verdict of guilty of kidnapping.
(Emphases added.)
It is a well-established rule in this jurisdiction that it is error, generally prejudicial, for the trial judge to permit a jury to convict upon some abstract theory not supported by the bill of indictment. State v. Dammons, 293 N.C. 263, 237 S.E.2d 834 (1977); State v. Thorpe, 274 N.C. 457, 164 S.E.2d 171 (1968); see State v. Duncan, 264 N.C. 123, 141 S.E.2d 23 (1965). When the jury instructions are examined under this rule, it is apparent that the charge is erroneous in several respects.
Here, the instructions presented to the jury several possible theories of conviction which were not charged in the bill of indictment. First, the bill of indictment charged defendant with unlawfully "removing" Jewel Taylor from the parking lot of the bank. However, in his charge to the jury, the trial court instructed with respect to the defendant having unlawfully "confined" and "restrained" Ms. Taylor. While these theories of the case might be supported by the evidence, they are not charged in the indictment.
Secondly, the bill of indictment charged that defendant unlawfully removed Ms. Taylor from the parking lot "for the purpose of facilitating the commission of the felony of rape and for the purpose of facilitating the flight of the defendant . . . following the commission of a felony." In his charge to the jury, however, the trial court instructed that defendant would be guilty of kidnapping if, inter alia, the jury found that "the defendant confined or restrained Jewel Taylor for the purpose of facilitating his flight from apprehension for another crime, or to obtain the use of her vehicle." (Emphasis added.) In State v. Thorpe, supra, the indictment for first degree burglary alleged that defendant intended to "feloniously ravage and carnally know" the person who occupied the dwelling. This Court held it was error to instruct the jury that defendant would be guilty if he entered with "the intent to commit a felony." The Court cited the rule that "[t]he indictment having identified the intent necessary, the State was held to the proof of that intent." Id. 274 N.C. at 464, 164 S.E.2d at 176. Here, the indictment charged that defendant's purposes in removing his victim were to facilitate the commission of the felony of rape and to facilitate the flight of the defendant following the commission of a felony. It was prejudicial error, therefore, for the trial court to instruct with respect to "another crime" and to refer to "[obtaining] the use of her vehicle," the latter not being charged in the bill of indictment.
Thirdly, the trial court erred in stating "that the removal was a separate and complete act, independent and apart from his obtaining the vehicle or any other criminal *414 act on his part . . . ." (Emphasis added.) Clearly, such reference to "obtaining the vehicle" was misleading to the jury; the armed robbery charge had been dismissed and was not a part of the case being presented to the jury for consideration.
The State's theory, under the bill of indictment, was that defendant had unlawfully removed Ms. Taylor from one place to another for the express purpose of facilitating the commission of the felony of rape and for the purpose of facilitating his flight from the commission of the felony of rape. At no point, however, did the trial court instruct with respect to kidnapping for the express purposes stated in the bill of indictment. Its failure to instruct on the theory charged in the bill of indictment, in addition to its instructions on theories not charged, constitute prejudicial error entitling defendant to a new trial on the charge of kidnapping. State v. Dammons, supra; State v. Thorpe, supra.
III.
We turn next to defendant's contentions that the trial court improperly ruled on his motions in limine to suppress evidence as to other crimes defendant admitted to the prosecuting witness and to restrict evidence of prior or subsequent convictions or acts of misconduct on the part of the defendant. In connection with these motions the trial court ruled, in part, as follows:
The Court is informed that the State's evidence will tend to show that at the initiation of this series of alleged events, the defendant, Norris Carlton Taylor, advised the victim, Jewel Taylor, of his previous murder of a number of people and of his previous rapes. That this was part of the placing in fear and the subjugation of the will of Jewel Taylor.
The State will be allowed to elicit from Jewel Taylor evidence relating to the threats and brags of the defendant in connection with this series of crimes.
The State may also elicit testimony from Jewel Taylor of rapes subsequent to the original Cumberland County rapes involving Jewel Taylor and the defendant, Norris Taylor, as being a part and parcel of the single course of conduct.
The State will not be permitted to elicit evidence from any witness of prior acts for which the defendant has not been convicted, other than the crimes that may have been committed against Jewel Taylor as a part of this series of events. Evidence relating to an alleged armed robbery of a service station on Interstate 95 by the defendant will not be admitted, and the State is directed not to elicit such testimony.
The State is in no way restricted in its cross-examination of the defendant, from cross-examining the defendant on any and all prior convictions, but is restricted as to acts of misconduct for which he has not been convicted.
Defendant first contends that the trial court erred in allowing Ms. Taylor to testify as to other crimes admitted by defendant to her. He argues that Ms. Taylor's will was overcome and her submission procured by the use of a deadly weapon, not by any statements he made to her, and that the only relevance of his statements is to show the character of the defendant or his disposition to commit a crime. If this were the case, the admission of these statements would be in violation of the North Carolina rule that in a prosecution for a particular crime, the State cannot introduce evidence tending to show that the accused has committed another distinct, independent or separate offense. E.g., State v. Duncan, 290 N.C. 741, 228 S.E.2d 237 (1976); State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954).
Defendant's reliance on this rule is misplaced for two reasons. Firstly, this exclusionary rule applies only when the sole relevancy of the evidence of other crimes is its tendency to show the defendant's disposition to commit a crime of a nature similar to the one for which he is being tried. State v. Cherry, 298 N.C. 86, 109, 257 S.E.2d 551, 565 (1979), cert. denied, ___ U.S. ___, 100 S. Ct. 2165, 64 L. Ed. 2d 796 (1980); State v. Shrader, 290 N.C. 253, 264, 225 S.E.2d 522, 530 (1976); State v. Carey, 288 N.C. 254, 269, 218 S.E.2d 387, 397 (1975), death *415 sentence vacated, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1209 (1976); State v. McClain, supra. Here, defendant's admissions to Ms. Taylor, made prior to the rape, are also relevant to show the subjugation of her will. Secondly, assuming arguendo that the rule is applicable here, the evidence is admissible under a well-recognized exception to the rule because defendant's statements are part of a common scheme or plan embracing the kidnapping and the rape. See State v. McClain, 240 N.C. at 176, 81 S.E.2d at 367. These statements are an integral part of the proof of the crimes for which defendant was tried and are so interwoven as to constitute one transaction or series of events. In State v. McClain, supra, Justice Ervin quoted with approval the test articulated by the Supreme Court of South Carolina for determining whether the rule requires the exclusion of evidence of an offense other than the one charged:
"The acid test is its logical relevancy to the particular excepted purpose or purposes for which it is sought to be introduced. If it is logically pertinent in that it reasonably tends to prove a material fact in issue, it is not to be rejected merely because it incidentally proves the defendant guilty of another crime."
Id. at 177, 81 S.E.2d at 368, quoting State v. Gregory, 191 S.C. 212, 221, 4 S.E.2d 1, 4 (1939). An essential element of the crime of rape is that it is committed against the will of the victim. Thus, subjugation of Ms. Taylor's will is a "material fact in issue," defendant's statements tend to show that the victim's will was overcome, and, hence, they were properly admitted.
In this same connection, defendant additionally contends that the trial court's denial of its motion in limine improperly allowed other prosecuting witnesses to testify concerning prior and subsequent acts of misconduct by the defendant. We note that the "subsequent acts" of misconduct testified to by other witnesses are, in reality, a part of the same transaction as the kidnapping and rape. The testimony of each of these witnesses simply corroborated the testimony of Ms. Taylor and is therefore clearly admissible. See State v. Rose, 270 N.C. 406, 154 S.E.2d 492 (1967); 1 Stansbury's North Carolina Evidence § 50 (Brandis Rev. 1973).
For these reasons, we hold that the trial court properly denied defendant's motions in limine and the assignments of error with respect thereto are overruled.
IV.
Defendant also contends that his statements to authorities were not voluntary because threats were being made against his life by civilians at the scene of his arrest, because two police officers had their guns drawn, because the questioning of defendant was protracted and because he was not immediately taken before a magistrate upon his arrest. Defendant's contention is without merit. We glean from the record that the threats made against defendant were made only at the scene of the arrest and by civilians, a circumstance over which the arresting officers had no control. Moreover, they were made prior to and separate from any statements made by defendant about the offenses which are the subject of this appeal. Use of the police weapons at the scene of the crime was not unwarranted; defendant was armed and dangerous. Moreover, defendant was not threatened by the officers in any way. The record also reveals that questioning of defendant was not unduly protracted in that defendant voluntarily mentioned separate offenses not the subject of the initial interrogation and other law enforcement agencies were called in. Finally, the record discloses that defendant was advised of his rights and knowingly and intelligently waived his rights to counsel and to remain silent prior to each interview. He at no time requested that an attorney be present or that he wished to remain silent. Indeed, when informed during interrogation that his court-appointed counsel was present and wished to talk with him, defendant stated that he wanted to finish talking with the police before seeing his attorney. Under these circumstances, we hold that defendant's statements were voluntary.
*416 Defendant assigns numerous other errors which we deem unnecessary for discussion in this opinion. He contends, for example, that the district attorney should have been removed from the trial of this case because it was necessary for an assistant district attorney to testify as to the time of defendant's first appearance in the trial court. He also contends that the trial court made prejudicial comments to the jury throughout the trial, that the trial court erred in allowing the district attorney to ask prejudicial and leading questions of the State's witnesses, that the trial court erred in allowing the State's motions to introduce into evidence certain items of physical evidence, and that the trial court erred in allow redirect testimony outside the scope of cross-examination. With respect to these and other assignments not enumerated herein, it is sufficient to say that we have reviewed them carefully and find them completely without merit.
Finally, we note defense counsel's statement in defendant's brief that she has reviewed the entire record of this case and can find no error in the submission of the charges of rape and kidnapping to the jury. She requests, however, that "in light of the seriousness of the offenses involved in this trial, defense counsel respectfully requests this Court to review the record to determine the sufficiency of the evidence for the consideration of the jury." We have done as defense counsel requested and find that the State's evidence was not only sufficient, but overwhelming, to show every essential element of the crime of first degree rape and that defendant was the rapist. G.S. 14-27.2 (Cum.Supp.1979). In light of our disposition of the kidnapping conviction, we do not consider the sufficiency of the evidence to support that verdict.
For the reasons stated above, we hold that defendant is entitled to a new trial in the kidnapping case. We also hold that defendant had a fair trial, free from prejudicial error, in the rape case.
On the first degree rape convictionNO ERROR.
On the kidnapping convictionNEW TRIAL.
BROCK, J., took no part in the consideration or decision of this case.
NOTES
[1] We first note that the record refers to the charge against defendant pursuant to this statute as "aggravated kidnapping." This expression likewise appears in the briefs of both parties. While not important to this decision, we remind the profession that the term "aggravated kidnapping" is a misnomer. We so stated in State v. Banks, 295 N.C. 399, 406-07, 245 S.E.2d 743, 749 (1978) and expressly rejected the term in State v. Williams, 295 N.C. 655, 663-65, 249 S.E.2d 709, 715-17 (1978). In Williams, Justice Exum clearly explained that G.S. 14-39 does not create two kidnapping offenses, one of simple kidnapping and another of aggravated kidnapping, but merely sets forth factors that will result in reduced punishment if the person kidnapped is released by defendant in a safe place and has neither been sexually assaulted nor seriously injured. We reiterate that the statute does not divide the crime of kidnapping into two separate offenses. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315611/ | 270 S.E.2d 743 (1980)
Vincent James GIRARDI
v.
COMMONWEALTH of Virginia.
Record No. 800118.
Supreme Court of Virginia.
October 10, 1980.
*744 Louis Koutoulakos, Arlington, for appellant.
Thomas D. Bagwell, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ.
COCHRAN, Justice.
Tried by the court on two amended indictments charging possession of methaqualone and possession of cocaine, James Vincent Girardi was found guilty as charged. By judgment entered November 16, 1979, his punishment was fixed at confinement in the penitentiary for one year and five years, respectively, execution of the five-year sentence being suspended upon specified conditions. On appeal, the question presented is whether the controlled drugs, discovered in Girardi's automobile, were improperly admitted into evidence as the product of a warrantless search and seizure in violation of his Fourth Amendment rights.
Girardi filed a pretrial motion to suppress the evidence on the ground that the contraband was illegally seized from his vehicle, a green Ford, because there was no search warrant and no probable cause for the search, and the entry into the automobile was "forced". After conducting a hearing, of which we have no transcript, the trial court overruled the motion. In a written opinion, the court ruled that Girardi's car, parked in a fire lane on private property, had been lawfully impounded by the police, and that the incriminating evidence had been discovered and seized during the course of a valid inventory search conducted in accordance with the policy and procedures of the Arlington County Police Department. At trial, on June 12, 1979, with another judge presiding, the evidence was admitted, over Girardi's objection, after witnesses for the Commonwealth had testified to the circumstances under which the police had seized the drugs. Girardi presented no evidence.
Sean Morrissey, a privately employed security guard, testified that on August 17, 1978, at approximately 2:30 a. m., he was on duty at the River House apartment complex. He had parked his car to make a security check when a man driving a green car with Pennsylvania license plates pulled up and asked him for directions to an apartment. Morrissey directed him to the desk clerk in River House No. 2. Later, while continuing on his rounds, Morrissey saw the green car parked in a fire lane in front of River House No. 2, but he assumed that the driver would soon return and did not issue a parking ticket or a warning for illegal parking. About 4:30 a. m., Morrissey observed Officer Peralta of the Arlington County Police Department in a car parked close to the green car. He conversed briefly with the officer about an unrelated matter and then moved away. When asked on cross-examination whether he saw Peralta "ticketing" the green car, Morrissey responded affirmatively. On other occasions he had seen tickets placed by the police on vehicles parked in the fire lane. Morrissey observed that Peralta entered the green car by force, and that he was present when a tow truck arrived and towed it away. Although Morrissey thought he knew the number of the apartment where the driver had gone, he did not give this information to Peralta until after the vehicle had been entered. Nevertheless, the security guard cooperated with the police and about 6:00 a. m. led them to the apartment where, in response to Morrissey's inquiry, the driver of the green car, subsequently identified as Girardi, came to the door. The police officers then "took over".
Officer Peralta testified that he was on routine patrol at 3:00 a. m., on August 17, when he observed an unoccupied 1978 green Ford with Pennsylvania tags parked in a fire lane at River House No. 2. Peralta *745 issued a summons for illegal parking and placed it on the windshield. Returning at 4:30 a. m., he saw that the car was still parked in the fire lane. He spoke to Morrissey but did not inquire whether he knew where the driver had gone. Peralta called for a tow truck, privately owned and operated under contract with the County, to remove the automobile in order to clear the fire lane for use by firefighting apparatus in the event of a fire in the high-rise apartment building. When the tow truck arrived, Peralta looked inside the Ford and saw numerous pieces of luggage, including several gym bags, on the back seat and floor. The car was locked with special theft-proof locks. There was no one near the Ford, and Peralta had no reason to believe that it contained contraband. Peralta sought to enter the vehicle to inventory and protect the personal property therein pursuant to an Arlington County Police Department directive in effect since June 1, 1977, providing in pertinent part as follows:
[An] inventory search ... conducted to identify and take possession for safekeeping of valuable property from the towed vehicle ... should be conducted prior to the towing of the vehicle for the place of impoundment ....
If a vehicle is locked ... the vehicle may be entered with the minimal force necessary to conduct the search .... If a search is to be conducted, the crane operator should be instructed to open the vehicle when he arrives at the scene.
According to Peralta, the tow truck operator, whom he asked to unlock the Ford, was unable to do so. At Peralta's request, another police officer, Sergeant Hawkins, then unlocked the door on the passenger side by inserting a thin metal plate known as a "Slim Jim" between the window and the frame. Peralta entered the vehicle and removed some of the luggage. He opened a partially closed blue-and-white gym bag that had a T-shirt protruding from it and found what appeared to be drug paraphernalia and an unknown quantity of controlled drugs. Realizing then that more than a routine inventory search was involved, Peralta replaced the drugs in the bag and took all the luggage to the police station for inventory and safekeeping. He himself inventoried jewelry, miscellaneous clothing, and tapes found inside the bags, but he did not give an inventory list to Girardi. The Ford was towed to a private lot.
Peralta returned from the police station to the apartment complex for the purpose of finding and arresting the driver of the Ford. With the assistance of Morrissey, Girardi was found in an apartment, identified as the driver, and arrested by the police.
Girardi first contends that the trial court erred in denying his pretrial motion to suppress evidence that was the product of an illegal seizure and search by the police after a forced entry into his locked automobile. In its opinion, the court ruled that the seizure of the vehicle occurred at the time the forcible entry was effected, and that the seizure was valid in order to protect the safety of residents of the apartment complex in the event of fire. Noting that Girardi questioned the right of the police to issue summonses for obstructing the fire lane on private property, the court ruled that, based upon Officer Peralta's testimony, which the court found to be the only evidence on the issue, the police had such authority. At trial on the merits, Girardi did not raise this question again, but the evidence therein taken supports the earlier ruling on the motion to suppress that Peralta had authority to seize Girardi's car and remove it from the fire lane.
Girardi argues that, even if the seizure was lawful, the ensuing warrantless search of his vehicle was invalid. The general rule is, of course, that warrantless searches without consent are per se unreasonable and thus invalid under the Fourth Amendment, subject to a few well-defined exceptions. Cady v. Dombroski, 413 U.S. 433, 439, 93 S. Ct. 2523, 2527, 37 L. Ed. 2d 706 (1973). See Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 2031-32, 29 L. Ed. 2d 564 (1971). Girardi acknowledges that one of the recognized exceptions *746 to the warrant requirement is the inventory search, as approved in South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976), Cady v. Dombrowski, supra, and Cabbler v. Commonwealth, 212 Va. 520, 184 S.E.2d 781 (1971), cert. denied, 405 U.S. 1073, 92 S. Ct. 1501, 31 L. Ed. 2d 807 (1972), but he says that the search of his car was not a valid inventory search. We disagree.
Girardi cannot successfully distinguish Opperman, Cady, and Cabbler. In Opperman, the vehicle was illegally parked in a restricted zone. After two summonses for illegal parking had been placed upon the windshield, the locked, unoccupied car was towed to the city's impoundment lot, where it was unlocked and searched pursuant to standard inventory procedures. Marijuana found in the unlocked glove compartment was held to be admissible in evidence. In Cady, the automobile was wrecked in an accident and the driver, an off-duty policeman, appeared to be intoxicated. The investigating officers had the car towed to an impoundment garage. Several hours later, knowing that the driver had a service revolver, an officer followed standard police policy by returning to the car to look for the weapon. Opening the door, the officer saw blood on a flashlight. He then opened the locked trunk and found incriminating evidence that was held to be admissible at trial. In Cabbler, the car was parked in a prohibited zone on a private driveway of a hospital. It was towed away and searched by the police in conformity with established procedures, and the incriminating evidence found during the inventory search was held to be admissible.
The inventory search exception to the warrant requirement is justified, as these cases demonstrate, to protect the owner's property, to protect the police from claims that property was lost or stolen, and to protect the police and the public from physical harm from the potentially dangerous contents of a seized automobile. Reese v. Commonwealth, 220 Va. ___, ___, 265 S.E.2d 746, 749 (1980). Where, as in the present case, the seized vehicle will be towed by a private operator to a private impoundment lot, there is good reason for the police to make an inventory search before they relinquish even temporary control over the car. Therefore, as the trial court stated in its opinion overruling the motion to suppress, the fact that in Opperman, Cady, and Cabbler, the search was made at the place of impoundment, and in the present case it was made at the place of seizure, provides no valid basis for distinguishing the cases.
We reject Girardi's argument that it was not necessary to remove the luggage because it was in a safe place in his locked car and posed no threat to the police. The fact that the car was locked did not protect the police from potential liability, it did not protect the police or the public from possible danger, and it did not protect the owner from possible loss or damage resulting from negligence or vandalism. The automobile impounded in Opperman was locked, as was the vehicle seized in United States v. Dall, 608 F.2d 910 (1st Cir. 1979), cert. denied, 445 U.S. 918, 100 S. Ct. 1280, 63 L. Ed. 2d 603 (1980). Further, the trial court found that Officer Peralta followed established Arlington County Police procedures in conducting a legitimate inventory search, and that there was no evidence that the officer "contrived the ... search as a pretext". See Thims v. Commonwealth, 218 Va. 85, 92, 235 S.E.2d 443, 447 (1977).
There is no merit in Girardi's contention that Peralta failed to follow the prescribed procedures for inventory searches mandated by the directive by not having the tow truck operator open the car door and by failing to make an inventory list and give a copy to Girardi. The directive recited that by contract the tow truck operator was required to have the necessary tools to unlock vehicles and should be instructed by the police to open an impounded car that was found to be locked. However, the evidence is clear that it was only after the tow truck operator had attempted unsuccessfully to unlock the Girardi car that Sergeant Hawkins performed this task. There is nothing in the *747 record to show that Peralta was required to present an inventory list to Girardi. Peralta testified that when he discovered the contraband drugs in Girardi's luggage he was confronted with a problem more serious than a routine inventory. He therefore transported all the personal property to the police station, delivered the contraband to be inventoried, and inventoried the other personal property himself before depositing it in the property room. He conceded that he did not give an inventory list to Girardi. We hold that the evidence supports the trial court's finding that the contraband was discovered during the course of a legitimate inventory search. Interruption or discontinuance of the inventory search upon discovery of the drugs did not invalidate it retroactively. The discovery immediately changed the police function from mere custodial care to the prompt investigation of the felonies thereby revealed.
On appeal, Girardi raised for the first time the question whether Peralta's search of the unlocked luggage was unreasonable and hence invalid under Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979), decided after Girardi's trial. Sanders is inapposite because it did not involve an inventory search. In Sanders, police officers had probable cause to believe that a suitcase placed in the trunk of a taxi by a passenger contained marijuana. They followed the vehicle, stopped it on the highway, seized the unlocked suitcase, and, without a warrant or consent, opened and searched it. The Supreme Court held that the warrantless search was invalid, in that no exigent circumstances excused the officers who had seized the suitcase from obtaining a search warrant before opening it. The majority of the Court considered the search to be an unreasonable extension of the "automobile exception" to the warrant requirement enunciated in Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970). The mobility and diminished expectations of privacy that justify the "automobile exception" do not extend to personal luggage that the police have brought under their exclusive control.
However, we do not reach the question which Girardi now poses. If a challenge to the constitutionality of a search and seizure is to be made on appeal, the challenge must be made first in a pretrial motion to suppress or by objection at trial. Manley v. Commonwealth, 211 Va. 146, 149, 176 S.E.2d 309, 312 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971); Rule 5:21. Girardi made no such challenge. Therefore, we do not decide whether it is constitutionally permissible in an inventory search to open and search unlocked personal luggage.
For the reasons assigned, the judgment of the trial court will be affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315674/ | 166 Cal. App. 2d 100 (1958)
332 P.2d 376
THE PEOPLE, Respondent,
v.
AMADOR RAMOS CISNEROS, Appellant.
Docket No. 6244.
Court of Appeals of California, Second District, Division Three.
December 12, 1958.
Gladys Towles Root and Eugene V. McPherson for Appellant.
Edmund G. Brown, Attorney General, and Miles J. Rubin, Deputy Attorney General, for Respondent.
SHINN, P.J.
In a court trial, Amador Ramos Cisneros was found guilty of possessing heroin and was sentenced to state prison. He appeals from the judgment.
The evidence consisted of the transcript of the preliminary hearing and additional evidence introduced at the trial. At 12:30 p.m. on October 2, 1957, Officers Sanchez, Comacho and Malogovitch had under observation an apartment located at *101 332 West 28th Street in Los Angeles. Officer Sanchez testified that Cisneros left the apartment and started to walk east on 28th Street. Sanchez approached Cisneros and identified himself as a police officer, whereupon appellant ran into the driveway of the building next door to Number 332 and dropped a piece of newspaper on the ground. The newspaper opened and Sanchez observed three balloons, which contained a number of capsules. In the officer's opinion, based upon his familiarity with the method of transporting narcotics in Los Angeles County, the capsules contained a narcotic. They were proved to contain heroin.
Officer Sanchez called out to Officer Comacho, who apprehended appellant and placed him under arrest. When asked by the officers for identification, Cisneros showed them a driver's license giving his address as 332 West 28th Street. Upon being asked why he ran, appellant replied that he had to try and make it. The officers asked him whether the capsules were "all he had" and Cisneros replied in the affirmative; appellant told the officers that the capsules contained two or three grams for his personal use.
The officers went to the apartment with Cisneros. Officer Comacho searched the bedroom closet and found five gelatin capsules containing a white powder inside a coat; the officer also found a small piece of newspaper containing a contraceptive with white powder in it. Appellant told the officers that the coat was his; he also stated that the "stuff" in the closet belonged to him. The powder was proved to consist of heroin. The officers also found a box of empty gelatin capsules in appellant's bathroom.
The contraband dropped by Cisneros outside the apartment was received in evidence without objection. Appellant's counsel initially objected to the introduction in evidence of all the items found in the apartment. At the close of the People's case, he renewed his objection, but limited it to the box of empty gelatin capsules; the objection was overruled by the court.
Cisneros testified in his own behalf that when he passed the officers on the street they called out and he ran; they did not inform him that he was under arrest. He did not drop anything and they did not recover anything from the ground. He told the officers that the containers in the closet were his because they were trying to "complicate" his sister.
The sole assignment of error to be considered is that the *102 court erred in admitting the narcotics in evidence. Cisneros argues, in this connection, that he was arrested without reasonable or probable cause, that the evidence was insufficient to show the commission of a public offense in the presence of the officers, and that the heroin was obtained through an unlawful search and seizure. The argument is without merit.
Cisneros was represented by counsel at the trial and his attorney waived his objection to the admission of the heroin in evidence, preserving an objection only as to the empty capsules. [1] It is established that the admissibility of evidence allegedly obtained by means of an unlawful search and seizure will not be reviewed on appeal in the absence of a proper objection in the trial court. (People v. Hyde, 51 Cal. 2d 152, 157 [331 P.2d 42], and cases cited.) [2] Furthermore, there can be no doubt of the lawfulness of the officers' actions in the present case. When approached by Officer Sanchez, appellant attempted to flee and dropped some balloons which the officer had reason to believe contained a narcotic. The circumstances warranted Sanchez in a reasonable belief that Cisneros was committing a felony. [3] Since the arrest of Cisneros was valid, the officers had the right to make a reasonable search of the premises under his immediate control and to seize evidence related to the offense. (People v. Winston, 46 Cal. 2d 151, 161-163 [293 P.2d 40], and cases cited.) Thus a reasonable search of the apartment was proper and the evidence obtained thereby was not to be excluded. There was no error in receiving the heroin in evidence.
The judgment is affirmed.
Wood (Parker), J., and Vallée, J., concurred.
A petition for a rehearing was denied January 9, 1959. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315840/ | 694 S.E.2d 147 (2010)
BEACH et al.
v.
B.F. SAUL PROPERTY COMPANY.
No. A09A1770.
Court of Appeals of Georgia.
March 30, 2010.
Reconsideration Denied April 14, 2010.
*148 Joe A. Weeks, for Appellants.
Joseph D. Perrotta, for Appellee.
BARNES, Judge.
Martha Beach and Sofia Deglel appeal the grant of a directed verdict to B.F. Saul Property Company[1] ("Saul Property") on their claims arising from an incident in which they were trapped and repeatedly bounced up and down uncontrollably for almost an hour and a half in a malfunctioning elevator in an office building owned by Saul Property. Saul Property did not dispute Beach and Deglel's account of the incident or contend that they were not trapped in the elevator as they asserted.
Although Beach and Deglel filed separate actions against Saul Property, the cases were consolidated for trial. Their complaints alleged that Saul Property negligently maintained the premises in question, and sought damages for the physical and emotional injuries they suffered.
*149 Beach testified at trial that she and Deglel entered the elevator and pushed the button to go down, but the elevator went up until there was a metal-on-metal sound and it dropped down a little. Then, it stopped and began shaking them, bouncing them like a basketball, causing them to hit their heads and backsides, and clanging metal against metal. Beach was vomiting and "puking."
They tried the emergency phone, but nothing worked. Deglel called 911. They were bouncing so fast that when they tried to dial the phone, their fingers would bounce between digits. Beach testified it was like missing one's chair and falling to the floor; it was jarring, like her teeth were being jarred loose. The bouncing happened about five to ten seconds apart. Finally there was a loud crash and the elevator stopped; the doors were pried open and they were able to crawl out. Three or four men were gathered there. The EMTs came and wanted to take Beach to the hospital because her blood pressure was so high, but she did not want to go.
It had been raining on the day of the incident, but it was not stormy. There were no power surges the whole day. "It was an old, dreary, rainy, January, Atlanta, Georgia day." The other elevators seemed to be working.
Beach did not speak to Saul Property's building manager, but did receive an e-mail from her. Beach did not feel up to talking to her.
Deglel testified that during the time they were trapped in the elevator being bounced around, none of the emergency buttons worked. The elevator was going really fast; she was scared because "it was not a normal drop." While they were trapped, she called Saul Property and told the woman who answered that they were stuck in the elevator, but she was disconnected. Deglel called back and spoke to her two or three times telling her, "You have to get us now because we are going to die; the way this elevator is going, we are not going to make it. You have to get somebody in here." It seemed like they were in the elevator "forever." She was throwing up. She thought she was going to die.
Then there was a "boom sound" and the door opened. They crawled out of the elevator. She was concerned about Beach because she was having heart problems. The paramedics were there, but they were mainly treating Beach.
Then, a security man came and Deglel told him that Beach was hurt and she told him "exactly what had happened" and that she was aching everywhere, that they had been throwing up in the elevator, and how long they were stuck there. He said that he was going to report it. Deglel did not speak to anyone from Saul Property until the next week.
Beach's doctor testified that the trauma to her hand required surgery, and Deglel suffered from post-traumatic stress disorder. Beach and Deglel both introduced medical bills showing that they incurred substantial medical expenses.
Beach testified that the elevator malfunctioned every week, and Deglel testified that they were always skipping floors. Beach and Deglel introduced Saul Property's records that supported their testimony. Repeated entries in the records show that the elevators were not leveling, they became stuck on various floors, and people were repeatedly trapped in them. Further, numerous witnesses testified about their problems on the elevators. The elevators were undependable; they always malfunctioned; they were so erratic that the problems were not worth reporting; problems happened with enough regularity that problems also did not warrant reporting; the elevators had minds of their own. One witness testified that on several occasions the elevators would not stop, but would continue to go up and down, and that she reported this to the building's management "more than once."
After Beach and Deglel presented their case, Saul Property moved for a directed verdict contending that they had failed to present any evidence of its prior superior knowledge of any defect that may have caused the elevator to malfunction. The trial court found that evidence produced by Beach and Deglel showed that Saul Property had a *150 program of inspection[2] and repair of the elevator, that Beach and Deglel did not present expert testimony about the cause of the malfunction, that they did not present sufficient evidence to prove that Saul Property had superior knowledge of any problem with the elevators, that they did not present any evidence that the inspections or maintenance Saul Property actually performed were negligent or that it was put on notice that the elevator was defective during any of the inspections. The trial court further found that Saul Property "had inspection and repair procedures in place and used all reasonable precautions to protect its passengers from harm." Accordingly, the court found that "there is no basis for a jury to find that [Saul Property] knew, or had reason to know, that elevator five was defective or presented a risk of harm to [Beach and Deglel]."
The trial court also found that Beach and Deglel had failed to establish that Saul Property had notice of an injury at the time of the incident or otherwise had cause to remove the elevator from service until a proper state authority conducted an inspection. The trial court found, however, that even with the benefit of the spoliation presumption, the result would have been the same. Consequently, the trial court granted Saul Property's motion for a directed verdict.
Beach and Deglel contend the trial court erred by granting a directed verdict to Saul Property because the evidence they presented was sufficient to have their case decided by a jury. We agree, and reverse the grant of the directed verdict.
1. In Georgia,
[a] directed verdict is authorized only when there is no conflict in the evidence on any material issue and the evidence, with all reasonable deductions and construed in favor of the non-moving party, demands a certain verdict. Further, the trial court is not authorized to weigh the evidence or decide issues of fact. Therefore, we cannot affirm this grant of directed verdict if there is any evidence supporting [Beach and Deglel's] claims. Although a directed verdict would have been proper if [Beach and Deglel] simply failed to prove [their] case, we are satisfied the evidence is in conflict, and with all inferences that reasonably might be drawn therefrom, [including the presumption derived from Saul Property's spoliation of evidence,] does not demand a verdict in favor of [Saul Property].... Although there is evidence which could support a verdict in favor of [Saul Property] that is not a sufficient basis for directing a verdict. There must be no evidence of any kind supporting [Beach and Deglel's] position.
(Citation and punctuation omitted.) Moore v. American Suzuki Motor Corp., 203 Ga. App. 189, 189-190(1), 416 S.E.2d 807 (1992).
Building owners owe those who use their elevators the duty of exercising extraordinary care.
"The owner of an office building, equipped with an elevator which is operated for conveying his tenants and their employees and patrons to and from the various floors, is not a common carrier in the sense that he is bound to serve all the public; yet his duty as to protecting passengers in the elevator is the same as that chargeable to carriers of passengers by other means. [Cits.] This duty requires him to exercise extraordinary diligence on behalf of himself and his agents to protect the lives and persons of his passengers. [OCGA § 46-9-132[3]]." Grant v. Allen, 141 Ga. 106, 108(1), 80 S.E. 279 (1913); see generally OCGA § 8-2-101(b).
Gaffney v. EQK Realty Investors, 213 Ga. App. 653, 655, 445 S.E.2d 771 (1994). Even though premises owners owe a duty of "extraordinary diligence," they are not insurers of the safety of elevator passengers. Millar Elevator Svc. Co. v. O'Shields, 222 Ga.App. 456, 458(2), 475 S.E.2d 188 (1996); see Lane v. Montgomery Elevator Co., 225 Ga.App. 523, 524-525(1), 484 S.E.2d 249 (1997).
*151 Although some cases of this court have applied premises liability principles in common carrier cases, in Southeastern Stages v. Stringer, 263 Ga. 641, 437 S.E.2d 315 (1993), our Supreme Court disapproved the
language in the Court of Appeals' opinion applying premises liability law to common carrier cases. The rule applicable in common carrier cases is that whenever a carrier, through its agents or servants, knows or has opportunity to know of a threatened injury, or might have reasonably anticipated the happening of an injury, and fails or neglects to take the proper precautions or to use proper means to prevent or mitigate such injury, the carrier is liable. It is the common carrier's duty to use proper care and vigilance to protect passengers from injuries by such persons that might reasonably have been foreseen and anticipated. Knowledge of the passenger's danger, or of facts and circumstances from which that danger may reasonably be inferred, is necessary to fix the carrier's liability in this class of cases. The carrier is not regarded as an insurer of his passenger's safety against every possible source of danger; but he is bound to use all such reasonable precautions as human judgment and foresight are capable of, to make his passenger's journey safe and comfortable.
(Citation and punctuation omitted.) Id. at 642-643, 437 S.E.2d 315. Therefore, even though some knowledge of the threat to the elevator passenger is required before liability may be imposed, the duties imposed on the elevator owner or operator are much greater because they are "bound to use all such reasonable precautions as human judgment and foresight are capable of, to make his passenger's journey safe."
In MARTA v. Rouse, 279 Ga. 311, 612 S.E.2d 308 (2005), quoting Savannah, etc., R. Co. v. Boyle, 115 Ga. 836, 838-839, 42 S.E. 242 (1902), our Supreme Court further explained the duty of extraordinary care owed by those who owe extraordinary diligence.
[W]hen the circumstances are such that a person in the exercise of that degree of diligence known to the law as extraordinary care would see, or should apprehend, that the passenger is in danger of insult or injury; and when the circumstances were such that the employees ..., in the exercise of the degree of diligence above referred to, should have foreseen that an insult or injury was to be reasonably apprehended, and failed or refused to use the means at hand to protect the passenger therefrom, the [carrier] is liable to the passenger for any damages he sustains as a consequence of such failure or refusal. The general rule would seem to be that whenever a carrier, through its agents or servants, knows or has opportunity to know of a threatened injury, or might have reasonably anticipated the happening of an injury, and fails or neglects to take the proper precautions or to use proper means to prevent or mitigate such injury, the carrier is liable. Knowledge of the passenger's danger, or of facts and circumstances from which that danger may reasonably be inferred, is necessary to fix the carrier's liability in this class of cases. The law now seems to be well settled that the carrier is obliged to protect his passenger from violence and insult, from whatever source arising. He is not regarded as an insurer of his passenger's safety against every possible source of danger; but he is bound to use all such reasonable precautions as human judgment and foresight are capable of, to make his passenger's journey safe and comfortable.
(Citations and punctuation omitted; emphasis supplied.)
Thus, owners or operators of an elevator, like common carriers of passengers, must exercise extraordinary diligence, i.e., "that extreme care and caution which very prudent and thoughtful persons exercise under the same or similar circumstances," OCGA § 51-1-3, to protect the lives and persons of their passengers. The absence of extraordinary diligence, slight negligence, is sufficient to impose liability in these cases. See Millar Elevator Svc. Co. v. O'Shields, supra, 222 Ga.App. at 458(2), 475 S.E.2d 188.
With the testimony from Beach and Deglel and the other witnesses, as well as Saul Property's records, and giving Beach and Deglel the benefit of all reasonable deductions and construing the evidence, including *152 the presumption arising from spoliation, as discussed infra, in their favor as the nonmoving parties, we cannot say that the evidence demanded a verdict in favor of Saul Property. Further, the trial court is not authorized to weigh the evidence or decide issues of fact as it has done in this case. We find that issues for the jury are presented on whether Saul Property knew or had opportunity to know of a threatened injury, and might have reasonably anticipated the happening of an injury, and failed or neglected to take the proper precautions or to use proper means to prevent or mitigate the injuries to Beach and Deglel. Additionally, issues of negligence, diligence, and proximate cause ordinarily are to be decided by a jury, and a court should not decide them except in plain and indisputable cases. Church's Fried Chicken v. Lewis, 150 Ga.App. 154, 156(1)(A), 256 S.E.2d 916 (1979). This is not such a case.
2. Beach and Deglel also allege that the trial court erred by finding that they were not entitled to the presumption of spoliation that arises from Saul Property's violation of OCGA § 8-2-106. In relevant part this Code section states:
(a) The owner or lessee shall[4] report, by telephone, to the enforcement authority on the same day or by noon on the next work day, excluding state holidays and weekends, all elevator ... related accidents involving personal injury or death. The owner or lessee shall also provide a written report of this accident within seven days.
...
(c) Any elevator ... involved in an accident described in subsection (a) or (b) of this Code section shall be removed from service at the time of the accident. The equipment shall not be repaired, altered, or placed back in service until inspected by a certified inspector for the enforcement authority.
(Emphasis supplied.) Saul Property contends, and the trial court found, that it was not required to report the incident or take the elevator out of service until it could be inspected because it was not aware that the women suffered personal injuries. The evidence does not support that finding.
The evidence shows that both Beach and Deglel were injured in the accident and Saul Property's security officer knew of this because Deglel told Saul Property's security officer "exactly" what happened to them, that she was aching all over, and that Beach was hurt. She also told him that they had been vomiting. Further, the EMTs were on the scene treating Beach.
Saul Property's property manager testified that she was called by security and told about the incident. She was also told that paramedics were called to the scene. The security person told her that there had been an incident, they had gotten the women out of the elevator, that he had called the paramedics because he was concerned that one of the women either had a stroke or a heart condition, but that the paramedics had checked them out and they were fine and were going home. He also told her that one of the women was visibly upset. Despite this knowledge the property manager took no timely action to investigate whether Beach or Deglel were injured. She did not call the State, or otherwise comply with OCGA § 8-2-106, even though she had done so when another tenant was trapped in the elevator.
Given this evidence, the trial court erred by finding that Saul Property did not have notice of an injury sufficient to cause it to comply with OCGA § 8-2-106. If nothing else, the jury was required to decide whether OCGA § 8-2-106 was implicated. Countenancing this degree of wilful ignorance will, in effect, eliminate the notice requirement from our law. This error is then compounded by the trial court's reliance on the post-incident inspection by Saul Property's elevator maintenance provider to support Saul Property's defense that the elevator was functioning properly.
Moreover, the trial court's finding that the presumption would have made no difference *153 in the case misperceives the nature of the presumption. The presumption is "that the evidence would have been harmful to the spoliator." (Punctuation and footnote omitted.) American Multi-Cinema v. Walker, 270 Ga.App. 314, 317(2)(b), 605 S.E.2d 850 (2004). See also OCGA § 24-4-22.[5] Proof of spoliation raises a rebuttable presumption that the evidence would have been harmful to Saul Property and thus the evidence favored Beach and Deglel, a fact rendering the grant of a directed verdict[6] inappropriate. Baxley v. Hakiel Indus., 282 Ga. 312, 313, 647 S.E.2d 29 (2007); Lane v. Montgomery Elevator Co., supra, 225 Ga.App. at 525, 484 S.E.2d 249.
As in Baxley v. Hakiel Indus., "a meaningful link" existed between Beach and Deglel's claims against Saul Property and the spoliation because an independent inspection by a certified State inspector could have revealed evidence relevant to the critical issue of the cause of the elevator's malfunction and any relationship between the previous incidents involving the elevator. Baxley v. Hakiel Indus., supra, 282 Ga. at 313-314, 647 S.E.2d 29. Without a timely State inspection, no expert could be sure that the elevator had not been repaired or modified after the incident. Although Saul Property's elevator maintenance provider attributed the cause of the incident to a power surge caused by lightening, a cause disputed by Beach and Deglel, without a timely State inspection, not affected by earlier repair efforts, "plaintiffs would never be able to show what malfunctioned and caused their injuries." Lane v. Montgomery Elevator Co., supra, 225 Ga. App. at 526(1), 484 S.E.2d 249.
Moreover, we do not find that Peterson Properties Corp. v. Finch, 235 Ga.App. 86, 508 S.E.2d 463 (1998), requires a different result because Peterson is distinguishable on its facts. See Thomas v. MARTA, 300 Ga. App. 98, 101(1), 684 S.E.2d 83 (2009). The court in Peterson relied upon the absence of any evidence that reports of problems with the elevator had been received; in this case, however, the evidence shows repeated incidents with the elevators that were known to Saul Property. Accordingly, the spoliation rule as expressed in Lane v. Montgomery Elevator Co. should have applied to this case, and the trial court erred by finding otherwise.
Therefore, the grant of the directed verdict to Saul Property must be reversed.
Judgment reversed.
JOHNSON, P. J., BLACKBURN, P. J., and ELLINGTON, J., concur.
MILLER, C. J., concurs in judgment only.
ANDREWS, P. J., and MIKELL, J., dissent.
ANDREWS, Presiding Judge, dissenting.
Martha Beach and Sofia Deglel alleged they suffered physical injuries and physical and mental pain and suffering when an elevator malfunctioned while they were using it to exit the office building where their employer leased space from the building owner, B.F. Saul Property Company. They sued Saul Property alleging that it negligently failed to protect them as passengers in the elevator by adequately maintaining or repairing the elevator to keep it in safe operating condition. The trial court correctly directed a verdict in favor of Saul Property at the close of the plaintiffs' evidence because Beach and Deglel failed to produce any evidence that Saul Property was negligent.
*154 At the end of the work day, Beach and Deglel left their office on the thirteenth floor of the sixteen story office building and entered the freight elevator to descend and exit the building. There is no evidence as to why they chose to use the freight elevator rather than any of the other four passenger elevators in the building, which Beach said were operating and being used by other office workers. Nothing, however, shows that office workers were not invited to use the freight elevator. There is no evidence that the freight elevator was malfunctioning in any observable manner when the door opened and Beach and Deglel entered. According to Beach and Deglel, after they entered the elevator, they pushed buttons to go down to different levels, the door shut, and, instead of going down, the elevator went up to the fifteenth or sixteenth floor. The elevator made a banging sound, then bounced and shook them in a jarring manner as it made metal clanging noises while continuing to go up and down. Beach and Deglel said they were entrapped in the elevator under these circumstances for an hour and twenty-five minutes until elevator maintenance, building security, or paramedics were able to get them out of the elevator on the ninth floor.
As the owner of the office building, Saul Property had a non-delegable duty to exercise the same extraordinary diligence as a common carrier to protect the passengers invited to use the elevators in its building. Gaffney v. EQK Realty Investors, 213 Ga. App. 653-655, 445 S.E.2d 771 (1994). The record shows that Saul Property entered into a contract providing for ThyssenKrupp Elevator Corporation to maintain and repair the elevators in the building.[7] The fact that Saul Property's duty to protect the passengers in its elevators was nondelegable did not prevent it from contracting with an independent elevator expert, ThyssenKrupp, to perform the maintenance and repairs necessary to keep the elevators reasonably safe; rather the nondelegable duty means that Saul Property cannot avoid its duty by contracting with a third party, and that it remained vicariously liable for any negligence by ThyssenKrupp. Id. In general, the duty to exercise "extraordinary diligence" means the exercise of "extreme care and caution which very prudent and thoughtful persons exercise under the same or similar circumstances," the absence of which is termed "slight negligence." OCGA § 51-1-3. Accordingly, Saul Property could be held liable on the basis of its own slight negligence which proximately caused the injuries to Beach and Deglel, or on the basis of its vicarious liability for slight negligence on the part of ThyssenKrupp which proximately caused the injuries to Beach and Deglel.
In the absence of any negligence, Saul Property was entitled to a directed verdict. "[A] directed verdict is appropriate only if there is no conflict in the evidence as to any material issue and the evidence introduced, construed most favorably to the party opposing the motion, demands a particular verdict. OCGA § 9-11-50(a)." St. Paul Mercury Ins. Co. v. Meeks, 270 Ga. 136, 137, 508 S.E.2d 646 (1998). Under this standard, where the record is devoid of any evidence to support an essential element of the nonmovant's claim, no factual issue exists and a directed verdict is appropriate. Parsells v. Orkin Exterminating Co., 178 Ga.App. 51, 52, 342 S.E.2d 13 (1986). Construing the record in favor of Beach and Deglel, the trial court properly granted Saul Property's motion for a directed verdict because there is no evidence that Saul Property was itself slightly negligent in maintaining and repairing the elevator at issue, and no evidence that Saul Property was vicariously liable for slight negligence by ThyssenKrupp in maintaining and repairing the elevator.
"This Court has long recognized that mechanical devices such as [elevators] get out of working order, and sometimes become dangerous and cause injury without negligence on the part of anyone. This evidence alone without any showing of slight negligence, does not create a triable issue." (Citation and punctuation omitted; emphasis in original.) Sparks v. MARTA, 223 Ga.App. 768, 770, 478 S.E.2d 923 (1996). It follows that *155 the duty to exercise extraordinary diligence to protect passengers on an elevator does not make the elevator owner an insurer of the safety of its passengers, and does not make the owner liable for injury caused by the mechanical malfunction of an elevator in the absence of at least slight negligence. Id. at 768, 478 S.E.2d 923. We held in Sparks, supra, at 769, 478 S.E.2d 923 and in Brady v. Elevator Specialists, 287 Ga.App. 304, 308, 653 S.E.2d 59 (2007), that extraordinary diligence and the absence of slight negligence can be demonstrated by evidence of a regular program of maintenance and repair for the elevator showing that the elevator was operating properly prior to the malfunction which caused the injury. When the evidence shows that the owner has taken reasonable measures to keep the elevator maintained and repaired, and there is no evidence that the owner actually knew about or should have reasonably anticipated the elevator malfunction which caused the injury, there is an absence of even slight negligence and the owner is not liable for injury caused by the mechanical malfunction. Id.; Sparks, 223 Ga.App. at 769-770, 478 S.E.2d 923.
In the present case, the record includes evidence of a program of regular elevator inspection, maintenance and repair carried out by ThyssenKrupp pursuant to its contract with Saul Property. The evidence shows that for the 53-week period up to and including the day of the malfunction at issue, ThyssenKrupp performed scheduled preventative maintenance on all the elevators in the building on 63 occasions, including a regular weekly maintenance schedule plus other scheduled maintenance. The evidence shows unscheduled service calls over this period in which ThyssenKrupp responded to and fixed reported problems on all five of the elevators in the building. There is no evidence of any unresolved problems with any of the elevators in the building leading up to and including the day of the malfunction at issue. The last reported problem relating to the freight elevator used by Beach and Deglel was reported and resolved two months prior to the malfunction at issue. There is no evidence that the amount of elevator malfunctions or repairs for the five elevators in the building exceeded what would be normally expected. In fact, Saul Property's building manager testified that the elevator repair costs at the building were not outside the norm. Two days before the malfunction at issue, ThyssenKrupp inspected and performed eight hours of scheduled maintenance on the elevators in the building. Just hours prior to the malfunction at issue (on the morning of the malfunction), the elevators were inspected by State inspectors. There is no evidence that any problems were discovered with any of the elevators as a result of these inspections. There is no evidence that Saul Property failed to report elevator malfunctions to ThyssenKrupp, and no evidence that any of the regularly scheduled maintenance or other repairs by ThyssenKrupp were not properly performed. Beach testified that she had never previously experienced and was not aware of any elevator in the building malfunctioning by bouncing up and down like the freight elevator in the present incident. Deglel said that, although there were general complaints about the elevators in the building, she was not aware of prior complaints made to the building manager or to elevator maintenance. Although Beach and Deglel testified along with other co-workers that elevators in the building malfunctioned in various ways, there is no evidence that any malfunctions reported were not responded to and fixed. Moreover, the malfunction at issue occurred on the freight elevator, one of five elevators in the building. None of the testimony given by Beach, Deglel, or other co-workers about elevator malfunctions which occurred prior to the malfunction at issue specified that the malfunctions occurred on the freight elevator. In Peterson Properties Corp. v. Finch, 235 Ga.App. 86, 87, 508 S.E.2d 463 (1998), we concluded that general testimony from office workers that elevators malfunctioned in a building with multiple elevators failed to show that prior malfunctions occurred on the elevator at issue, and failed to support a claim that the owner should have anticipated the malfunction at issue.
The record shows that Saul Property (and ThyssenKrupp with which it contracted to maintain and repair the elevator) took reasonable steps to keep the freight elevator in safe operating condition, and that the elevator *156 was operating properly before the mechanical malfunction occurred. Because there was no evidence that Saul Property knew about or should have reasonably anticipated and prevented the malfunction at issue, Saul Property was not negligent in any degree; was not liable for any resulting injury; and was entitled to a directed verdict.
Beach and Deglel claim that Saul Property violated OCGA § 8-2-106, and that this entitled them to an evidentiary presumption precluding the directed verdict. The provisions of OCGA § 8-2-106 require that the owner of an elevator report an elevator accident "involving personal injury" to the appropriate inspection authority by noon on the next work day; that the elevator be removed from service at the time of the accident; and that the elevator not be repaired, altered, or placed back in service until inspected by the appropriate authority. In Lane v. Montgomery Elevator Co., 225 Ga.App. 523, 525, 484 S.E.2d 249 (1997), we found that, if a violation of OCGA § 8-2-106 was proved, "then such conduct would constitute a form of spoliation of evidence, because by working on the elevator, the evidence would have been tampered with, altered or destroyed." If such spoliation occurred, then a rebuttable presumption arises that the altered or destroyed evidence favors the party injured in the elevator accident. Id. It was undisputed that Saul Property did not report the malfunction pursuant to OCGA § 8-2-106, and that ThyssenKrupp (pursuant to its contract with Saul Property) inspected the elevator the day after the malfunction and placed the elevator back in service. Accordingly, Beach and Deglel claim that they were entitled to a rebuttable presumption that evidence of the mechanical cause of the malfunction was destroyed or altered by ThyssenKrupp's inspection; that the evidence was favorable to them; and that this evidentiary presumption precluded the grant of a directed verdict in favor of Saul Property.
This claim fails for two reasons. First, the trial court rejected the spoliation claim by finding that Saul Property did not violate the reporting provisions of OCGA § 8-2-106 because the evidence did not show that Saul Property had notice that the elevator accident involved personal injury to Beach or Deglel. We review a trial court's denial of a motion for spoliation sanctions for an abuse of discretion. R.A. Siegel Co. v. Bowen, 246 Ga.App. 177, 180-182, 539 S.E.2d 873 (2000). In considering a motion for spoliation sanctions, the trial court makes necessary factual findings. Bouve & Mohr, LLC v. Banks, 274 Ga.App. 758, 762, 618 S.E.2d 650 (2005). We accept the trial court's factual findings on this issue where there is any evidence to support them. See Addington v. Anneewakee, Inc., 204 Ga.App. 521, 522, 420 S.E.2d 60 (1992) (trial court is trier of fact in discovery disputes, and court's factual finding will not be reversed if there is any evidence to support it).
Evidence showed that Saul Property's building manager was notified by building security that Beach and Deglel had been checked out by paramedics after the entrapment in the elevator and that there was "no problem" and "they were fine" and they were going home. Beach testified that she did not report any injury to the paramedics. She testified that, after she got out of the elevator and was checked out by paramedics, co-workers took her back to her office in the building where "they got wet towels and then calmed us down," and she then drove home. Although a building security officer thought Beach may have had a stroke or heart condition, there was no evidence to confirm this, and Beach denied it. Beach first sought medical attention five or six days after the incident. Deglel testified that, after getting out of the elevator, she was seen by the paramedics but received no medical treatment. Deglel was confronted on cross-examination with testimony she gave in a prior deposition in which she admitted that paramedics asked her if she was okay and she responded "yeah." Cross-examination also showed that, when Deglel was asked in the prior deposition if she reported any injuries to the paramedics, she responded, "I don't remember." After seeing the paramedics, Deglel testified that she went with Beach to their office where co-workers calmed them down with wet towels. She said her fiancé (now husband) then picked her up from work, they drove to a Taco Bell restaurant where they stayed for about an hour and *157 then went home. Deglel testified that she sought no medical treatment until more than a month after the incident. Because there was evidence in the record to support the trial court's factual finding that Saul Property had no notice that the elevator accident involved "personal injury" to Beach or Deglel, and that there was no violation of the reporting provisions of OCGA § 8-2-106, this Court is required to uphold it on appeal.
Second, even if Saul Property violated the reporting provisions of OCGA § 8-2-106, and Beach and Deglel were entitled to a rebuttable presumption that ThyssenKrupp's inspection destroyed or altered evidence showing the mechanical cause of the elevator malfunction, no presumed malfunction could have been favorable evidence precluding the grant of the directed verdict in favor of Saul Property. The directed verdict was properly granted on the basis that there was no evidence that Saul Property was directly or vicariously liable for any negligence in the maintenance or repair of the elevator, and the mere fact that an elevator mechanically malfunctions is not evidence of negligence. Because on the present record Saul Property was entitled to a directed verdict regardless of the mechanical cause of the malfunction, the spoliation issue was irrelevant. Peterson Properties Corp., 235 Ga.App. at 87-88, 508 S.E.2d 463.
I respectfully dissent.
I am authorized to state that Judge MIKELL joins in this dissent.
NOTES
[1] At one time ThyssenKrupp Elevator Company was a defendant, but it was dismissed from the case upon the motion of Beach and Deglel.
[2] The evidence showed that the elevator was inspected by State inspectors on the morning of the incident.
[3] "A carrier of passengers must exercise extraordinary diligence to protect the lives and persons of his passengers but is not liable for injuries to them after having used such diligence."
[4] "Shall" is generally construed as a mandatory directive. State v. Henderson, 263 Ga. 508, 510, 436 S.E.2d 209 (1993).
[5] a party has evidence in his power and within his reach by which he may repel a claim or charge against him but omits to produce it, or if he has more certain and satisfactory evidence in his power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against him is well founded; but this presumption may be rebutted.
[6] Although Baxley v. Hakiel Indus. and Lane v. Montgomery Elevator Co. are summary judgment cases, that principle applies equally to motions for directed verdict because the standards for both motions are the same. See OCGA §§ 9-11-50(a) and 9-11-56(c), and Svc. Merchandise v. Jackson, 221 Ga.App. 897, 898(1), 473 S.E.2d 209 (1996) ("Under OCGA §§ 9-11-56(c) and 9-11-50(a), summary judgments and directed verdicts are appropriate only when the court, viewing all the facts and reasonable inferences from those facts, in a light most favorable to the nonmoving party, concludes that there are no issues to be tried.").
[7] Beach and Deglel initially sued both Saul Property and ThyssenKrupp, but they subsequently obtained an order dismissing ThyssenKrupp from the case without prejudice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260806/ | 123 Cal. Rptr. 2d 606 (2002)
101 Cal. App. 4th 61
Philip KAHN et al., Plaintiffs and Respondents,
v.
Benny CHETCUTI, Jr., Defendant and Appellant.
No. A096670.
Court of Appeal, First District, Division Five.
August 12, 2002.
Review Denied October 30, 2002.
*607 Robert A. Nebrig, Carr, McClellan, Ingersoll, Thompson & Horn, Burlingame, for plaintiffs and respondents.
Gerald W. Filice, Filice Law Offices, Sacramento, for defendant and appellant.
Certified for Partial Publication.[*]
JONES, P.J.
In this dispute arising from the sale of a home to respondents, seller Benny Chetcuti, Jr., appeals from a judgment confirming an award in a contractual arbitration and denying his petition to correct the award. He contends (1) the arbitrator exceeded his powers, and (2) the arbitrator erred procedurally when he awarded attorney fees and costs to respondents. In the published portion of the opinion, we interpret the parties' agreement to authorize the arbitrator to determine whether the prevailing party's act of filing a complaint before an obligatory mediation barred the award of attorney fees to that party. That determination, we conclude, is not subject to judicial review. We reject the second argument in the unpublished portion of our opinion and affirm the trial court's judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
In March 1995, appellant purchased a residence located on Edgehill Drive in Burlingame as a business investment. Appellant renovated the property and then listed it for sale. Respondents Philip and Mara Kahn purchased the residence from appellant in June 1996 for $455,000. The purchase agreement contained clauses stating that any disputes arising out of the contract must be mediated, and if that was unsuccessful, submitted to binding arbitration. The agreement also provided that the prevailing party in any arbitration or other legal proceedings was entitled to reasonable attorney fees, with a limitation on the right to fees where an arbitrator determined that a party otherwise entitled to fees resisted mediation.
In April 1998, Lori Lutzker, an attorney representing respondents, sent a letter to appellant alleging he had failed to disclose certain defects that were present in the residence. Acknowledging the alternative dispute resolution clauses in the purchase agreement, Lutzker demanded that appellant submit the dispute to mediation.
Gerald Filice, an attorney, replied to Lutzker's letter on appellant's behalf. He denied that appellant had made any misrepresentations, but he agreed to "undertake" mediation. He urged Lutzker to submit the names of potential mediators.
In the weeks that followed, Lutzker and Filice exchanged a series of letters trying to select an appropriate mediator. That process was still not complete by late June 1998, and Lutzker became concerned that the statute of limitations for certain claims respondents had against appellant might pass. Hoping to "avoid [an] unnecessary legal action" Lutzker drafted an agreement and sent it to Filice, asking him to waive "all applicable statutes of limitations during the time when we are attempting to resolve the dispute through mediation and arbitration."
Filice refused to sign the agreement. Therefore, on July 2, 1998, Lutzker filed a complaint against appellant on respondents' behalf. Respondents did not intend to proceed with the litigation. They filed the complaint solely to preserve their legal rights. In fact, Lutzker prepared a stipulation proposing to stay the action pending the conclusion of the arbitration.
*608 The mediation was conducted in September 1998. It was unsuccessful. The parties then proceeded to arbitration.
An arbitration hearing was conducted before an attorney selected by the parties, William L. Nagle, on three days in January and February 2001. During the arbitration, both parties agreed that the issue of attorney fees would be litigated after the arbitrator had issued his initial award.
On February 15, 2001, the arbitrator issued his award and memorandum of decision. He ruled respondents were entitled to $100,000 in damages, but that those damages were subject to a $50,000 setoff based on sums respondents had received from their broker and real estate agent. Thus respondents were awarded $50,000 from appellant. The arbitrator also ruled respondents were the prevailing parties and that they were entitled to their attorney fees and costs under the terms of the arbitration agreement.
On April 3, 2001, respondents filed a memorandum with the arbitrator setting forth the fees and costs they had incurred. Appellant then filed what he described as a motion to strike and to tax costs. He raised two issues that are relevant here. First, appellant argued the arbitrator exceeded his authority when he awarded attorney fees and costs to respondents because respondents had filed a complaint before the mediation hearing. According to appellant, that act (filing the complaint) precluded an award of fees and costs under the terms of the purchase agreement. Second, appellant argued the arbitrator lacked jurisdiction to award fees and costs because respondents' application for those fees and costs was a "correction" to the arbitration award that was not "timely" under the California arbitration statutes. (See Code Civ. Proc.,[1] § 1280 et seq.)
The arbitrator held a hearing on the fee request on May 14, 2001. On May 31, 2001, the arbitrator issued his written ruling awarding respondents $83,289.75 in attorney fees, plus $13,638.95 in costs.
Appellant then filed a petition in the San Mateo Superior Court seeking to correct the arbitration award. As is relevant here, he raised the same two issues that he raised before the arbitrator in his motion to strike and to tax costs.
On June 18, 2001, respondents filed a petition to confirm the arbitration award.
Both petitions were heard by the court at a hearing on July 17, 2001. The court denied appellant's motion to correct the award and granted respondents' request to confirm. In addition, the court awarded respondents an additional $3,690 in attorney fees. This appeal followed.
II. DISCUSSION
A. Did the Arbitrator Exceed his Power?
Appellant contends the trial court should have granted his motion to correct the arbitration award because the arbitrator exceeded his powers when it awarded attorney fees and costs to respondents. Whether the arbitrator exceeded his powers presents a question of law that we decide de novo on appeal. (Creative Plastering, Inc. v. Hedley Builders, Inc. (1993) 19 Cal. App. 4th 1662, 1666, 24 Cal. Rptr. 2d 216.)
The pivotal question a court must answer when deciding whether an arbitrator exceeded his powers is whether the arbitrator had the authority to rule on a *609 particular issue under the terms of the controlling arbitration agreement. (Creative Plastering, Inc. v. Hedley Builders, Inc., supra, 19 Cal.App.4th at p. 1666, 24 Cal. Rptr. 2d 216; Southern Cal. Rapid Transit Dist. v. United Transportation Union (1992) 5 Cal. App. 4th 416, 422, 6 Cal. Rptr. 2d 804; cf. DiRussa v. Dean Witter Reynolds, Inc. (2d Cir.1997) 121 F.3d 818, 824.) Here, the purchase agreement contains a clause that specifically authorized an award of attorney fees and costs. It states, "Should any legal or equitable action, arbitration or other proceeding between Buyer and Seller arise out of this agreement, the prevailing party shall be awarded reasonable attorney's fees and court or arbitration costs in addition to any other judgment or award." Clearly the arbitrator had the power to award fees and costs.
Appellant contends the arbitrator exceeded his powers because he awarded fees and costs to respondents even though such an award was prohibited under the facts of this case. Appellant bases his argument on the mediation clause contained in the purchase agreement, which states in part, "Buyer [and] Seller ... agree to and shall mediate any dispute or claim between them arising out of this contract.... The mediation shall be held prior to any court action or arbitration.... Should the prevailing party attempt an arbitration or a court action before attempting [to] mediate, THE PREVAILING PARTY SHALL NOT BE ENTITLED TO ATTORNEY FEES THAT MIGHT OTHERWISE BE AVAILABLE TO THEM IN A COURT ACTION OR ARBITRATION...." (Italics in original.) Appellant contends respondents were not entitled to fees and costs under this language because they filed a complaint against him before the mediation hearing and thus they "attempted] ... a court action before attempting [to] mediate." Under these circumstances, appellant contends, the arbitrator exceeded his powers when he made such an award.
We must reject appellant's argument. The arbitration clause in the purchase agreement states that the arbitrator was authorized to decide "a]ny dispute or claim in law or equity arising out of this contract or any resulting transaction...." One dispute or claim the arbitrator was authorized to decide under this broad language was whether respondents had in fact "attempted] ... a court action before attempting [to] mediate." By rejecting appellant's motion to strike and to tax costs, the arbitrator impliedly concluded respondents had not "attempted] ... a court action before attempting [to] mediate." (Cf. Rosenquist v. Haralambides (1987) 192 Cal. App. 3d 62, 67, 237 Cal. Rptr. 260 ["courts must indulge every reasonable intendment to give effect to arbitration proceedings"]; Griffith Co. v. San Diego Col. for Women (1955) 45 Cal. 2d 501, 516, 289 P.2d 476, [same]; see also Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal. 4th 362, 381, 36 Cal. Rptr. 2d 581, 885 P.2d 994 [courts must defer to an arbitrator's implied findings].) The arbitrator did not "exceed his powers" when he decided an issue he was clearly authorized to decide.
Appellant seems to contend that because respondents filed a complaint against him before the mediation hearing the arbitrator had no alternative but to conclude that respondents had "attempted] ... a court action before attempting [to] mediate." However "the merits of a controversy that has been submitted to arbitration are not subject to judicial review. This means that we may not review the validity of the arbitrator's reasoning, the sufficiency of the evidence *610 supporting the award, or any errors of fact or law that may be included in the award." (Harris v. Sandro (2002) 96 Cal.App.4th 1310,1313,117 Cal.Rptr.2d 910.)
Our deference to the arbitrator's implied ruling should not be interpreted as meaning that we somehow disagree with his decision. Absent a restriction to the contrary, "`arbitrators ... may base their decision upon broad principles of justice and equity, and in doing so may expressly or impliedly reject a claim that a party might successfully have asserted in a judicial action.'" (Moncharsh v. Heily & Blase (1992) 3 Cal. 4th 1, 10-11, 10 Cal. Rptr. 2d 183, 832 P.2d 899, quoting Sapp v. Barenfeld (1949) 34 Cal. 2d 515, 523, 212 P.2d 233.) "`[Arbitrators are not bound to award on principles of dry law, but may decide on principles of equity and good conscience, and may make their award ex aequo et bono [according to what is just and good].'" (Id. at p. 11, 10 Cal. Rptr. 2d 183, 832 P.2d 899, quoting Muldrow v. Norris (1852) 2 Cal. 74, 77.)
Here, the evidence shows respondents filed a complaint against appellant prior to the mediation hearing. However, the evidence also shows respondents only did so because the statute of limitations for some of their claims was about to pass, and appellant's counsel refused to sign an agreement waiving the statute of limitations. Furthermore, the evidence shows respondents did not intend to pursue the suit, and that they filed it only to preserve their legal rights. The arbitrator reviewing this evidence could reasonably conclude respondents did not, in any real sense, "attempt ... a court action before attempting [to] mediate."
Appellant's final argument on this issue is that the arbitrator exceeded his power as that concept is interpreted in DiMarco v. Chaney (1995) 31 Cal. App. 4th 1809, 37 Cal. Rptr. 2d 558. We disagree. In DiMarco, the parties to a real estate transaction submitted their dispute to arbitration under a contract that said the prevailing party "shall be entitled to reasonable attorney's fees and costs." (Id. at p. 1812, fn. 1, 37 Cal. Rptr. 2d 558.) The arbitrator ruled the seller was the prevailing party but declined to award her fees and costs. The appellate court ruled the arbitrator had exceeded his powers under those circumstances because "having made a finding [the seller] was the prevailing party, the arbitrator was compelled by the terms of the agreement to award her reasonable attorney fees and costs." (Id. at p. 1815, 37 Cal. Rptr. 2d 558.)[2]
DiMarco is distinguishable because here, the arbitrator did not find that respondents had "attempt[ed] ... a court action before attempting [to] mediate." Indeed precisely the opposite is true. By rejecting appellant's motion to strike and tax costs, the arbitrator impliedly made an opposite finding. DiMarco is inapposite.
We conclude the arbitrator did not exceed his powers when he awarded respondents their attorney fees and costs.[3]
B. Did the Arbitrator Err Procedurally when he Awarded Attorney Fees and Costs?[**]
III. DISPOSITION
The judgment confirming the award and denying appellant's petition to correct the award is affirmed.
We concur: STEVENS and SIMONS, JJ.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part II.B.
[1] Unless otherwise indicated, all further section references will be to the Code of Civil Procedure.
[2] Our Supreme Court recently took note of the decision in DiMarco but declined to decide whether its reasoning was correct. (See Moshonov v. Walsh (2000) 22 Cal. 4th 771, 779, 94 Cal. Rptr. 2d 597, 996 P.2d 699.) We too need not state an opinion on the issue because the case is distinguishable.
[3] Having reached this conclusion, we need not reach respondents' argument that any limitation on the right of the prevailing party to recover attorney fees would be unenforceable.
[**] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2211210/ | 11 Mich. App. 693 (1967)
162 N.W.2d 164
ENVIRONMENTAL DEFENSE FUND, INC.
v.
DIRECTOR OF AGRICULTURE DEPARTMENT.
Docket No. 4,594.
Michigan Court of Appeals.
Decided November 14, 1967.
Opinion filed June 24, 1968.
Leave to appeal denied November 22, 1967.
*694 Yannacone & Yannacone and Fox, Thompson & Morris, for plaintiff.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Francis J. Carrier and Maurice M. Moule, Assistant Attorneys General, for defendants.
Leave to appeal denied November 22, 1967. See 379 Mich. 789.
PER CURIAM:
The department of agriculture determined in its judgment that the use of Dieldrin in the eradication of the Japanese beetle, a declared nuisance, was necessary to protect the agricultural crops in the Berrien county area. Under the appropriate statute[*] and in collaboration with the United States department of agriculture the Dieldrin plan was drafted and the required notices were served.
The evidence produced before the Court was to the effect that the department of agriculture had made its determination after considering the need and also the effect of such use of Dieldrin. Such a decision is one of discretion left to the wisdom *695 and judgment of the Michigan State department of agriculture.
We find no abuse of discretion and, therefore, the writ of mandamus is denied and the temporary restraining order heretofore issued is dissolved.
BURNS, P.J., and FITZGERALD and HOLBROOK, JJ., concurred.
NOTES
[*] CL 1948, § 286.201 et seq., as amended (Stat Ann 1967 Rev and Stat Ann 1968 Cum Supp § 12.201 et seq.). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315651/ | 270 S.E.2d 768 (1980)
In re W. Bernard SMITH.
No. 13493.
Supreme Court of Appeals of West Virginia.
October 7, 1980.
Opinion Withdrawn November 25, 1980.
*769 John O. Kizer, Robert H. Davis, Jr., Charleston, for Legal Ethics Committee.
Beckett, Burford & James and R. H. Burford, Huntington, for Smith.
NEELY, Chief Justice:
This is a petition by a disbarred attorney for reinstatement of his license to practice law, pursuant to Art. VI, § 35 of the By-Laws, West Virginia State Bar.[1] The license of the petitioner, W. Bernard Smith, was annulled by this Court on 30 July 1974, In re Smith, W.Va., 206 S.E.2d 920 (1974), after his conviction on 13 December 1971 in the United States District Court for the Southern District of West Virginia for conspiring to cause fraudulent and illegal votes to be cast in a primary election in Logan County contrary to the provisions of Title 18 U.S.C. § 241. This conviction was appealed to the United States Court of Appeals for the Fourth Circuit where it was affirmed and to the United States Supreme Court where it was also affirmed, Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974) with Justices Douglas and Brennan dissenting.
On 15 July 1974 the petitioner was incarcerated in the Federal Penitentiary at Lewisburg, Pennsylvania, to be returned to the Court after a 90 day period of study with a report and recommendation under the provisions of Title 18, U.S.C. § 4208(b). When he was returned to the Court the original maximum sentence was set aside and he was fined $5,000 and sentenced to 179 days of incarceration with credit for time previously served, and five years probation. One condition of his probation was public service *770 without compensation, and in fulfillment of that requirement, the petitioner moved to Fairmont, West Virginia where he participated in the Senior Aides program for a year.
On 14 September 1979, more than five years after the annulment of petitioner's license, his petition for reinstatement was filed and on 22 April 1980, a three-man subcommittee of the Committee on Legal Ethics of the West Virginia State Bar held an evidentiary hearing on the petition and on 1 July 1980 recommended that the petition for reinstatement be denied. Petitioner then filed his request for our review and reinstatement.
Recently this Court spoke to the entire issue of reinstatement in the case of In re Bonn Brown, W.Va., 262 S.E.2d 444 (1980) where we cited with approval In re Hiss, 368 Mass. 447, 333 N.E.2d 429 (1975) where the Massachusetts Court set forth the broad categories of considerations to which a court should look before reinstating an attorney. We quoted the Massachusetts Court as follows:
In judging whether a petitioner satisfies these standards and has demonstrated the requisite rehabilitation since disbarment, it is necessary to look to (1) the nature of the original offense for which the petitioner was disbarred, (2) the petitioner's character, maturity, and experience at the time of his disbarment, (3) the petitioner's occupations and conduct in the time since his disbarment, (4) the time elapsed since the disbarment, and (5) the petitioner's present competence in legal skills. (Citations omitted). W.Va., 262 S.E.2d 444 at 446 (1980).
The Committee on Legal Ethics essentially takes the position that the petitioner was convicted of a crime which in and of itself justifies denial of reinstatement to practice law. While the Committee does not argue that the petitioner's license should never be reinstated, they object to reinstatement at this time because of lack of affirmative evidence of rehabilitation. The Committee argues that the petitioner's offense was reprehensible and that the petitioner has not engaged in any affirmative acts which could be called rehabilitation since his disbarment, although the Committee points to no blemishes upon the petitioner's record since his conviction in 1971.
The Committee notes that since his release from confinement and required public service work in the Senior Aides Program in Fairmont, the petitioner has not participated in any civic, community, or religious undertakings which, according to the Committee's argument, would demonstrate rehabilitation. Furthermore, the Committee points to the fact that the petitioner, while earning occasional consulting fees, has primarily relied for his living upon his private resources. The Committee implies that failure to have steady employment at a regular salary in some way casts aspersions upon the character of the petitioner, although they readily admit that the petitioner's private resources were sufficient to sustain him without reliance upon anyone else.
I
The Committee has long been in favor of permanent disbarment of attorneys. However, this Court has rejected the concept of permanent disbarment at least since the case of In re Daniel, 153 W.Va. 839, 173 S.E.2d 153 (1970) where it was decided before the adoption of the present rule, Art. VI, Sec. 35, that annulment of a license to practice law does not prohibit an application by a disbarred attorney for a new license as if the former license had never been issued.
In 1971, after our decision in Daniels, supra, the State Bar proposed amendments to its By-Laws including a provision for permanent annulment of the license of an attorney upon disbarment. See West Virginia State Bar News, Dec. 1971, at 5. By order entered in the Sup. Ct. Order Book No. 71, at 500, on 7 December 1971 this Court approved all of the suggested amendments except the one providing for permanent annulment of a license to practice. A year later, on 12 December 1972, acting on a petition by the State Bar which resulted from action taken by the Bar at its regular *771 annual meeting held 12 October 1972, this Court entered an order approving an amendment to the By-Laws adopting the present rule providing for petition for reinstatement after the expiration of five years from the date of disbarment.
It should be obvious from a history of Art. VI, § 35 that the Court in recent years has considered it disproportionate punishment to deny an attorney the right to practice law indefinitely. As this Court said in the case of State ex rel. Harris v. Calendine, W.Va., 233 S.E.2d 318, at 329-30 (1977) in a different but related context:
At the outset this Court acknowledges that the cruel and unusual punishment standard cannot easily be defined and certainly is not fixed; consequently, we feel the standard tends to broaden as society becomes more enlightened and humane....
A good starting point for applying the cruel and unusual punishment standard... is the concept of disproportionality. This concept is explicitly recognized in W.Va.Const., art. III, § 5, "Penalties shall be proportioned to the character and degree of the offence" and is implicit in the Eighth Amendment to the United States Constitution, which originates in the same tradition as our own constitutional provision.
While the Bar maintains that the permanent annulment of the license of an attorney who is guilty of a crime of moral turpitude is primarily for the purpose of protecting society from unscrupulous lawyers, nonetheless, in cases such as the one before us there is little justification for denying reinstatement other than to heap additional punishment upon the offending attorney. In general this Court has rejected vengeance as a civilized instinct. See State ex rel. D. D. H. v. Dostert, W.Va., 269 S.E.2d 401 (1980).
The five year rule is consistent with other decisions of this Court regarding restoration of rights after an individual has been convicted of a crime and served his sentence. The petitioner for example is not disqualified as a voter, Osborne v. Kanawha County Court, 68 W.Va. 189, 69 S.E. 470 (1910); he is not disqualified from holding public office, Webb v. County Court, 113 W.Va. 474, 168 S.E. 760 (1933); nor is he prohibited from seeking and holding a seat in the West Virginia Legislature, Isaacs v. Ballot Comrs., 122 W.Va. 703, 12 S.E.2d 510 (1940).
II
The petitioner was born in Logan, West Virginia in 1930. He graduated from Marshall University in 1952 and the Washington and Lee School of Law in 1956 where he was a member of the Law Review. He was admitted to practice in 1956 and immediately went to work for the State Tax Department where he served for six months and then became an Assistant Attorney General for the State of West Virginia until 1961. At that time he was appointed State Director of the Department of Public Assistance, commonly called the Department of Welfare. He served as Commissioner of Welfare from 1961 to 1965 and from that time until his disbarment he practiced law in Logan County, West Virginia, during which time he served as Assistant Prosecuting Attorney for approximately one year. Petitioner was elected to the West Virginia State Senate in 1968 and served in that capacity until 1972 when he was removed as the result of the conviction in Federal Court.
While petitioner's case was on appeal to the United States Court of Appeals for the Fourth Circuit and then to the United States Supreme Court he continued to practice law in Logan County. Although his conviction was widely publicized and generally known, he had a substantial practice at the time of his disbarment. When his disbarment became imminent he met with the Judge of the Circuit Court of Logan County and went over a list of all the cases which he had pending and made arrangements with all of his clients for substitute counsel in all cases in which he was involved and arranged to pay his secretary in his law office to keep his office open for thirty days after his incarceration to assist his clients *772 and substitute counsel in making an orderly transition.
The Honorable Naaman J. Aldredge, Chief Judge of the Seventh Judicial Circuit, testified that petitioner was "well recognized in the local community as being a tough, aggressive, competent lawyer, especially in the criminal field." When asked whether he felt the administration of justice in Logan County would suffer if petitioner's request for readmission were granted, he stated: "It's my opinion that Bernard would be a useful member of the legal community in Logan County." Robert M. Harvey, former law clerk for Justices Frank Haymond and Charles Haden, currently practicing law in Dunbar, West Virginia, testified that although he was not a friend of petitioner, he had observed his appearances, briefs and arguments before this Court and had discussed matters of legal theory with him on occasion. When asked to describe his ability as an attorney before the Supreme Court of Appeals, Mr. Harvey stated: "I would say-on a scale of 1 through 10, I would say he would be a 10 class lawyer. I'd say he was in the top practitioners before the Court as far as his preparation of his pleadings and his research and I think his presentation."
While there is testimony in the record that the petitioner is generally of low moral character by virtue of his previous political activities, the record is absolutely devoid of any testimony whatsoever that petitioner ever inadequately represented a client or failed to perform not only as a competent lawyer, but indeed as one of the superior lawyers in West Virginia. To the extent that there is testimony in the record that the petitioner is in general a bad human being, there is equally persuasive testimony that the petitioner's moral character is quite acceptable. This Court has recognized in Committee on Legal Ethics v. Pence, W.Va., 216 S.E.2d 236 (1975) that little weight can be attributed to affidavits attesting to good moral character and integrity; alternatively, very little weight can be attributed to general assertions of bad moral character.
The record before us presents no specific facts which would lead a reasonable person to conclude that the petitioner is of bad character. While a number of witnesses testified that they would not trust the petitioner, they alluded to no underlying circumstances which prompted their conclusions. Certainly the general assertions of bad character were more than off-set by general assertions of good character from practicing lawyers and judges. The Court recognizes the inherently obvious, namely that any successful professional person will have both friends and enemies no matter how heinous his crime, nor exemplary his life; accordingly, in order for allegations of bad character to have any weight they must be tied to specific instances of reprehensible conduct which would lead an impartial observer to conclude that a petitioner is of bad character.
Where, as in the case before us, the petitioner shows a record of honorable behavior since disbarment (and the correction of or recovery from any identifiable vices or illnesses where applicable, as discussed below) the petitioner's burden has been met and the burden is then upon the Committee on Legal Ethics, if they wish to contest reinstatement, to present concrete facts and circumstances which would lead to an inference of bad character or lack of fitness to practice law. The petitioner before us is a highly competent, yet very controversial former member of the Bar. After a diligent search of the record the Court can find no evidence that the petitioner will be dangerous to the public if he is returned to the practice of law. Since there is no evidence in the record that the petitioner was anything other than a competent practicing lawyer when a member of the Bar, we can only infer that the Ethics Committee's objection to reinstatement was pro forma.
III
When the Court cited with approval the language of In re Hiss, supra, in our case of In re Bonn Brown, supra, which mentioned "requisite rehabilitation since disbarment" the Court did not intend to *773 impose an impossible standard which requires constant acts of affirmative penance or contrition. In a case like the one before us the concept of rehabilitation merely implies that the petitioner lead a correct and upright life without blemish from the time of his disbarment until application for reinstatement. The concept of rehabilitation, however, can have a much more significant and affirmative meaning in situations where a lawyer has been disbarred for reasons emanating from identifiable vices or even illnesses. For example, if a compulsive gambler were disbarred for peculation of his client's funds, then it would be necessary for the lawyer to demonstrate that he is no longer a gambler and that he has taken affirmative action to cure himself of the vice of gambling. Similarly if a lawyer were disbarred for gross negligence which resulted from chronic alcoholism, it would then be necessary to show that the lawyer has abjured liquor and at the time of the petition has a reasonable history of abstinence. In the case before us, however, the petitioner's disbarment was not directly related to the practice of law; the underlying offense of stealing an election was attributable to no vice or illness other than a general willingness to profit through illegal means.
The underlying theory of our criminal law is that some people are tempted to profit by illegal means and the penal system's punishment is designed to dissuade by threat in the first instance and to reform by actual infliction in the second instance. Whether any person (previously honest or dishonest) at any given time is entirely rehabilitated from the general vice of willingness to profit from illegal acts is always a speculative question at best. Consequently the system is constructed on the only workable theory, namely a presumption that once a person has suffered the legal penalty for a specific transgression he is rehabilitated from the general vice of dishonesty. The theory of the recidivist statute, in fact, places a gloss of realism upon this abstract premise. After several failures of the system to cure dishonesty, the presumption of rehabilitation evaporates and society proceeds upon the contrary presumption and incarcerates an offender for society's continued protection.
IV
If we now look to the five objective criteria set forth in Hiss and Brown, supra for determining whether a disbarred attorney should be reinstated, we find that the petitioner is entitled to reinstatement. The nature of the original offense for which the petitioner was disbarred was reprehensible, but it was completely unrelated to the petitioner's law practice or activities as an officer of the Court. The petitioner's character, maturity, and experience at the time of his disbarment certainly do not militate in favor of petitioner's reinstatement, but at the same time, they do not militate against reinstatement. The criteria of character, maturity, and experience are basically designed to permit forgiveness of a young man who has been stupid in his youth and can demonstrate that over the course of years he has become wiser and stronger. That may very well have been the case in In re Hiss, supra. These criteria then can only be interpreted positively in those cases where they are applicable and should be ignored in a case like this where there has been no significant change in maturity and experience since the time of disbarment.
The petitioner's occupations and conduct in the time since his disbarment have been entirely honorable. While the Ethics Committee point to the petitioner's lack of regular salaried employment since his disbarment, we find his occupation since disbarment acceptable in light of his participation in his own business, his regular consulting services, and the fact that his private assets were sufficient to provide for his family. The time elapsed since disbarment is over one year longer than that required by our Rules. Finally, there is absolutely no evidence in the record to indicate that petitioner's present competence in legal skills is anything less than superior. The record demonstrates conclusively that during the petitioner's period of disbarment he has actively read in the law and kept himself *774 abreast of all current developments, and that he maintains a keen interest in developing case law and the legal literature in general.
V
The rule permitting reinstatement after five years is a rule of compassion. As this Court said in Webb v. County Court, 113 W.Va. 474, 168 S.E. 760, 761 (1933):
It is the anxious desire of the state that those of her citizens who have transgressed her laws, suffered convictions, and paid the penalty of the law, shall profit from their unfortunate experience and thereafter make of themselves good citizens by leading lives of uprightness and usefulness. (Cited with approval Isaacs v. Ballot Comrs., supra)
Absent a showing by the Committee on Legal Ethics that reinstatement will endanger the public, an attorney's license to practice will be reinstated after five years of good behavior after disbarment.
Accordingly, for the reasons assigned above the petitioner's application for reinstatement to the West Virginia State Bar as a licensed, practicing attorney is granted.
Application for reinstatement granted.
MILLER, Justice, dissenting:
I dissent from the majority opinion as I believe it has completely destroyed any rational basis for determining when a disbarred attorney should be reinstated to the practice of law. All courts uniformly recognize that the disbarment of an attorney is based on the fact that he has committed an extremely serious offense. Moreover, it is uniformly held that in order for a disbarred attorney to regain his license he bears the heavy burden of showing that he has rehabilitated himself. We made these two points plain in our recent case of In re Brown, W.Va., 262 S.E.2d 444, 445-46 (1980):
"[I]t is incontestable that a disbarment results from the most serious ethical violations, and the courts have traditionally cast a heavy burden on the petitioning attorney to demonstrate his fitness for reinstatement. In re Reed, 341 So.2d 774 (Fla.1977); Lester v. Kentucky Bar Association, 532 S.W.2d 435 (Ky.1976); In re Braverman, 271 Md. 196, 316 A.2d 246 (1974); In re Hiss, 368 Mass. 447, 333 N.E.2d 429 (1975); 7 Am.Jur.2d Attorney at Law § 72 (1963)." (Footnote omitted)
See also Annot. 70 A.L.R.2d 268, 297 (1960).
These two points are entirely ignored by the majority. Without citation to a single other jurisdiction, it substitutes as a standard a new rule that an attorney need only wait out the five year period by "behaving honorably" and the burden is then thrust upon the Ethics Committee "to present facts and circumstances which would lead to an inference of bad character or lack of fitness to practice law." Syllabus Point 3, in part.
The reason for this new rule is obvious. It has been tailored to fit the circumstances of this case, since Mr. Smith has made no attempt to show that he has rehabilitated himself. During the five year period from the date of his disbarment until his petition for reinstatement, he did little other than comply with the mandatory terms of his federal probation. He made no effort toward some gainful employment or community involvement and conceded that in the last year or two he was only waiting to see if he would be reinstated. Even the majority could hardly claim that this position meets the burden of showing rehabilitation which courts uniformly place on petitioner. As a consequence it had to invent a new rule in order to reinstate Mr. Smith.
It is appalling that the majority would entirely ignore the recommendation of the Ethics Committee who heard the witnesses and made findings of fact in regard to Mr. Smith's reinstatement. The Committee unanimously concluded that at the present time he should not be reinstated.[1] Most *775 courts have held that findings of the Legal Ethics Committee upon reinstatement hearings should be accorded considerable weight. Tardiff v. State Bar of California, 165 Cal.Rptr. 829, 612 P.2d 919 (1980); In re Wigoda, 77 Ill.2d 154, 395 N.E.2d 571 (1979); In re Hiss, 368 Mass. 447, 333 N.E.2d 429 (1975); In the Matter of Freedman, 406 Mich. 256, 277 N.W.2d 635 (1979); Petition of Harrington, 134 Vt. 549, 367 A.2d 161 (1976). The rule has been stated in this fashion in In re Hiss, supra:
"In any disciplinary proceeding the findings and recommendations of the board, though not binding on this court, are entitled to great weight. See March v. Committee of Bar Examrs., 67 Cal.2d 718, 720, 63 Cal.Rptr. 399, 433 P.2d 191 (1967); In the Matter of Bennethum, 278 A.2d 831, 833 (Del.1971); Petition of Eddleman, 77 Wash.2d 42, 43, 459 P.2d 387 (1969). Cf. In re Application of Strand, 259 Minn. 379, 381, 107 N.W.2d 518 (1961). The board has heard testimony and observed witnesses and, by virtue of this firsthand observation, is better able than a reviewing court to judge the relative credibilities of witnesses and to assign weight to the evidence they give." [368 Mass. at 461, 333 N.E.2d at 438 (footnote omitted)]
I find nothing in the report and findings of the Ethics Committee that leads me to conclude that it made any mistakes in analyzing the evidence or made any errors of law in applying the evidence to the settled legal principles that we announced in In re Brown, supra. It is difficult for me to believe that the Ethics Committee which is itself basically composed of lawyers is totally insensitive to the position of a disbarred attorney.[2] As a matter of fact, much of the criticism leveled at the Bar by the public and press is that since its disciplinary proceedings are controlled largely by its own members there is a great tendency to be too lenient in disciplinary matters.[3] Here the majority compounds the problem by not only substituting its judgment of the facts for that of the Ethics Committee's, but also has totally warped the law by removing the burden of proving rehabilitation from the applicant and casting the responsibility for showing bad character on the Ethics Committee.
The majority obliterates the high ethical and moral standards that are demanded in the practice of law by the West Virginia Code of Professional Responsibility.[4] For example, Disciplinary Rules 1-102 and 6-101 require:
"DR 1-102 Misconduct.
(A) A lawyer shall not:
(1) Violate a Disciplinary Rule.
(2) Circumvent a Disciplinary Rule through actions of another.
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on his fitness to practice law."
*776 "DR 6-101 Failing to Act Competently.
(A) A lawyer shall not:
(1) Handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it.
(2) Handle a legal matter without preparation adequate in the circumstances.
(3) Neglect a legal matter entrusted to him."
The majority ignores a concept that disciplinary proceedings cannot be analogized to a criminal punishment since the license to practice is a privilege, which can be withdrawn if the practitioner abandons the professional standards. We have consistently stated that an attorney disciplinary proceeding is neither a civil action nor a criminal proceeding because its primary purpose is "to preserve and protect courts of justice and the public from the official ministrations of persons unfit to practice." In re Brown, 157 W.Va. 1, 7-8, 197 S.E.2d 814, 818 (1973), quoting 7 C.J.S. Attorney and Client, § 28. See also, Committee on Legal Ethics v. Pence, W.Va., 240 S.E.2d 668, 673 (1977); Syl. Pt. 2, Committee on Legal Ethics v. Graziani, W.Va., 200 S.E.2d 353 (1973), cert. denied, 416 U.S. 995, 94 S.Ct. 2410, 40 L.Ed.2d 774 (1974).
We, as well as other courts, have recognized that the courts have a duty to ensure that persons granted the right to practice law are appropriately qualified to carry out what is essentially a fiduciary duty to their clients, the courts, and the public administration of justice. In West Virginia State Bar v. Earley, 144 W.Va. 504, 531, 109 S.E.2d 420, 437 (1959), we quoted these principles from an earlier case:
"In the more recent proceeding of In re Eary, 134 W.Va. 204, 58 S.E.2d 647, the opinion contains this statement: `This Court has the inherent power to grant or refuse a license to practice law.' The opinion also uses this language: `It is the duty of this Court to scrutinize carefully the qualifications of persons who seek to be admitted to practice before the courts of this State, in order that the public may be protected and the courts assisted in the discharge of the vital duties of the administration of law and the resolving of legal controversies. If this Court permits persons to enter the profession of the law who do not have the requisite moral qualifications, it would result in debasing the profession and would bring disrepute upon the administration of justice. Thereby, the confidence of the people in their courts would be destroyed. This we cannot permit.'"
Much the same thoughts were stated by the Kentucky Court in In re Stump, 272 Ky. 593, 114 S.W.2d 1094 (1938), in regard to the principles surrounding reinstatement for a disbarred attorney:
"The ultimate and decisive question is always whether the applicant is now of good moral character and is a fit and proper person to be reintrusted with the confidences and privileges of an attorney at law. This question has a broader significance than its purely personal aspect. From time immemorial lawyers have in a peculiar sense been regarded as officers of the court. It is a lawyer's obligation to participate in upholding the integrity, dignity, and purity of the courts. He owes a definite responsibility to the public in the proper administration of justice. It is of utmost importance that the honor and integrity of the legal profession should be preserved and that the lives of its members be without reproach. The malpractice of one reflects dishonor not only upon his brethren, but upon the courts themselves, and creates among the people a distrust of the courts and the bar." (272 Ky. at 598, 114 S.W.2d at 1097)
See also Matter of Raimondi, 285 Md. 607, 403 A.2d 1234 (1979), cert. denied, 444 U.S. 1033, 100 S.Ct. 705, 62 L.Ed.2d 669 (1980); Petition of Emmons, 330 Mich. 303, 47 N.W.2d 620 (1951); State v. Butterfield, 172 Neb. 645, 111 N.W.2d 543 (1961).
For the majority to cast aside these concepts and conclude that disbarment is exacting punishment and vengeance on the *777 attorney perverts the entire disciplinary process. No court has adopted this view, and for sound reasons. Disbarment does not strip an attorney from earning a livelihood. It precludes him from the practice of the legal profession. There is little doubt that with a college degree and his legal training he is amply qualified for many positions in industry, marketing and business, without the necessity of considering something less than a "white collar" job.
The loss of the license to practice arises not because of some mystical concept that we exact "vengeance," but on the very real and practical judgment that the attorney has failed to meet professional standards as a result of proven facts concerning his delinquent conduct. This concept is not peculiar to the legal profession but is well known to the medical profession as well as others.
For the majority to buttress its vengeance argument by citing a juvenile case, State ex rel. D.D.H. v. Dostert, W.Va., 269 S.E.2d 401 (1980), demonstrates its failure to grasp the key principles involved. Juveniles who have committed acts of delinquency have by statute and our case interpretations been accorded leniency because the law recognizes that they are young and immature. It is because of their youth and immaturity that the law determines they should not be punished as adults. Furthermore, because of their youth, there exists a substantial possibility of rehabilitation. These principles bear little relationship to attorney disbarment where we are confronted with mature, highly-educated adults who have committed crimes involving moral turpitude.
I cannot blind myself, as does the majority, to the petitioner's prior disciplinary record before this court, a factor which other courts have also considered. E. g. Committee on Professional Ethics v. Wilson, Iowa, 290 N.W.2d 17, 23 (1980); In re Riccardi, 80 Cal.App. 66, 74, 251 P. 650, 653 (1926).
In Committee on Legal Ethics v. Smith, 156 W.Va. 471, 194 S.E.2d 665 (1973), this same petitioner appealed the Ethics Committee's recommendation that he be given a 30-day suspension or public reprimand for failing to return retainer money to an out-of-state client after petitioner neglected to take any action on the client's claim. According to this statement in the opinion:
"[a]t no time during the period of time involved did the defendant take any action to prosecute the Lentz claim. He instituted no suit; he did not inform anyone connected with the Logan Coca Cola Bottling Company that he had been retained; he did not seek an accounting; he did not attempt to find any information on which to file a suit or to negotiate settlement." (156 W.Va. at 473-74, 194 S.E.2d at 667)
After considering petitioner's defense to the effect that he had had health problems and was heavily involved in litigation in various courts as an attorney and as a criminal defendant, this Court declined to order suspension but did issue a public reprimand.
Finally, I am troubled by the majority's blithe assumption that it knows better than the Ethics Committee what is best for attorneys. This Court sees only a small fraction of the disciplinary cases that are handled by that Committee, since it is only the serious penalties that are appealed to us. The Ethics Committee has not been draconian in its approach to disciplinary cases. The Bar By-Laws provide a humane treatment for those attorneys who commit ethical violations while under the stress of mental or emotional disability.[5] Anyone familiar with the practice of law recognizes that its demands for dedication and service can impose severe emotional burdens on an attorney. Where misconduct has resulted from this situation, the Ethics Committee, upon independent verification by physicians or psychiatrists of the legitimacy of the emotional problems, has not pressed for total disbarment but rather a suspension until the attorney regains his health.
To my knowledge, we have had only one other reinstatement case where we have ignored the recommendations of the State *778 Bar Ethics Committee. In re Daniel, 153 W.Va. 839, 173 S.E.2d 153 (1970). We overrode the recommendations and reinstated Mr. Daniel to the practice of law only to discover that he then committed disciplinary infractions after reinstatement and had to be suspended from the practice again. Committee on Legal Ethics v. Daniel, W.Va., 235 S.E.2d 369 (1977).
I do not maintain that the petitioner, Mr. Smith, is never entitled to be reinstated. I do maintain that on the present record he has not carried his burden of showing rehabilitation. His failure to establish after disbarment any meaningful social or work pattern in his community, coupled with the gravity of his initial offense, which was a crime against the election process, and his prior disciplinary record leads me to conclude that the Ethics Committee is correct.
The majority does a disservice to the legal profession, the public at large, and to the courts by its opinion. I predict we will live to regret this decision and at some point in the future will have to overrule it.
I am authorized to state that McGRAW, J., joins me in this dissent.
NOTES
[1] The applicable part of the By-Laws, § 35, reads as follows:
The annulment of a license to practice law by any court of competent jurisdiction shall revoke and terminate such license, and shall constitute a disbarment; provided, however, after the expiration of five (5) years from the date of such disbarment, a person, whose license to practice law has been or shall be annulled in this State and who shall desire reinstatement of such license, may file a verified petition in the supreme court of appeals of West Virginia reciting the court which annulled such license, the cause of such annulment and what he shall have done in satisfaction of requirements as to rehabilitation, restitution, conditions or other acts incident thereto, by reason of which he believes he should be reinstated as a member of the state bar and his license to practice law be restored to him.
[1] The majority states that "the Ethics Committee's objection to reinstatement was pro forma." Op. at 772. I find this incredible in light of the final paragraph of the Ethics Committee's Report:
"The Committee believes that in view of the nature of the offense for which Smith was convicted, the position of prominence and trust which he occupied at the time of the commission of that offense, his reinstatement would be harmful to the administration of justice, and would lower confidence in the integrity of the courts, and would be damaging to the efforts of the bar and its efforts to police the profession and to the whole judicial system and would be incompatible with the public interest and welfare."
[2] As a result of an amendment to the State Bar By-Laws adopted April 3, 1979, three nonlawyers were appointed to the nine-member Ethics Committee over a three-year period. By-Laws of the West Virginia State Bar, Article VI, Section 5.
[3] See, e. g., Woolfram, Barriers to Effective Public Participation in Regulation of the Legal Profession, 62 Minn.L.Rev. 619 (1978); see also Waltz, The Unpopularity of Lawyers in America, 25 Clev.St.L.Rev. 143 (1976); Pound, The Lay Tradition As To The Lawyer, 12 Mich.L.Rev. 627 (1914).
[4] The West Virginia Code of Professional Responsibility is substantially the same as the American Bar Association's Model Code, which has been adopted in virtually all states.
[5] By-Laws of The West Virginia State Bar, Article VI, Section 26. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315653/ | 155 Ga. App. 167 (1980)
270 S.E.2d 349
SECURITY LIFE INSURANCE COMPANY OF GEORGIA
v.
BLITCH et al.
59858.
Court of Appeals of Georgia.
Argued May 12, 1980.
Decided July 3, 1980.
William A. Turner, O. Wayne Ellerbee, for appellant.
Berrien L. Sutton, for appellees.
CARLEY, Judge.
Charlton Blitch, Jr. was issued a policy of life insurance by appellant-insurer in the face amount of $25,000 with provision for double indemnity in the event of his accidental death. Upon the death of Mr. Blitch appellant paid the $25,000 face amount of the policy to the named beneficiary, Blitch's estate, but refused demands for payment under the double indemnity provision. Appellees, executors of Blitch's estate, instituted suit against appellant to recover those accidental death double indemnity benefits. Appellant answered, alleging that "the insured and deceased was killed by a blast from a shotgun under circumstances which indicate that such was the intentional act of person or persons unknown" and that the death therefore came within a specific policy exception to accidental death coverage. The pertinent policy provision was as follows: "Exceptions: This Agreement does not cover death resulting directly or indirectly from: 1. Self destruction, while sane or insane, or injury inflicted intentionally by another person ..." Appellant also counterclaimed for return of the life insurance benefits previously paid out to Blitch's estate. The basis for the counterclaim was that "[s]ubsequent to the payment, [appellant] has discovered evidence which shows that the insured met his death ... as a result of suicide or self destruction." It was alleged that appellant was entitled to the return of the benefits since, under the policy, in the event of the insured's suicide its liability was limited to the amount of the premiums paid.
The case proceeded to trial and resulted in a directed verdict in favor of appellees on the counterclaim against them for return of the *168 proceeds of the policy already paid out and a jury verdict in favor of appellees on their claim for double indemnity benefits, $3,750 in bad faith penalties and $2,350 in attorney fees. Judgment was entered on the verdict and appellant appeals.
1. Appellant first urges that it was error to deny its motion for directed verdict as to the main action against it. It is contended that appellees failed to show that Blitch's death was due to "accidental means" as defined in the policy and that a verdict was therefore demanded for appellant. It was stipulated that Blitch died from a gunshot wound to the head. All evidence as to how the shot was fired was circumstantial and pointed toward some human agency, either Blitch himself or an unknown person. There was, however, no direct evidence that any person fired the gun. Arguments that this evidence was insufficient to meet appellees' burden of showing that Blitch died as the result of "accidental means" are without merit. Interstate Life & Acc. Ins. Co. v. Wilmont, 123 Ga. App. 337 (2, 6) (180 SE2d 913) (1971). See also Wabash Life Ins. Co. v. Jones, 147 Ga. App. 254 (248 SE2d 536) (1978). Appellant's argument is, in effect, that appellees did not negate that Blitch's death was the result of suicide or homicide. The burden was on appellant, the insurer, to prove that Blitch's death came within an exclusion to coverage and was not on appellees to negate the applicability of the exclusion. Interstate Life & Acc. Ins. Co. v. Wilmont, 123 Ga. App. 337 (1), supra. There was no error.
2. Appellant enumerates error upon the trial court's evidentiary rulings striking that portion of Blitch's death certificate containing the coroner's findings and refusing to admit into evidence the coroner's jury verdict. That part of the death certificate which was stricken denominated Blitch's death as "homicide" and the excluded coroner's jury verdict found the death "was due to Homicide by person or persons unknown." It was not error to strike the coroner's finding of "homicide" from the death certificate. Liberty Nat. Life Ins. Co. v. Power, 112 Ga. App. 547 (4c, 5) (145 SE2d 801) (1965); Wabash Life Ins. Co. v. Jones, 147 Ga. App. 254, supra. "[T]he rule appears to have emerged that a death certificate serves as prima facie evidence only of (1) the death itself and (2) the immediate agency of the death. Other conclusions, such as those regarding the events leading up to the death or whether the cause of death was intentional or accidental, are not admissible." King v. State, 151 Ga. App. 762, 763 (261 SE2d 485) (1979). Nor was it error to refuse to admit the verdict of the coroner's jury. "The verdict of a coroner's jury has no probative value whatever as evidence, is binding upon no one, and can not prejudice the right of any person." Supreme Council of the Royal Arcanum v. Quarles, 23 Ga. App. 104 (1) (97 SE 557) *169 (1918). And, it was not error to exclude the evidence for the limited purpose of negating appellant's bad faith in refusing payment. Interstate Life & Acc. Ins. Co. v. Hopgood, 133 Ga. App. 6 (209 SE2d 703) (1974).
3. Error is enumerated upon the trial court's giving of the following charge: "The amount of evidence sufficient to overcome the presumption that death was from accidental means rather than suicide or injury intentionally inflicted by another is a question for you, the jury, to determine." Even assuming that the objection below to this charge was sufficient to preserve the issue for appeal (Harper v. Ga. Sou. & F. R. Co., 140 Ga. App. 802 (232 SE2d 118) (1976)), there was no error. In arguing that the charge was erroneous, appellant relies upon the fact that the language of the charge appears in a decision of this court subsequently reversed by the Supreme Court on certiorari. This is a specious argument. In Kennesaw Life & Acc. Ins. Co. v. Templeton, 102 Ga. App. 867, 886 (118 SE2d 247) (1960) an almost identical charge was held to have been "in language which previously has been approved by this court upon factual situations substantially similar to those in the present case. Ordinarily it would seem that this combination of circumstances would require approval of the charge ..." However, this court in Kennesaw Life overruled the case from which the quoted charge was taken, Mutual Life Ins. Co. v. Burson, 50 Ga. App. 859 (179 SE 390) (1935), insofar as Burson approved a charge on the presumption against suicide in the case in which evidence was produced from which an inference of suicide could be drawn. Thus, this court did not hold the charge in Kennesaw Life to be an erroneous statement of the applicable law but only that a charge on that issue was not authorized under the facts of the case. On certiorari, the Supreme Court reversed Kennesaw Life and held that the otherwise unobjectionable charge had in fact been properly given under the evidentiary posture of the case. Templeton v. Kennesaw Life & Acc. Ins. Co., 216 Ga. 770 (119 SE2d 549) (1961). Upon remand from the Supreme Court the trial court's giving of the charge on presumption against suicide in Kennesaw Life, including that portion attacked in the instant case as erroneous, was affirmed. Kennesaw Life & Acc. Ins. Co. v. Templeton, 103 Ga. App. 669 (120 SE2d 128) (1961). We find that the charge here contested by appellant "was in language which previously has been approved by this court upon factual situations substantially similar to those in the present case," Kennesaw Life, 102 Ga. App. at 886, supra, and that the instant case was a proper one in which to give it. There was no error.
4. The trial court gave the following instruction: "[W]here the evidence surrounding the death of an insured is circumstantial, an *170 insurance company, in order to prevail on an excepting clause such as the one relied upon in this case, is required to show by the preponderance of the evidence that the circumstances it relies upon are not only consistent with the theory it seeks to establish, but are also inconsistent with every other reasonable theory." Again, even assuming that appellant's objection to this charge was sufficient, it was an accurate statement of the law and not erroneous for any reason urged on appeal. Matthews v. Gulf Life Ins. Co., 64 Ga. App. 112 (12 SE2d 202) (1940).
5. Appellant urges that the jury instruction on the recovery of a penalty for appellant's bad faith in refusing to pay was erroneous in that the court failed to charge further, apparently without request, that the jury would be authorized not to make an award of bad faith penalties if they found appellant had reasonable and probable cause for make defense to the claim. This argument is meritless. The court charged on the issue of recovery of bad faith penalty substantially in the language of the pertinent Code section, Code Ann. § 56-1206. Appellant made no request for a more explicative charge. There was no error. Guthrie v. State, 147 Ga. App. 351, 353 (1) (248 SE2d 714) (1978).
6. Appellant called as its witness the medical examiner who had conducted the postmortem examination of Blitch's body. After qualifying the witness as an expert, appellant propounded a hypothetical question and asked if the witness was able to form an opinion on whether the gunshot wound was or was not self-inflicted. Appellee objected on the grounds that the question called for the witness' conclusion as to the ultimate question for resolution by the jury. This objection was sustained and appellant enumerates this ruling as error.
There has been some confusion with regard to when a witness may testify as to his opinion even though it purports to answer the ultimate question in the case. The true rule in determining whether or not a witness should be permitted to give his opinion testimony, even as to the ultimate issue, is whether or not the question asked of him is a proper one for opinion evidence. "`If the witness is asked to draw an inference of fact from data observed by him or the expert witness is asked to draw an inference of fact from data observed by him or presented by other witnesses, this is a proper question for opinion evidence. The opinion is one of fact. It is only where the drawing of the inference requires a mixture of law and fact that the question is not a proper one for opinion evidence.' [Cit.]" Dual S. Enterprises v. Webb, 138 Ga. App. 810, 811 (227 SE2d 418) (1976). See also Hogan v. City-County Hospital, 138 Ga. App. 906, 913 (227 SE2d 796) (1976). Thus, if the witness is asked his opinion as to a fact *171 and not as to a mixed question of law and fact, he should be allowed to testify even though his opinion is as to the ultimate issue for the jury. Metropolitan Life Ins. Co. v. Saul, 189 Ga. 1 (5 SE2d 214) (1939). Applying this rule in the instant case, the question of whether or not Blitch's wound was self-inflicted lent itself to the expert's opinion as to a fact and did not involve a mixed question of both fact and law. Compare Metropolitan Life Ins. Co. v. Saul, supra, and Holt v. State, 147 Ga. App. 186 (248 SE2d 223) (1978) with Fishman v. State, 128 Ga. App. 505 (197 SE2d 467) (1973) (obscenity) and Tittle v. McCombs, 129 Ga. App. 148 (199 SE2d 363) (1973) ("excessive" speed). Reliance upon New York Life Ins. Co. v. Ittner, 62 Ga. App. 31 (8 SE2d 582) (1940) by appellees and, apparently, by the trial court in sustaining the objection was misplaced. In Ittner, a suit for recovery under a policy covering death effected solely through "external, violent, and accidental causes," an expert was allowed to testify that in his opinion the insured's death "was caused from external, violent, and accidental causes." Ittner, 62 Ga. App. at 38. This was held to be error because "[t]he death could have resulted from external and violent causes and yet not have been `accidental.' Where an insured's death is the result of a mutual combat or fight between him and another person, or is the result of his misconduct, or his participation in the act which caused his death, it is not `accidental' in the sense of the double-indemnity clause in an insurance policy. [Cits.]" Ittner, supra. Thus, the holding in Ittner was that whether the cause of death was "accidental" and thus covered under the policy being sued upon was a mixed question of law and fact and should not have been addressed by the expert. Under those circumstances, testimony that the death was "accidental" was a legal conclusion "in effect adjudging the [insurer] liable." Ittner, 62 Ga. App. at 40. It is clear from Division 1 of Ittner that testimony which involved opinion as to an inference of fact alone (the wounds were "not self-inflicted") was admissible. Thus, Ittner, insofar as it is applicable here, is not inconsistent with the rule governing permissible opinion evidence we have enunciated above. If the cause and manner of an injury is the ultimate issue of fact to be determined by the jury an expert may nevertheless give his factual opinion but not his legal conclusion on this issue for the benefit of the jury in their fact finding. Metropolitan Life Ins. Co. v. Saul, 189 Ga. 1, supra.
New York Life Ins. Co. v. Ittner, 59 Ga. App. 89 (3) (200 SE 522) (1940) which involved hearsay testimony by non-expert witnesses does not require a contrary result. Nor does dicta, unsupported by authority, in Liberty Nat. Life Ins. Co. v. Power, 112 Ga. App. 547 (4e), supra, compel a different conclusion. Furthermore, Power involved characterization of the death as "suicide," an opinion which *172 might be, in the context of a suit on an insurance policy, a mixed question of law and fact. Cf. Liberty Nat. Life Ins. Co. v. Cox, 98 Ga. App. 582 (106 SE2d 182) (1958); Mutual Life Ins. Co. v. Durden, 9 Ga. App. 797, 800 (5) (72 SE 295) (1911). The question in the instant case was whether, in the expert's opinion, the wound was "self-inflicted" and not whether it was the result of Blitch's act of "self destruction."
Having determined that the question here was a proper one for the expert's opinion testimony we turn to whether it was reversible error to exclude his answer. We find that it was not. "On direct examination, to afford a basis for the assertion of error, it must appear that a pertinent question was asked, that the court ruled out an answer, that a statement was made to the court at the time showing what the answer would be, and that such testimony was material and would have benefited the complaining party. [Cits.]" Foster v. National Ideal Co., 119 Ga. App. 773 (1) (168 SE2d 872) (1969). While appellant has met the first two prerequisites to asserting error in the exclusion of its expert's testimony, it has not met the last two. The transcript reveals that when the objection was sustained appellant made no offer of proof as to the excluded testimony. We, therefore, conclude that no error has been shown here.
7. Finally appellant asserts that it was error to grant a directed verdict as to its counterclaim for return of the $25,000 face amount of the life insurance policy paid to appellees. Upon review of the evidence we find no error in the direction of a verdict as to the counterclaim. Appellant presented no evidence of any valid reason for failing to ascertain prior to making the payment to his estate the alleged "true" circumstances surrounding Blitch's death. Barker v. Federated Life Ins. Co., 111 Ga. App. 171 (141 SE2d 206) (1965).
Judgment affirmed. Quillian, P. J., and Shulman, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315688/ | 155 Ga. App. 294 (1980)
270 S.E.2d 709
ASK ENTERPRISES, INC.
v.
JOHNSON MODEL BEDDING, INC.
59971.
Court of Appeals of Georgia.
Argued June 2, 1980.
Decided July 14, 1980.
John W. Chambers, John W. Chambers, Jr., for appellant.
Craig R. Goodman, for appellee.
BIRDSONG, Judge.
Writ of possession Lease renewal. Ask Enterprises, Inc. is the owner-lessor of rental premises located at Cherokee Plaza Shopping Center. Johnson Model Bedding, Inc. is a lessee of one of the store locations in the shopping center. On May 24, 1976, Johnson entered into a three-year lease with a termination date of May 31, 1979. The monthly rental rate was $650 per month. As a special stipulation, a portion of the lease provided that Johnson would "have an option to renew for five years at a rental of $700 per month plus any tax increase assessed to the date of the renewal." Another paragraph provided that if Johnson remained in possession after the expiration *295 of the term, with Ask's acquiescence and without express agreement between Johnson and Ask, Johnson would become a tenant at will, but there was to be no renewal of the lease by operation of law. The terms of the lease provided that one Benson was to be the rental agent and was to receive a commission even if the lease was renewed, terminated early, or ran to the original termination date. In early 1979, the manager and agent of Johnson (one Thompson) had a conversation with Benson and told Benson that he (Thompson) had informed the shopping center manager (Paris) of the desire to renew the lease for the five-year period at $700 per month. It was Thompson's understanding that Paris had agreed to the renewal. This testimony is unrebutted. Thompson inquired of Benson what was necessary to obtain the renewal. Benson informed Thompson that a new written lease was not necessary as the terms of the present lease did not require a new lease. But because the manager of the shopping center had changed between 1976 and 1979, Benson recommended that Johnson prepare a notification in writing that Johnson elected to renew for five years. However, the election letter was not received by Ask until June 11, 1979, several days after the end of the original term of the lease. Commencing in June, 1979, Johnson started payments at the rate of $700 per month, making those payments to Benson who in turn remitted the rental payments to Ask. These payments were made for several months and were accepted by Ask. However, Ask had been dissatisfied with Johnson as a tenant considering Johnson's bedding merchandise and storage as unsightly and a fire hazard. On September 26, 1979, Johnson was notified that Ask considered Johnson a tenant at will in accordance with the terms of the lease and gave Johnson 60 days to surrender possession. When Johnson did not vacate the premises, Ask brought the writ of possession which initiated this appeal. At a bench trial, the trial court denied the writ of possession concluding that Johnson had orally exercised its option to renew the lease for the additional period of five years. Ask brings this appeal disputing the denial of the writ of possession based on several asserted enumerations of error. Held:
Appellant Ask basically complains that the trial court erred in concluding that Johnson exercised its option to renew for five years in legal conformity with the terms of the lease. Ask contends that the lease required a separate express agreement (i. e., one in writing) stating the terms of the new rental. The court's findings to the contrary are claimed as error. Thus its findings that the oral exercise of the option, or that the written notice of June 11 was timely; that the tenancy actually created was not one at will; that the new term was a modification which could be and was entered into orally; or that Benson as an agent could have lawfully permitted Johnson to renew *296 the lease orally, are asserted as erroneous conclusions by the court. Each of these enumerations depends upon the validity of Ask's contention that the parties were dealing with a renewal and thus a new lease was required.
Pretermitting the question of whether the applicability of the statute of frauds might be obviated by the part performance of the "new" lease by Johnson by payment of the rental of $700 per month and the acceptance thereof by Ask for three or four months (see Williams v. Southland Corp., 143 Ga. App. 111, 114 (237 SE2d 639); Steininger v. Williams, 63 Ga. 475), we are more concerned with the intent of the parties in the original lease. We note that the lease called for a term of three years at a rental of $650 per month with the right of "renewal" for five years at a rental of $700 per month. Though the lease also provided that the rental would include increases in assessments of taxes, this obviously contemplated only an increase in taxes over the rate prevailing at the time of execution in May, 1976, for there was no understanding that the $700 rental would be reduced if the tax rate were less. It is true that some things are certain, one of which is taxes. But the certainty of taxes does not preclude the possibility that the tax rate might be the same or less. Thus perforce we conclude that the tax figure was not a matter of negotiation so as to render the payment of rent a figure uncertain. The evidence shows that the parties had agreed to a rental for five years of $700 per month plus any increase in taxes.
"A lease contract wherein the owner of land demises the premises for one year, with an option to the tenant during that year to extend the lease upon `notice of intention to take this option,' and a further option of renting the premises for an additional term of five years at an increased rental, notice of acceptance of which to be given by the tenant at a stated time preceding the commencement of such additional term, is a lease for ten years at the election of the lessee, absolute for the first year and optional with the lessee as to future continuance under the terms and conditions prescribed in the lease contract." Walker v. Wadley, 124 Ga. 275 (52 S.E. 904). To the same effect, see Richards v. Plaza Hotel, 171 Ga. 827 (156 S.E. 809); Slater v. Kimbro, 91 Ga. 217 (18 S.E. 296); King &c. Hotel v. McLendon, 74 Ga. App. 805 (41 SE2d 556); Malcom Bros. v. Pollock, 52 Ga. App. 772 (184 S.E. 659); Sterchi Bros. Stores v. Mitchell, 49 Ga. App. 826 (2) (176 S.E. 537); Lanham v. McWilliams, 6 Ga. App. 85 (64 S.E. 294). As was said in Pritchett v. King, 56 Ga. App. 788 (194 S.E. 44) at p. 792: "`The view has been taken that a lease for a specific term with the privilege of a renewal on the same terms is equivalent, where such privilege is exercised, to a demise for the full period of the two terms, without any necessity for the execution of a new lease.'" We are *297 persuaded by the logic of these cases and hold that we are dealing here with the extension of the lease and not a renewal thereof.
In this case because Johnson is in possession pursuant to the original written lease, it cannot be said that Johnson is a tenant at will. Sterchi Bros. Stores v. Mitchell, supra, p. 431. That written lease did not provide any particular method for notification of the election to extend the lease for the full term of eight years. It is not contested that oral notification in fact was tendered prior to the termination of the original three-year term. Under these facts, we conclude that Ask was not entitled to dispossess Johnson for any of the reasons urged and the court did not err in entering judgment for Johnson. Pitman v. Griffeth, 131 Ga. App. 489, 495 (206 SE2d 115).
Judgment affirmed. Deen, C. J., and Sognier, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315683/ | 155 Ga. App. 363 (1980)
270 S.E.2d 898
LAWSON
v.
DUKE OIL COMPANY.
59448.
Court of Appeals of Georgia.
Submitted February 5, 1980.
Decided July 16, 1980.
John F. Sweet, for appellant.
H. Lowell Hopkins, Patrick J. McKenna, for appellee.
McMURRAY, Presiding Judge.
Duke Oil Company, as plaintiff, brought this action against Billy Lawson, as defendant, alleging that Lawson negligently damaged its tractor-trailer in a collision of motor vehicles on February 14, 1973. Lawson answered, denying the claim and counterclaimed for personal injuries and property damage to his vehicle arising out of the collision, said vehicle allegedly being operated by an agent, servant and employee of the defendant within the scope of his employment. Defendant later amended to admit that plaintiff was the owner of the tractor trailer as alleged in plaintiff's petition. The case was then regularly called for trial "pursuant to a special calendar," and there being no response or appearance by the plaintiff, the case was ordered dismissed for want of prosecution. However, it was later reinstated when this order was vacated.
Plaintiff responded to the counterclaim and denied that it was the owner of the tractor-trailer which "was owned by S. W. Duke Distributors, Inc. at the time of the collision," contending that at the time of the collision it had no right, title or interest in the tractor-trailer.
Duke Oil Company then moved for summary judgment, attaching the affidavit of Tommy Duke, president of Duke Oil Company and also president of "S. W. Duke Distributor, Inc.," setting forth certain facts with reference to the collision, naming the driver and type of tractor involved in the collision, and deposing therein that the driver was never employed by Duke Oil Company, with exhibits attached with reference to the certificates of title dated May 12, 1971, in the name of "S. W. Duke Oil Distributor, Inc." as to the tractor and April 21, 1971, in the name of "S. W. Duke Oil Distributors, Inc." as to the trailer, tax receipts, and other business records. The motion for summary judgment was heard, and based on the evidence it was held that the plaintiff Duke Oil Company was "entitled to judgment in its favor as to the Counterclaim filed by the defendant as a matter of law." The counterclaim was dismissed, and the defendant appeals. Held:
"The burden is upon the moving party to establish the lack of a *364 genuine issue of fact and the right to a judgment as a matter of law, and any doubt as to the existence of such an issue is resolved against the movant." Holland v. Sanfax Corp., 106 Ga. App. 1, 4 (1) (126 SE2d 442). See also Giant Peanut Co. v. Carolina Chemicals, 129 Ga. App. 718, 719 (1) (200 SE2d 918); Jaffe v. Davis, 134 Ga. App. 651, 654 (215 SE2d 533).
Here we have the anomaly of a petitioner whose action for damages has been reinstated after dismissal then offering evidence counter to its pleadings and having its motion for summary judgment as to the counterclaim granted, leaving the main action pending in the trial court in which action it claims damages for the loss of a vehicle it now denies owning. The rule as to admissions in pleadings is clear. "Without offering the same in evidence, either party may avail himself of allegations or admissions made in the pleadings of the other." Code § 38-402. See Gray v. Atlanta Transit System, 136 Ga. App. 573, 574 (1, 2) (222 SE2d 67). Even if the pleadings were formally withdrawn and therefore not solemn admissions in judicio, an admission can be given such credence and effect as a jury may determine upon the trial of the case. Joyner v. William J. Butler, Inc., 143 Ga. App. 219, 220 (3) (237 SE2d 685). Where matter is contained in pleadings from which inferences may be drawn beneficial to the opposite party, it may be considered as evidence in his favor. McLendon Elec. Co. v. McDonough Const. Co., 145 Ga. App. 137, 146 (243 SE2d 537); reversed on other grounds in McDonough Const. Co. v. McLendon Elec. Co., 242 Ga. 510 (250 SE2d 424).
On consideration of summary judgments we and the trial court must look at the entire record. "While pleadings remain of record they constitute solemn admissions in judicio; they may be stricken, and thereafter, if they contain admissions against interest, they may be introduced by the opposite party for the purpose of contradiction to show a shift of position between mutually contradictory positions." Davis v. Calhoun, 128 Ga. App. 104, 107 (2) (195 SE2d 759). See also Joyner v. William J. Butler, Inc., 143 Ga. App. 219, 220 (3), supra. In the latter case we held that the trial court erred in granting a motion for judgment notwithstanding the verdict (mistrial) in that there was an admission by the defendant in the pleadings which raised a factual issue. The same situation would apply to a motion for summary judgment. Further, where a party offers evidence in his own behalf, his testimony is to be construed most strongly against him when it is self-contradictory, vague or equivocal. Burnette Ford v. Hayes, 227 Ga. 551 (181 SE2d 866); Ryder v. Schreeder, 224 Ga. 382, 386 (162 SE2d 375); Lampkin v. Edwards, 222 Ga. 288, 290 (149 SE2d 708). See also Chambers v. C. & S. Nat. Bank, 242 Ga. 498, 502 (249 SE2d 214), in which the Supreme *365 Court, in quoting from W. & A. R. Co. v. Evans, 96 Ga. 481, 486 (23 S.E. 494), stated that "`[A] party testifying in his own favor has no right to be intentionally or deliberately self-contradictory; and if he is so, the courts are fully justified in taking against him that version of his testimony which is most unfavorable to him.'"
Accordingly, the trial court erred in granting summary judgment in favor of the plaintiff against the defendant as to the counterclaim and in dismissing it. Conflicting evidence remains before the court which prevents a determination that there is "no genuine issue as to any material fact," and the plaintiff is entitled to judgment as a matter of law. Code Ann. § 81A-156 (Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238; 1975, pp. 757, 759); Farris v. Sneed, 144 Ga. App. 488 (241 SE2d 605); Giant Peanut & Grain Co. v. Long Mfg. Co., 129 Ga. App. 685, 688-689 (201 SE2d 26). Compare Brittain v. Reid, 220 Ga. 794, 797 (2) (141 SE2d 903); Moore v. Wachovia Mtg. Co., 138 Ga. App. 646, 649 (4) (226 SE2d 812).
Judgment reversed. Deen, C. J., Quillian, P. J., Shulman, Birdsong, Carley and Sognier, JJ., concur. Smith and Banke, JJ., dissent.
SMITH, Judge, dissenting.
I respectfully dissent. The major issue set forth in this appeal concerns the amendment by Duke Oil Company (Duke) to its complaint withdrawing its allegation of ownership of the tractor-trailer unit involved in the subject collision. After filing this amendment, Duke moved for summary judgment against Lawson's counterclaim. The basis for Duke's motion was its argument that Lawson could not recover from Duke in any event because the tractor-trailer was not owned by Duke and its driver was neither an employee nor an agent of Duke at the time of the collision. Lawson made no response to Duke's motion.
1. Duke's amendment reflecting that the tractor-trailer unit was owned by S. W. Duke Distributor, Inc., who is not a party to this case, was filed nearly five years after the filing of its original complaint. Lawson asserts that Duke was estopped from denying ownership at that time since the statute of limitation barred his bringing an action against the correct party. I cannot agree.
*366 "A party may amend his pleadings as a matter of course and without leave of court at any time before the entry of a pre-trial order." CPA § 15 (a) (Code Ann. § 81A-115). As there was no pretrial order issued in this case, Duke was free to amend its complaint. Moreover, Duke's original pleadings were, by the subject amendment, stricken from the record insofar as they alleged ownership of the tractor-trailer unit, and "stricken or amended pleadings may not be used to work an estoppel against the pleader." Azar v. Accurate Const. Co., 146 Ga. App. 326 (246 SE2d 381) (1978). Cf. Martin v. Pierce, 140 Ga. App. 897 (1) (232 SE2d 170) (1977); Haskins v. Jones, 142 Ga. App. 153 (3A) (235 SE2d 630) (1977).
There is nothing in the record to indicate that the evidence offered by Duke in support of its motion was "self-contradictory, vague or equivocal." In support of its motion, Duke submitted the affidavit of its president (who is also the president of S. W. Duke Distributor, Inc.) "made upon his own personal knowledge." The president stated that the subject tractor-trailer unit was owned by S. W. Duke Distributor, Inc. at the time of the accident. In addition, he submitted "true, correct and accurate copies" of the certificates of title and the 1973 ad valorem tax receipts for the tractor and trailer showing the owner to be S. W. Duke Distributor, Inc. In light of the foregoing affidavit, as well as Duke's amended pleadings, Lawson was required to "set forth specific facts showing that there [was] a genuine issue for trial." CPA § 56 (e) (Code Ann. § 81A-156). See Vitiaz v. Chrysler Credit Corp., 135 Ga. App. 606 (3b) (218 SE2d 313) (1975).
Apparently bewitched by the discovery of an anomaly, the majority persists in viewing Duke's pleadings as if they had never been amended. However, the status of this case in the trial court is not before this court for review. Those cases cited by the majority in support of its position are factually distinguishable from this case in that either the "admission in the pleadings" was never formally withdrawn or the withdrawn admission was introduced into evidence by one of the parties. See Code §§ 38-402 and 38-403; Davis v. Calhoun, 128 Ga. App. 104 (2) (195 SE2d 759) (1973). To permit Lawson to remain mute in light of evidence which pierced his pleadings contravenes both the letter and spirit of the summary judgment section of the Civil Practice Act.
Furthermore, Lawson's counterclaim asserted Duke's ownership of the tractor-trailer unit at the time of the accident. However, since Duke did not respond to the counterclaim, the averments therein must be taken as denied. CPA § 8 (d) (Code Ann. § 81A-108 (d)). Despite this apparent conflict in the pleadings, Lawson did not begin his discovery until nearly four years later, and, *367 in response to initial interrogatories, Duke stated that the tractor-trailer was owned by a different corporate entity. Therefore, any delay in discovering the correct identity of the owner of the tractor-trailer was attributable to Lawson himself. See Code § 37-116; Hurt Bldg. v. Atlanta Trust Co., 181 Ga. 274, 286 (182 S.E. 187) (1935).
2. In his affidavit, Duke's president further stated that the driver of the tractor-trailer unit was not an employee of Duke at the time of the accident. In addition, a copy of Duke's quarterly federal tax summary, Form 941, was attached to the affidavit. The form lists all persons employed by Duke for the first quarter of 1973, which included the date of the collision. The name of the person driving the tractor-trailer at the time of the collision is notably absent from this list. The president further stated that the form was "a business record of Duke Oil Company, and was prepared in the regular course of business of Duke Oil Company."
We need not decide whether the affidavit laid the proper foundation for qualifying the tax form as a business record under Ga. L. 1952, p. 177 (Code Ann. § 38-711). See Thomasson v. Trust Co. Bank, 149 Ga. App. 556 (254 SE2d 881) (1979). Since the exhibit merely corroborated the president's averment as to the driver's employment, any "error would be harmless because the fact sought to be proved thereby ... is merely cumulative ..." Ball v. State of Ga., 137 Ga. App. 333, 336 (2) (223 SE2d 743) (1976); Cf. Hall v. State, 239 Ga. 832 (4) (238 SE2d 912) (1977); SCM Corp. v. Thermo &c. Products, 153 Ga. App. 372 (3B) (265 SE2d 598) (1980).
Moreover, Lawson's argument that statements in the affidavit denying the existence of an agency relationship between the driver of the tractor-trailer and Duke when the collision occurred were "bare assertions" insufficient to prove the nonexistence of an agency relationship is without merit. "On the question of agency, the affidavits of parties to the alleged agency denying the existence of the agency are as to facts, whereas bare assertions and denials of third parties as to the agency are conclusions only." Oglesby v. Farmers Mutual Exchange, 128 Ga. App. 387, 389 (5) (196 SE2d 674) (1973).
Therefore, since Lawson presented no proof that the driver of the tractor-trailer unit was an employee or agent of Duke at the time of the collision, nor any evidence that Duke owned the tractor-trailer unit at that time, I would affirm the trial court.
I am authorized to state that Judge Banke joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315708/ | 332 P.2d 208 (1958)
HIBBARD, SPENCER, BARTLETT & CO., a corporation, Petitioner,
v.
The DISTRICT COURT IN AND FOR EL PASO COUNTY, Colorado; Honorable John M. Meikle, Judge of Said Court, and Paul N. Seiler, Respondents.
No. 18705.
Supreme Court of Colorado, En Banc.
November 24, 1958.
Bennett & Heinicke, Colorado Springs, for petitioner.
Murray, Baker & Wendelken, Colorado Springs, for respondents.
DAY, Justice.
We will refer to the parties as they appear in the trial court where the petitioner is defendant, and Paul N. Seiler, one of the respondents, is plaintiff.
The case involves but one question: Was the defendant, an Illinois corporation, at the time alleged in the complaint and at the time it was served with summons in Colorado, doing business in this state so as to subject it to the process of the courts of this state ?
The trial court, on hearing a motion to quash the summons, held that the defendant corporation was doing business in this state and was present here for the purpose of personal service upon it, and denied the motion to quash. Defendant is here seeking relief in the nature of prohibition to prevent the trial court from exercising jurisdiction over it and from proceeding to trial on the issues.
Plaintiff was a salesman for the defendant company under a written contract of employment. Alleging certain sums due him for commissions on sales made by him during the life of the contract, plaintiff, in March, 1956, brought suit in the district court of El Paso County. Summons was issued and served on a stockholder of the defendant corporation in El Paso County. The defendant concedes that if it was "present" in Colorado the service was good pursuant to Rule 4(e) (5), R.C.P.Colo.
The evidence of the activities of the defendant corporation in Colorado by and through its salesmen is not in substantial conflict. Defendant corporation had been selling its products through salesmen, at one time as many as five, for fifty years. The *209 salesmen were employed to call on customers, carrying samples and a catalog of defendant's hardware line. The customer ordered from either viewing the samples or from a description in the catalog, and the salesmen wrote up the order and mailed it to the company. The salesmen expedited the delivery of the goods purchased by the customers, determined the means of transportation from the factory to the purchaser, and frequently would prod the transportation company in order to expedite the shipment and get prompt delivery. On occasion they assisted in the collection of slow or delinquent accounts on direction by letter from defendant. Salesmen solicited new accounts on their own initiative, obtained financial statements of customer ratings; at times picked up over-stocked or over-ordered merchandise from one dealer and sold it to another, sometimes on their own initiative and sometimes under order and direction of a regional sales manager. Allotments were made to salesmen who were authorized to place them at their discretion. Samples were sent to the salesmen who in turn could sell the samples to customers after they had served their purposes. Samples were charged out to the salesmen. When sales were made, credit was given to the salesman's account and a charge made to the customer by the company. Merchandise was shipped into Colorado for display purposes in the name of the company. After display in hotels at conventions the merchandise was shipped back to the company or sold. The contracts of employment in evidence required the salesmen to devote their entire time, skill and attention to their employment and prohibited them from selling other lines or becoming interested in other businesses. Defendant's business in the state of Colorado was substantial, approximating $200,000 per annum.
Defendant's contention was that much of the activity of the salesman as enumerated above had been curtailed in the last year of plaintiff's employment so that plaintiff had not been called upon to make any collections, had no samples, and had been using only the catalogs. The practice of making cash adjustment with customers for faulty merchandise or short orders up to the maximum of $2 per adjustment was continued. Plaintiff, while admitting that these activities on his part had been curtailed, contends that fundamentally the operation did not change and that in the year in which suit was brought the company was selling through at least one salesman under identical contract who was under bond to the company and had identical authority as under the contracts of previous years, although the company may not have asked him specifically to make collections, shift consignments, or sell merchandise direct from sample supplies.
Question to be determined:
Under the circumstances presented here, did the court abuse its discretion in finding and holding that defendant was doing business in the state of Colorado so as to make it amenable to process?
The question is answered in the negative. In numerous cases in the past on an identical question, wherein the trial court has been both sustained and overruled, this court has consistently agreed with the weight of authority on one point: that each case depends on its own facts. Begole Aircraft Supplies v. Pacific Airmotive Corp., 121 Colo. 88, 212 P.2d 860; Butler Bros. Shoe Co. v. United States Rubber Co., 8 Cir., 156 Fed. 1; People's Tobacco Co. v. American Tobacco Co., 246 U.S. 79, 38 S. Ct. 233, 62 L. Ed. 587.
In a case nearly similar in facts to those in the case before us, the United States Supreme Court in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S. Ct. 154, 158, 90 L. Ed. 95, said:
"* * * To say that the corporation is so far `present' there as to satisfy due process requirements, for puposes of taxation or the maintenance of suits against it in the courts of the state, is to beg the question to be decided. For the terms `present' or `presence' are used merely to symbolize those activities of the corporation's *210 agent within the state which courts will deem to be sufficient to satisfy the demands of due process. * * * Those demands may be met by such contacts of the corporation with the state of the forum as make it reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there. * * *
"'Presence' in the state in this sense has never been doubted when the activities of the corporation there have not only been continuous and systematic, but also give rise to the liabilities sued on, even though no consent to be sued or authorization to an agent to accept service of process has been given. * * *" (Emphasis supplied.)
In Colorado our decisions have given approval to resolving such cases by: "(1) Leaving the matter in the sound discretion of the trial court; (2) distinguishing between those cases where merely the internal affairs of the corporation are involved and those cases where the corporation has had transactions with third persons; and (3) considering the equities of the case." Rogers v. Mountain States Royalties, 116 Colo. 455, 182 P.2d 142, 145.
Actually the courts under the class of cases in (1) above have ruled that the question of what constitutes doing business is a fact to be determined as any other fact. Electrical Equipment Company, Inc. v. Daniel Hamm Drayage Company, 8 Cir., 217 F.2d 656. So if the evidence supports the finding of the trial court we will not disturb it. The absence of exact measures for the determination of what constitutes doing business in a state for the purpose of becoming amenable to the processes of the courts of the state, and the lack of uniformity in the discussions of the courts taken together with the opportunity of the trial court to observe the witnesses and to weigh their testimony all lend strength to the wisdom of leaving the matter to the trial court. On the testimony presented, it cannot be said that the learned trial judge exceeded his jurisdiction or abused his discretion in holding that the company was doing business in this state.
Accordingly, the rule is discharged. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1413362/ | 186 S.E.2d 205 (1972)
13 N.C. App. 495
James L. SWEET, t/a Sweet Construction Company
v.
O. Ray MARTIN et ux. et al.
No. 7221DC89.
Court of Appeals of North Carolina.
February 2, 1972.
*206 Roberts, Frye & Booth, by Leslie G. Frye, Winston-Salem, for plaintiff appellee.
Green, Teeter & Parrish, by W. Douglas Parrish, Winston-Salem, for defendant appellants.
BRITT, Judge.
Defendants entered no exception to either of the numerous findings of fact made by the trial court and set forth in the judgment; their sole exception pertaining to the judgment is to the signing of the judgment. Exceptions 1, 2, 4 and 5 relate to the competency of certain evidence admitted or excluded at the trial; exceptions 3 and 6 relate to the failure of the trial court to grant defendants' motions for directed verdict made at the conclusion of plaintiff's evidence and renewed at the close of all the evidence.
A general exception to the judgment and an assignment of error that the court erred in entering the findings of fact and signing the judgment is a broadside assignment of error and does not bring up for review the findings of fact or the evidence on which they are based. Merrell v. Jenkins, 242 N.C. 636, 89 S.E.2d 242 (1955) and cases therein cited. In Burnsville v. Boone, 231 N.C. 577, 580, 58 S.E. 2d 351, 354 (1950), the Supreme Court said: "Moreover, in the absence of * * * proper exception to the findings of fact, of which defendants complain, exceptions to the admission of evidence, taken during the course of the hearing before the trial judge, as well as the exceptions taken by defendants to the rulings of the judge in denying their motions for judgment as of nonsuit, and assigned as error, are ineffectual. Smith v. Davis, 228 N.C. 172, 45 S.E.2d 51; Safie Mfg. Co. v. Arnold, 228 N.C. 375, 45 S.E.2d 577." The assignments of error based on exceptions 1, 2, 3, 4, 5 and 6 are overruled.
By their exception number 7, defendants except to the signing of the judgment. This exception presents for review the single question as to whether the facts found support the judgment. Merrell v. Jenkins, supra. We hold that the findings of fact amply support the judgment entered by the trial court.
The judgment appealed from is
Affirmed.
BROCK and VAUGHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315885/ | 52 Cal. App. 2d 279 (1942)
WILLIAM D. LeGRAND et al., Respondents,
v.
LAMBERT P. RUSSELL et al., Defendants; NATHAN SMITH, Third Party Claimant and Appellant.
Civ. No. 13191.
California Court of Appeals. Second Dist., Div. Two.
May 26, 1942.
John J. Craig for Appellant.
Faries & Williamson, Fulton W. Hoge, J. M. McCroskey and Kenneth O. Rhodes for Respondents.
STEPHENS (JESS E.), J. pro tem.
This is an appeal by third party claimant from a judgment of the trial court based upon findings that a certain automobile was the property of defendant C. T. Kennedy and not of appellant.
It appears from the record that appellant was employed by Kennedy, a building contractor engaged in constructing a number of dwelling houses, and that on October 12, 1940, appellant purchased the automobile in question (a small, used Ford truck) from Kennedy for the sum of $150, paying $30 cash and the balance in installments which were completed December 2, 1940. On the latter date appellant received the "pink slip," endorsed by Kennedy, and mailed it to the Department of Motor Vehicles with the accompanying fees and requested that a new one be issued in his name. This new pink slip was issued by the department on December 13, 1940. On December 12, 1940, the sheriff levied upon and took possession of the automobile pursuant to a writ of execution issued upon a long-standing judgment against defendant Kennedy.
Respondents rely upon section 186 of the Vehicle Code and the case of Coca Cola Bottling Co. v. Feliciano, 32 Cal. App. 2d 351 [89 P.2d 686]. Section 186 of the Vehicle Code at the time in question read as follows: "No transfer of the title or any interest in or to a vehicle registered hereunder shall pass nor shall delivery of any said vehicle be deemed to have been made and any attempted transfer shall not be effective for any purpose until transfer of registration is made and the department has issued a new certificate of ownership and registration card with respect thereto as provided herein, except as a transferor may be estopped by law to deny a transfer and except as provided in sections 178 and 180 hereof and in chapter 3 of this division."
[1] It is clear that inasmuch as Kennedy, the transferor, had received the full amount of the purchase price and had delivered the pink slip to the buyer prior to the levy, he was estopped, as against the buyer, to deny the transfer. He therefore comes within the exception provided in the above section of the code. The judgment creditor takes no better title than his judgment debtor, and is likewise estopped. *281 (Carpenter v. Devitt, 49 Cal. App. 2d 473 [122 P.2d 79], and cases cited therein.) As stated in the latter case, the matter of this exception was not discussed or passed upon in the case of Coca Cola Bottling Co. v. Feliciano, supra.
[2] Some contention is made that there was not a continuous change of possession as required by section 3440 of the Civil Code. However, the evidence as shown by the bill of exceptions is insufficient to sustain this claim. The undisputed testimony of the third party claimant (the buyer) is that he took immediate possession when he purchased, and that no one thereafter drove the car excepting himself and his son. He kept it stored at his home. He was in the carpenter contracting business, doing work for Kennedy (the seller) in the building of houses on a tract of land owned by the latter. In doing this work he occasionally left the automobile in different garages appurtenant to these houses. Apparently this was a matter of convenience in carrying on his work. It was in one of these when the sheriff seized it. This would not justify a finding that there was not a bona fide and sufficient change of possession as required by Civil Code section 3440. The injustice of declaring the transfer void on the basis of this section becomes apparent when it is remembered that the primary purpose of such a statute is to protect creditors who may have relied upon the continued ownership of the personal property in question; whereas in the instant case the judgment (totaling $9,866.56) was obtained seven years and nine months prior to the transfer of this used light truck, which sold for $150.00.
The judgment appealed from is reversed.
Moore, P. J., and McComb, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315909/ | 694 S.E.2d 639 (2010)
James L. GROVES, III, Petitioner Below, Appellee
v.
Joseph CICCHIRILLO, Commissioner, West Virginia Division of Motor Vehicles, Respondent Below, Appellant.
No. 35132.
Supreme Court of Appeals of West Virginia.
Submitted March 3, 2010.
Decided May 6, 2010.
*641 Darrell V. McGraw, Jr., Attorney General, Janet E. James, Assistant Attorney General, Charleston, WV, for Petitioner.
J. Thomas Madden, II, Glen Dale, WV, for Respondent.
PER CURIAM:
This is an appeal by the respondent below, Joseph Cicchirillo, Commissioner of the Division of Motor Vehicles[1] (hereinafter "DMV" or "Commissioner"), of the February 12, 2009, final order of the Circuit Court of Marshall County in an administrative agency appeal. By the terms of the February 12, 2009, order, the revocation of the driver's license of the petitioner below, James L. Groves (hereinafter "Appellee"), for driving under the influence (hereinafter "DUI") was reversed. The reason for the reversal of the license revocation centers on the lower court's finding that the Commissioner's revocation order was not entirely based on findings established through the testimony of the charging officer at the DMV revocation hearing. Upon consideration of the parties' briefs and arguments in this proceeding, the record accompanying the appeal, as well as the pertinent authorities, the circuit court's order is reversed and DMV's administrative order revoking Appellee's driver's license is reinstated.
I. Factual and Procedural Background
A deputy of the Marshall County Sheriff's Department responded to a report of a motor vehicle accident occurring shortly after midnight on February 19, 2008. The deputy testified at the DMV hearing that he did not immediately discover the vehicle involved in the accident when he arrived at the scene because the car had "skidded over the guardrail." No other vehicles were apparently involved in the incident. The deputy found the Appellee walking along the same side of the road where his car was discovered. The vehicle information section of the West Virginia D.U.I. Information Sheet (hereinafter "DUI Information Sheet") completed by the deputy and appearing in the record indicates that Appellee owned the car involved in the accident, and lists the license plate number and vehicle identification number among the identifiers of the vehicle. In the "Personal Contact" section of the DUI Information Sheet the deputy indicated he observed Appellee having bloodshot and glassy eyes, slurred speech, and being unsteady while walking to the road.
The DUI Information Sheet further indicates that the deputy conducted a horizontal gaze nystagmus (hereinafter "HGN") test on Appellee at the accident site. According to the officer's testimony at the DMV hearing, after he recorded the results of the HGN test he decided to transport Appellee to the sheriff's office to complete the field sobriety tests because of the inclement weather conditions that night. Appellee was unsuccessful in completing a one-leg stand test conducted at the sheriff's office. Afterward, Appellee agreed to submit to the secondary chemical test authorized for use by the Marshall County Sheriff's Department[2] by signing an Implied Consent Statement. As reflected in the DUI Information Sheet, the deputy had observed Appellee for twenty minutes before conducting the secondary chemical test of the Intoximeter. The deputy also noted on the form that prior to administering the test to Appellee an individual disposable mouthpiece was placed on the tube of the meter and the gas reference standard indicated the Intoximeter was functioning properly. The printout of the Intoximeter in the record indicates a blood alcohol content (hereinafter "BAC") of .218.
The deputy apprised DMV of Appellee's arrest for DUI by submitting the completed DUI Information Sheet, signed Implied Consent Statement and Intoximeter printout.[3]*642 After reviewing these documents, DMV issued an initial order on March 4, 2008, revoking Appellee's privilege to drive. W.Va.Code § 17C-5A-1(c). Appellee timely requested an administrative hearing and informed DMV he intended to challenge the results of the secondary chemical test.
During the May 28, 2008, hearing, the hearing examiner asked the deputy to identify each of the documents he had submitted to DMV in connection with Appellee's accident and DUI arrest. The deputy testified that the documents included the DUI Information Sheet, signed Implied Consent Statement and the Intoximeter printout. He further attested to the truth and accuracy of the reports. The substantive portion of the deputy's testimony at the hearing was made in response to the hearing examiner's question of what caused the deputy to complete the documents and submit them to DMV. The deputy stated:
I received a complaint of a vehicle that had crashed on Roberts Ridge. I actually drove by once. I didn't see it. The ambulance saw it before I did. I came back by. At that time I noticed a vehicle had went over, that skidded over the guardrail on the other side. I got out and made contact with Mr. Groves. I asked him if he'd been drinking. He said coffee is what he answered.[[4]] I assumed that he might be drinking (Inaudible.) the accident. I performed the horizontal gaze nystagmus test on the scene right there. Due to the weather conditions and the road way conditions and such I went ahead and transported him back to Marshall County Sheriff's Office to finish the tests. I recall I might have given him the nine step walk-and-turn test. I don't recall if I did or not due to the area. There's a line through it, so apparently I didn't. [..] (Inaudible.) at the office I can't[ ] have somebody walk there. I did however perform the one-legged stand test. Based on that I felt he failed this test and then had him submit to the EC/IR [Intoximeter] test. I gave him a citation and he was released. He was further processed, fingerprinting and photograph.
Appellee and his counsel attended the hearing, but the deputy was not cross-examined nor was any testimony or documentary evidence proffered on Appellee's behalf. After considering the results of the hearing along with the evidence in the DMV file in this case[5], the Commissioner reinstated the initial revocation by final order dated September 22, 2008.
Appellee appealed the DMV final order to the circuit court. In the February 12, 2009, final order, the circuit court found that DMV's "final order ... [did] not comport with the testimony and evidence adduced at the ... final hearing." The order reflects the lower court's finding that the "automatic admission" of the Intoximeter printout into evidence at the DMV hearing was in effect foreclosed by Appellee's timely challenge to the Intoximeter test results.[6] The order went on to relate that the deputy's testimony did not provide a proper foundation for the admissibility of the Intoximeter results, nor did the testimony establish that the deputy had observed Appellee for twenty minutes before the test was administered or that a sterile disposable mouthpiece was utilized in the testing. The lower court also observed *643 that the deputy offered no testimony regarding the BAC test, including whether Appellee failed the test.
Similarly, the lower court found that although the deputy testified at the hearing that he had administered the horizontal gaze nystagmus test on Appellee, the deputy did not say anything about Appellee's performance during the test or whether or not Appellee passed or failed that test. The court further noted that the testimony did not establish that the deputy had observed Appellee driving a motor vehicle.
The lower court's order concluded that
after a review of the record, including, but not limited to the transcript of the final administrative hearing and the arresting officer's testimony, that the arresting officer did not provide sufficient evidence to prove by a preponderance ... that the petitioner drove a motor vehicle while under the influence of alcohol.
Based upon these findings and conclusions, the lower court reversed DMV's final order of revocation. DMV subsequently filed its petition for appeal of the February 12, 2009, order with this Court, for which review was granted on September 3, 2009.
II. Standard of Review
This proceeding involves an appeal by DMV of a circuit court order reversing a final revocation order of the administrative agency. The standard a circuit court is to apply when reviewing an administrative agency order was set forth in syllabus point two of Shepherdstown Volunteer Fire Dept. v. State ex rel. State of West Virginia Human Rights Com'n, 172 W.Va. 627, 309 S.E.2d 342 (1983), as follows:
Upon judicial review of a contested case under the West Virginia Administrative Procedure Act, Chapter 29A, Article 5, Section 4(g), the circuit court may affirm the order or decision of the agency or remand the case for further proceedings. The circuit court shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decisions or order are: "(1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law; or (5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."
In the pending case, the lower court reversed the order of the administrative agency on the ground that the revocation was clearly wrong in view of the evidence.
Our review of a circuit court's decision involving an administrative agency order proceeds under the standard announced in Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996). In syllabus point one of Muscatell we held that "[o]n appeal of an administrative order from a circuit court, this Court is bound by the statutory standards contained in W.Va.Code § 29A-5-4(a) and reviews questions of law presented de novo; findings of fact by the administrative officer are accorded deference unless the reviewing court believes the findings to be clearly wrong." This deference extends to evidentiary findings made at administrative hearings. Syl. Pt. 1, Francis O. Day Co., Inc. v. Director, Div. Of Envtl. Protec., 191 W.Va. 134, 443 S.E.2d 602 (1994) ("Evidentiary findings made at an administrative hearing should not be reversed unless they are clearly wrong."). We undertake our review with these parameters in mind.
III. Discussion
The principal determination to be made at a DMV hearing regarding revocation of a driver's license for DUI is "whether the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs." W.Va.Code § 17C-5A-2(e). At the heart of this appeal is the circuit court's implicit determination that the license revocation could only be upheld if the various findings regarding proof of Appellee driving under the influence contained in DMV's final revocation order were supported by the testimony *644 of the arresting officer at the DMV hearing.
DMV argues that there was sufficient evidence in the record to support the revocation when the deputy's testimony is considered in conjunction with the information contained in the documents appearing in the DMV record, particularly the DUI Information Sheet, Implied Consent Statement and Intoximeter printout. According to DMV, the lower court's position is at odds with the Administrative Procedures Act as interpreted in Crouch v. West Virginia Division of Motor Vehicles, 219 W.Va. 70, 631 S.E.2d 628 (2006).
The Crouch case was an appeal from a circuit court's reversal of a license revocation wherein the lower court found that DMV had failed to establish jurisdiction. The circuit court in that case had based its decision solely upon the testimony of an arresting officer without considering the evidence of jurisdiction contained in a sworn document entitled "Statement of Arresting Officer" that was part of the DMV hearing record. In addressing sufficiency of evidence in Crouch, we examined the relevant provision of the Administrative Procedures Act and observed:
Without a doubt, the Legislature enacted W.Va.Code § 29A-5-2(b) with the intent that it would operate to place into evidence in an administrative hearing "[a]ll evidence, including papers, records, agency staff memoranda and documents in the possession of the agency, of which it desires to avail itself...." W.Va.Code § 29A-5-2(b). Indeed, admission of the type of materials identified in the statute is mandatory.
Id. at 76, 631 S.E.2d at 634. We further noted in Crouch "that the fact that a document is deemed admissible under the statute does not preclude the contents of the document from being challenged during the hearing. Rather, the admission of such a document into evidence merely creates a rebuttable presumption as to its accuracy." Id. at 76 n. 12, 631 S.E.2d at 634 n. 12.
In the present case, no effort was made to rebut the accuracy of any of the records, including the DUI Information Sheet, Implied Consent Statement or Intoximeter printout which were authenticated by the deputy and admitted into the record at the DMV hearing. Nonetheless, the lower court's order contains an explanation as to why the court determined that the Intoximeter printout had to be disregarded. The court found that Appellee had filed a timely challenge to the Intoximeter results and by so doing prevented automatic admission of the results of the test into evidence.[7] However, the record does not reflect that Appellee actually raised any challenge to the Intoximeter test. The only thing in the record that Appellee filed regarding the Intoximeter test was a notice of intent to challenge the test results. The filing of this notice simply negated the presumption that the document would be considered as stipulated by the parties, thus leaving the matter open for challenge at the hearing. 91 C.S.R. 1 § 3.4.2; W.Va.Code § 17C-5A-2(e). Our review of the record shows that Appellee neglected to follow through on raising any challenge to the Intoximeter resultshe never pointed to any particular concern, problem or irregularity regarding the administration of the Intoximeter test or performance of the equipment. It is clear from the transcript of the DMV hearing that no cross-examination was conducted of the deputy about his qualifications for administering the Intoximeter, and no evidence was offered refuting the reliability of the Intoximeter results due to inadequate preparation by the deputy or malfunction of the equipment.
It is noteworthy that DMV's final order of revocation does not expressly indicate reliance on the Intoximeter results in order to reach the conclusion that Appellee was driving under the influence. Although West Virginia Code § 17C-5A-1(c) requires that where a secondary chemical test has been *645 administered the Commissioner must consider the results of that test in making the revocation decision, but the statute does not require the Commissioner to actually rely on such test results to determine whether the act of driving under the influence occurred. In instances of administrative license revocation, our decisions have clearly stated that there is no statutory requirement that proof of a motorist driving under the influence of alcohol be established by secondary chemical test results. See Syl. Pt. 1, Albrecht v. State, 173 W.Va. 268, 314 S.E.2d 859 (1984); Syl. Pt. 4, Coll v. Cline. What we have consistently held is that
[w]here there is evidence reflecting that a driver was operating a motor vehicle upon a public street or highway, exhibited symptoms of intoxication, and had consumed alcoholic beverages, this is sufficient proof under a preponderance of the evidence standard to warrant the administrative revocation of his driver's license for driving under the influence of alcohol. Syllabus Point 2, Albrecht v. State, 173 W.Va. 268, 314 S.E.2d 859 (1984). Syllabus Point 2, Carte v. Cline, 200 W.Va. 162, 488 S.E.2d 437 (1997).
Syl. Pt. 4, Lowe v. Cicchirillo, 223 W.Va. 175, 672 S.E.2d 311 (2008).
Appellee claims, nonetheless, that the lower court's reversal of the revocation order was proper because the officer's testimony did not establish any of the essential elements necessary to prove that he was driving a motor vehicle while under the influence of alcohol. He maintains that documentary evidence standing alone cannot uphold the license revocation pursuant to the holding of this Court in Ours v. West Virginia Department of Motor Vehicles, 173 W.Va. 376, 315 S.E.2d 634 (1984). Appellee's reliance on Ours is misplaced. We concluded in Ours[8] that documentary evidence could not be the sole source upon which the DMV Commissioner based a decision under the circumstances in that case. The ruling was made strictly in the context of a particular financial responsibility statutea statute which was subsequently repealed by the Legislature in 1988. Ours was not decided with regard to statutes governing administrative procedures for revoking drivers' licenses for DUI and hence is inapplicable to the case currently before us. Even if we were to find the Ours holding applicable to revocation hearings under Chapter 17A, Article 5A of the West Virginia Code, it is clear from the final revocation order in this case that the Commissioner relied on more than documentary evidence to reach the conclusion that Appellee drove a motor vehicle while under the influence of alcohol.[9] Furthermore, it is readily apparent from the officer's testimony that his statements verified various facts in the documents which had been introduced into evidence.[10]
DMV's final assignment of error regards the lower court finding that there was no evidence, testimonial or documentary, that established Appellee had driven a car on the night of the accident. DMV admits that it is clear from the record that the deputy came on the scene after the accident had occurred and Appellee was not in the car when the deputy arrived. There also is no indication *646 in the record that there were any witnesses to the accident. DMV maintains, however, that it is not necessary for an arresting officer to have observed someone operating a motor vehicle in order to charge someone with driving under the influence. We agree.
This Court has recognized that statutory administrative procedures for revoking a driver's license for DUI are not limited to instances where an officer sees a person operating a vehicle while under the influence. Our holding in syllabus point three of Carte v. Cline, 200 W.Va. 162, 488 S.E.2d 437 (1997), specifically states that:
W.Va.Code § 17C-5A-1a(a) (1994)[11] does not require that a police officer actually see or observe a person move, drive, or operate a motor vehicle while the officer is physically present before the officer can charge that person with DUI under this statute, so long as all the surrounding circumstances indicate the vehicle could not otherwise be located where it is unless it was driven there by that person.
In the case now before us, the hearing examiner was presented with evidence which showed that the deputy had reasonable grounds to believe that Appellee was the driver of the vehicle involved in the February 19, 2008, accident. See, Syl. Pt. 3, Cain v. West Virginia Division of Motor Vehicles, ___ W.Va. ___, 694 S.E.2d 309 (2010). It was established in the record that Appellee owned the vehicle and that the deputy came upon Appellee walking unsteadily along the berm of the road on the opposite side of the guardrail from where the car rested. Appellee was compliant during the investigation process and provided the deputy with his driver's license and vehicle registration information. Moreover, no one else was discovered at the scene of the accident and there was no evidence offered that someone else was driving the vehicle on the night of the accident. Significantly, these facts were not contested at the administrative hearing. It is reasonable to conclude under these circumstances that Appellee was the driver of the vehicle involved in the accident.
As related at the outset of our discussion, the lower court reversed DMV's final order of revocation in this case on the grounds that the revocation was clearly wrong in view of the evidence. However, the lower court's view of the evidence revealed a preference for testimonial evidence over documentary evidence. Our law recognizes no such distinction in the context of drivers' license revocation proceedings. The DMV hearing examiner was presented with evidence that on the night of the accident, Appellee was found walking along the same side of a road where his car was found. The car came to rest along the side of the road after going over a guardrail. The record further established that Appellee was unsteady on his feet when the deputy approached him and that the deputy observed Appellee's speech was slurred and his eyes were bloodshot and glassy. In addition, the evidence reveals that Appellee was given two field sobriety tests, the HGN test and the one-leg stand test. The results from these tests were recorded by the deputy, showing that Appellee had failed in his performance. We find that these facts provide sufficient evidence to support the conclusion that Appellee was driving a motor vehicle while under the influence of alcohol, with or without the Intoximeter results, and thus represent an adequate basis for the Commissioner to revoke Appellee's driver's license. Consequently, we reverse the February 12, 2009, order of the Circuit Court of Marshall County.
IV. Conclusion
Based upon the foregoing, the February 12, 2009, final order of the Circuit Court of Marshall County is reversed, and the September 22, 2008, Final Order of the Commissioner of the West Virginia Division of Motor is reinstated.
Reversed.
NOTES
[1] Joseph Cicchirillo was the DMV Commissioner when this action was initiated. Joe E. Miller is the current DMV Commissioner.
[2] The record reflects that the secondary chemical test recognized in Marshall County is the Intoximeter EC/IR II.
[3] See W.Va.Code § 17C-5A-1(b) (reports and tests law-enforcement officers investigating DUI offenses are required to file with DMV).
[4] The "Personal Contact" portion of the DUI Information Sheet notes that Appellee stated to the deputy, "Sir, I done drank too much."
[5] As reflected in the record certified with the present appeal, the DMV supplied the circuit court with the record the Commissioner relied on to issue the final revocation order. The following documents were certified to the circuit court by DMV: September 22, 2008, Initial Order of Revocation for DUI; completed DUI Hearing Request Form; Letter from Appellee's attorney informing DMV of his representation; scheduling notices for the DMV hearing; list of agencies which designated the Intoximeter EC/IR II as a secondary chemical test; Bureau of Public Health certification of the deputy's training and certification for administering the Intoximeter EC/IR II; Intoximeter printout; DUI Information Sheet; Implied Consent Statement; DMV computer printout of Appellee's driver history with suspension data; transcript of the DMV hearing and Final Order of Revocation for DUI.
[6] See 91 C.S.R. 1 § 3.4.2 (providing that at DMV revocation hearings unchallenged results of a secondary chemical test are considered stipulated for evidentiary purposes.)
[7] Even if the Intoximeter printout were inadmissible, proof of being under the influence of alcohol could be established in other ways. License revocation for DUI pursuant to West Virginia Code § 17C-5A-1(c) is not limited to instances when there is proof that a person failed a secondary chemical test. See Syl. Pt. 1, Albrecht v. State, 173 W.Va. 268, 314 S.E.2d 859 (1984); Syl. Pt. 4, Coll v. Cline, 202 W.Va. 599, 505 S.E.2d 662 (1998).
[8] Syllabus point one of Ours in its entirety reads as follows:
Reports prepared by a police officer investigating an automobile accident and reports prepared by persons involved in such accident may not be the sole evidence upon which the Commissioner of the Department of Motor Vehicles bases a determination, after a suspension hearing conducted pursuant to W.Va. Code, 17D-3-15 [1972] that there is a "reasonable possibility of judgment" against a driver or owner of a vehicle involved in the accident and from whom security for that accident has been required pursuant to the provisions of chapter 17D, article 3 of the West Virginia Code.
[9] The DMV final order expressly indicates:
[I]t is determined the record taken in its entirety demonstrates the Respondent elected not to present a defense supported by sufficient evidence to rebut the presumption created by the DUI Information Sheet and testimony of the Arresting Officer. As a result, after due consideration of the evidence presented, the record supports a finding by a preponderance of the evidence that the Respondent operated a motor vehicle in this State while under the influence of alcohol.
[10] The substantive testimony of the deputy is recited at pp. ___ - ___, 694 S.E.2d at pp. 641-42, supra.
[11] Although West Virginia Code § 17C-5A-1a was subsequently amended in 2004, those amendments have no bearing on the conclusion reached in syllabus point three of Carte. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315914/ | 694 S.E.2d 168 (2010)
BUTLER
v.
The STATE.
No. A10A0736.
Court of Appeals of Georgia.
April 7, 2010.
*169 Garrett, Gilliard & Saul, Michael T. Saul, Augusta, for appellant.
Ashley Wright, Dist. Atty., Charles R. Sheppard, Asst. Dist. Atty., for appellee.
MIKELL, Judge.
Jennifer Butler was charged by accusation with driving under the influence of alcohol to the extent she was a less safe driver (DUI), in violation of OCGA § 40-6-391(a)(1). Butler filed a motion to suppress/motion in limine, challenging the lawfulness of the stop. After the trial court denied her motion, Butler agreed to a bench trial, at which the officer's testimony at the motion to suppress hearing was admitted by stipulation. Butler offered no additional evidence during the bench trial. She was convicted of DUI and sentenced to 12 months, the first 48 hours to be served in confinement and the remainder on probation, a $500 fine, 40 hours of community service, and completion of a risk reduction course and clinical evaluation. On appeal, Butler challenges the denial of her motion to suppress/motion in limine. That motion was premised on Butler's contention that the officer did not have a reasonable, articulable *170 suspicion justifying a Terry[1] stop of Butler's vehicle. The trial court, after hearing the officer's testimony, found that no Terry stop had occurred and the contact between officer and citizen was a "first-tier stop," which did not require articulable suspicion. We agree and affirm Butler's conviction.
In reviewing a trial court's ruling denying a motion to suppress or in limine, the following three principles apply:
First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court's findings and judgment.[2]
Because there was testimonial evidence in this case, we do not apply a de novo standard of review.[3]
At the motion hearing, Staff Sergeant Thomas Harper of the Columbia County Sheriff's Office testified that on October 13, 2008, he was dispatched in response to a 911 call concerning a domestic dispute at 921 Napiers Post Drive. As Harper approached, he saw a gray car pull out of the driveway at that address and come up the road. Harper rolled down his window, stuck his arm out, and waved at the car. The car stopped, and Harper asked the driver, Butler, if she had just pulled out of the driveway of 921 Napiers Post. She replied that she had. Harper testified that at this point,
I was trying to investigate a domestic dispute. I didn't know if [Butler] was a suspect that was involved in the domestic dispute or if she happened to be just company that was there and happened to leave and didn't know anything about it so I asked her point blank. I said are youwe got a call for a domestic dispute were you involved and she said, yeah. I said do you mind turning around, let's go back and get to the bottom of it. She said, no, I don't mind at all. So she turned around and went back to the house.
Harper testified that at this point, Butler was not in custody.
After Butler drove back to the house, Harper went inside with her to investigate the domestic call. During his conversation with her, he observed that her speech was slurred, her face was flushed, and her eyes were bloodshot; and he could detect an odor of alcohol coming from her person. Butler admitted to Harper that she had been drinking. Butler was subsequently arrested and charged with DUI. Butler appeals from her conviction for DUI, contending that Harper's stop of her vehicle was a second-tier stop unsupported by reasonable, articulable suspicion, and that the trial court therefore erred in denying her motion to suppress. We find Butler's contention to be without merit.
"At least three types of police-citizen encounters exist: verbal communications involving no coercion or detention; brief `stops' or `seizures' that require reasonable suspicion; and `arrests,' which can only be supported by probable cause."[4] The issue before us in this case is whether the officer's action in flagging down Butler's moving vehicle constitutes an encounter of the first or the second type.
A first-tier encounter never intrudes upon any constitutionally protected interest, since the purpose of the Fourth Amendment is not to eliminate all contact between police and citizens, but simply to prevent arbitrary and oppressive police interference with the privacy and personal security of individual citizens. On the other *171 hand, a second-tier encounter may violate the Fourth Amendment if the officer briefly "stops" or "seizes" a citizen without an articulable suspicion. Articulable suspicion requires a particularized and objective basis for suspecting that a citizen is involved in criminal activity. Moreover, a "seizure" within the meaning of the Fourth Amendment only occurs when, in view of all the circumstances surrounding the incident, a reasonable person believes that he is not free to leave.[5]
Ordinarily, "[t]he stop of a moving vehicle in order to question the occupant[ ] is an investigative detention pursuant to Terry v. Ohio,"[6] that is, a second-tier stop, which "must be justified by specific and articulable facts which . . . reasonably warrant [the] intrusion."[7] Although Butler's car was in motion when Harper flagged it down, we do not find that this circumstance automatically raises the encounter to that of a "stop" or "seizure" requiring reasonable, articulable suspicion. The evidence in the record supports the trial court's conclusion that no Terry-type stop occurred in this case. The vehicle driven by Butler had just exited the address called in on a domestic dispute; the officer waved her to a stop and asked her if she had, in fact, come from that address; when she replied in the affirmative, he then asked if she was involved in the domestic dispute; when she again answered in the affirmative, he asked her if she would mind turning around. She consented to do so.
There was no evidence that Harper created the impression that Butler could not leave.[8] There was no evidence that his lights were flashing or that his weapon was drawn.[9] There was no evidence that Harper yelled at her,[10] that he forcibly opened her car door,[11] or that he prevented her from leaving the area.[12] Indeed, the record reflects that she was given the choice to leave or to return to the house; thus, she "was free to refuse the request and leave the scene."[13] She voluntarily chose to return.
Butler contends that she was not free to leave the scene by reason of OCGA § 40-6-395(a), which provides that "[i]t shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop." However, this statute has no application in the case before us. As the officer's testimony makes clear, Butler was free to leave at any time while she was in her car conversing with the officer; there was no "pursuit" involved here.
As the evidence showed no coercion or detention by the officer,[14] the trial court had grounds to find that this was not a "stop." Thus, the court correctly held that it was a first-tier encounter that did not require articulable *172 suspicion. As some evidence supported the trial court's ruling, it is affirmed.[15]
Judgment affirmed.
SMITH, P.J., and ADAMS, J., concur.
NOTES
[1] Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
[2] (Citations and punctuation omitted; emphasis in original.) Tate v. State, 264 Ga. 53, 54(1), 440 S.E.2d 646 (1994).
[3] See State v. Guyton, 295 Ga.App. 786, 787, 673 S.E.2d 290 (2009).
[4] (Citation omitted.) Brittian v. State, 257 Ga. App. 729, 731, 572 S.E.2d 76 (2002).
[5] (Citations omitted.) Id.
[6] Holden v. State, 241 Ga.App. 524, 525, 527 S.E.2d 237 (1999), citing Terry v. Ohio, supra.
[7] (Citation omitted.) Holden, supra.
[8] See Carrera v. State, 261 Ga.App. 832, 834, 584 S.E.2d 2 (2003) (police approached defendant's parked car but did not give impression that defendant could not leave); State v. Kaylor, 234 Ga.App. 495, 497, 507 S.E.2d 233 (1998) (first-tier encounter where officer did not create impression that defendant could not leave, after officer approached defendant standing outside his parked car).
[9] See Carrera, supra (first-tier encounter where officers approached without blue lights flashing or weapons drawn).
[10] Compare State v. Causey, 246 Ga.App. 829, 832(1)(a), 540 S.E.2d 696 (2000) (stop of defendant's moving vehicle was a second-tier, not a first-tier, encounter where officer held out his hand and "yelled" for defendant to stop).
[11] Compare Smith v. State, 288 Ga.App. 87, 88, 653 S.E.2d 510 (2007) (officer forcibly opened defendant's car door, thus physically restraining defendant's movement and elevating stop beyond first tier).
[12] Compare Peters v. State, 242 Ga.App. 816, 817(1), 531 S.E.2d 386 (2000) (encounter was second-tier where officers verbally commanded defendant to stop and prevented him from entering his parked car).
[13] (Citation omitted.) Voyles v. State, 237 Ga. App. 886, 887(1), 517 S.E.2d 113 (1999) (where defendant could have refused officer's request to search her car and was free to leave the scene, encounter was of first tier).
[14] See Carrera, supra.
[15] See Blankenship v. State, 301 Ga.App. 602, 605(2)(b), 688 S.E.2d 395 (2009). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315930/ | IN THE MATTER OF: M.W.
No. COA09-941.
Court of Appeals of North Carolina.
Filed May 18, 2010.
Attorney General Roy Cooper, by Assistant Attorney General Janette Soles Nelson, for the State.
Geeta Kapur for juvenile-appellant.
UNPUBLISHED OPINION
ROBERT N. HUNTER, JR., Judge.
Juvenile appeals from a disposition order imposing level 1 and 2 punishment following his adjudication on 18 December 2008 of delinquency for commission of the offense of possession of stolen property. Juvenile also appeals through the same written notice of appeal an adjudication order entered 13 August 2008 adjudicating juvenile delinquent for the offense of injury to personal property. Juvenile contends the trial court lacked subject matter jurisdiction to enter the 13 August 2008 adjudication order.
Before addressing the merits of the appeal, we address the State's argument that juvenile failed to give timely notice of appeal. Notice of appeal in a juvenile action is governed by N.C. Gen. Stat. § 7B-2602, which provides:
Upon motion of a proper party as defined in G.S. 7B-2604, review of any final order of the court in a juvenile matter under this Article shall be before the Court of Appeals. Notice of appeal shall be given in open court at the time of the hearing or in writing within 10 days after entry of the order. However, if no disposition is made within 60 days after entry of the order, written notice of appeal may be given within 70 days after such entry.
N.C. Gen. Stat. § 7B-2602 (2009). An appealable final order includes "[a]ny order of disposition after an adjudication that a juvenile is delinquent or undisciplined[.]" N.C. Gen. Stat. § 7B-2602(3). The written notice of appeal must identify the final disposition order of which review is sought; otherwise, this Court lacks jurisdiction and the appeal will be dismissed. In re A.L., 166 N.C. App. 276, 277-78, 601 S.E.2d 538, 538-39 (2004).
The record shows that in its 13 August 2008 adjudication order, the court continued the case for disposition until 21 August 2008. When juvenile's parent failed to appear for the hearing on 21 August 2008, the court issued an order to show cause. On 24 September 2008, the court continued the disposition and show cause hearing until 22 October 2008.
Meanwhile, two new juvenile petitions were filed on 20 October 2008 accusing juvenile of possession of stolen property and resisting a law enforcement officer. At the call of the matter for hearing on 22 October 2008, juvenile argued a motion to vacate the 13 August 2008 adjudication order on the ground the court lacked subject matter jurisdiction because the petition was not filed in a timely manner. The court did not rule upon the motion to vacate but continued the motion, pending disposition and show cause hearing, and the adjudication of the new charges to 20 November 2008. After one more continuance, the court heard all pending matters on 18 December 2008. The court filed an order on 18 December 2008 adjudicating juvenile delinquent for possession of stolen property and dismissing the show cause proceeding against the parent. The court also filed a disposition order entering disposition based upon the more serious offense of misdemeanor possession of stolen property.
The State argues that because the court did not enter a disposition on the 13 August 2008 adjudication order within sixty days, notice of appeal was required to be given within seventy days after entry of the adjudication order, which would have been 22 October 2008. The State misreads the statute, as the statute provides that the appellant "may" give notice of appeal within seventy days. N.C. Gen. Stat. § 7B-2602. The statute does not mandate that notice of appeal be given prior to entry of the disposition order if the disposition order is not entered within sixty days. Even if juvenile had given notice of appeal within 70 days, the appeal would have been subject to dismissal because a final disposition order had not been entered. See In re Laney, 156 N.C. App. 639, 642, 577 S.E.2d 377, 379, disc. review denied, 357 N.C. 459, 585 S.E.2d 762 (2003)(appeal was subject to dismissal when final disposition order had not been entered at time of notice of appeal). The court entered disposition on the 13 August 2008 adjudication when it entered the 18 December 2008 disposition order. At that point a final order was entered and notice of appeal was required to be given within ten days by the terms of the statute, as was done by juvenile.
Having determined that notice of appeal was timely given, we now address the merits of the appeal. Juvenile contends that the trial court lacked subject matter jurisdiction because the petition was not timely filed. "In reviewing a question of subject matter jurisdiction, our standard of review is de novo." In re K.A.D., 187 N.C. App. 502, 503, 653 S.E.2d 427, 428 (2007). A court's lack of subject matter jurisdiction may not be waived and may be raised as an issue for the first time on appeal. In re Green, 67 N.C. App. 501, 504, 313 S.E.2d 193, 195 (1984). As required by statute, a juvenile court counselor, upon receiving a complaint concerning a juvenile, must determine within fifteen days after its receipt whether the complaint should be filed as a juvenile petition. N.C. Gen. Stat. § 7B-1703(a) (2009). The counselor must file the petition within fifteen days after receiving the complaint. N.C. Gen. Stat. § 7B-1703(b). The fifteen-day period may be extended by a maximum of fifteen days at the discretion of the chief juvenile court counselor. Id. If the petition is not timely filed, the court lacks subject matter jurisdiction. In re J.B., 186 N.C. App. 301, 303, 650 S.E.2d 457, 458 (2007).
The record shows that the complaint giving rise to the petition was made on 1 May 2008 and that the petition was filed on 29 May 2008. The transcript of the 22 October 2008 hearing shows that although a written order allowing the permitted extension of time does not appear in the court file, the court counselor's computer system indicated that the chief court counselor granted the fifteen-day extension of time permitted by the statute on 2 May 2008 due to "time constraints associated with" a high volume of cases. Therefore, we conclude the filing of the petition on 29 May 2008 was timely and the court was vested with subject matter jurisdiction.
Notwithstanding, juvenile challenges the validity of the extension granted by the chief juvenile court counselor by asserting the counselor abused his discretion. Juvenile cites In re K.W., 191 N.C. App. 812, 815, 664 S.E.2d 66, 68 (2008), for the proposition that "the chief juvenile court counselor is required to provide some indication that he or she properly exercised discretion in extending the fifteen-day period . . . and do so in a manner which allows the trial and appellate courts of this state some meaningful review of that decision." The record in K.W. failed to show, unlike here, that the chief juvenile court counselor ever granted an extension of time and hence exercised his discretion. The chief juvenile court counselor in the case at bar exercised his discretion by granting the extension of time and gave a rational reason for the exercise of his discretion, namely, time constraints due to a high volume of cases. The chief juvenile court counselor did not abuse his discretion.
The order is
Affirmed.
Judges McGEE and GEER concur.
Report per Rule 30(e). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315911/ | 694 S.E.2d 316 (2010)
HUMPHREYS
v.
The STATE.
No. S09P1428.
Supreme Court of Georgia.
March 15, 2010.
*322 Geerdes & Kim, Holly L. Geerdes, Duluth, Mitchell D. Durham, Jimmy D. Berry, Marietta, Carl P. Greenberg, Thomas H. Dunn, Atlanta, for appellant.
Patrick H. Head, Dist. Atty., Dana J. Norman, Asst. Dist. Atty., Thurbert E. Baker, Attorney General, Theresa M. Schiefer, Assistant Attorney General, Richard A Malone, Atlanta, for appellee.
NAHMIAS, Justice.
A jury convicted Stacey Ian Humphreys of two counts of murder and related offenses. After finding beyond a reasonable doubt multiple statutory aggravating circumstances, the jury recommended death sentences for the murder convictions, and the trial court entered judgment accordingly. See OCGA §§ 17-10-30, 17-10-31(a). Humphreys's motion for new trial was denied, and he appeals his convictions and sentences.[1] For the reasons set forth below, we affirm.
Sufficiency of the Evidence
1. The evidence, construed in the light most favorable to the jury's verdicts, showed the following. At approximately 12:40 p.m. on November 3, 2003, Humphreys, a convicted felon who was still on parole, entered a home construction company's sales office located in a model home for a new subdivision in Cobb County. Cindy Williams and Lori Brown were employed there as real estate agents. Finding Ms. Williams alone in the office, Humphreys used a stolen handgun to force her to undress and to reveal the personal identification number (PIN) for her automated teller machine (ATM) card. After calling Ms. Williams's bank to learn the amount of her current balance, Humphreys tied her underwear so tightly around her neck that, when her body was discovered, her neck bore a prominent ligature mark and her tongue was protruding from her mouth, which had turned purple. While choking Ms. Williams, Humphreys forced her to get down on her hands and knees and to move into Ms. Brown's office and behind Ms. Brown's desk. Humphreys placed his handgun at Ms. Williams back and positioned a bag of balloons between the gun and her body to muffle the sound of gunshots. He then fired a shot into her back that went through her lung and heart, fired a second shot through her head, and left her face-down on her hands and knees under the desk.
Ms. Brown entered the office during or shortly after Humphreys's attack on Ms. Williams, and he attacked her too. Ms. Brown suffered a hemorrhage in her throat that was consistent with her having been choked in a headlock-type grip or having been struck in the throat. Humphreys also forced Ms. Brown to undress and to reveal her PIN, called her bank to obtain her balance, and made her kneel with her head facing the floor. Then, while standing over Ms. Brown, Humphreys fired one gunshot through her head, this time using both a bag of balloons and Ms. Brown's folded blouse to muffle the sound. He dragged her body to her desk, took both victims' driver's licenses and ATM and credit cards, and left the scene at approximately 1:30 p.m. Neither victim sustained any defensive wounds.
When the builder, whose office was located in the model home's basement, heard the *323 door chime of the security system indicating that someone had exited the sales office, he went to the sales office to meet with the agents. There he discovered Ms. Brown's body and called 911. The responding police officer discovered Ms. Williams's body.
After interviewing the builder and canvassing the neighborhood, the police released to the media descriptions of the suspect and a Dodge Durango truck seen at the sales office near the time of the crimes. In response, someone at the job site where Humphreys worked called to advise that Humphreys and his vehicle matched those descriptions and that Humphreys did not report to work on the day of the crimes. The police began to investigate Humphreys and made arrangements through his parole officer to meet with him on the morning of November 7, 2003. Humphreys skipped the meeting, however, and eluded police officers who had him under surveillance.
Humphreys was apprehended in Wisconsin the following day. Police there recovered from the console of his rental vehicle a Ruger 9-millimeter pistol, which was determined to be the murder weapon. Swabbings from that gun revealed blood containing Ms. Williams's DNA. A stain on the driver-side floormat of Humphreys's Durango was determined to be blood containing Ms. Brown's DNA.
After the murders, the victims' ATM cards were used to withdraw over $3,000 from their accounts. Two days after the murders, Humphreys deposited $1,000 into his account, and he had approximately $800 in cash in his possession when he was arrested. Humphreys claimed in a statement to the police that he did not remember his actions at the time of the crimes. However, when asked why he fled, he said: "I know I did it. I know it just as well as I know my own name." He also told the police that he had recently taken out some high-interest "payday" loans and that he "got over [his] head with that stinking truck."
The evidence presented at trial and summarized above was easily sufficient for a rational jury to find Humphreys guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
Pre-Trial Issues
2. Humphreys asserts that the trial court erred in failing to quash the indictment against him because the jury administrator improperly and arbitrarily excused potential grand jurors, thus vitiating the array.[2]
(a) The jury administrator's authority. Humphreys contends that the jury administrator was without authority to grant excusals and deferments, because the 1984 standing order adopted by the Cobb County Superior Court authorizing her to do so was repealed by the adoption of the Uniform Rules of Superior Courts and was never readopted. Humphreys asserts that the Uniform Rules were adopted in 1994. In fact, the Uniform Rules were originally adopted by order of this Court in accordance with the directive of Art. VI, Sec. IX, Par. I, of the 1983 Constitution of the State of Georgia and became effective on July 1, 1985. See 253 Ga. 800, 800 (1985).
While Rule 1.1 of the original Uniform Rules provided that "[a]ll local rules of superior courts in effect as of the effective date of these rules are hereby repealed[,]" Rule 1.2 provided that, "[t]he above provisions notwithstanding, each superior court may retain or adopt without specific Supreme Court approval... an order establishing guidelines governing excuses from jury duty pursuant *324 to OCGA § 15-12-1.0[sic]."[3] OCGA § 15-12-1(a)(1) provides in relevant part that any person who shows "good cause why he or she should be exempt from jury duty may be excused by ... [a] person who has been duly appointed by order of the chief judge to excuse jurors" where "guidelines governing excuses" have been established by court order. The Code section further provides for the excusal or deferment of specifically described persons. See OCGA § 15-12-1(a)(2) through (c)(2).
Among the evidence presented at the pre-trial hearing were two orders signed by the chief judge of the Cobb County Superior Court. The first order, which was entered in April of 1984, "appointed and empowered" the court administrator and the deputy court administrator/jury manager "to receive requests for jury deferments and make determinations as to deferments and excusals" in accordance with guidelines contained within the order. While the order does not cite OCGA § 15-12-1, it tracks that statute's language. The second order, which was entered after the original adoption of the Uniform Rules "[p]ursuant to Rule 1.2," provides for the retention of "the local court rules establishing guidelines governing excuses from jury duty pursuant to OCGA 15-12-1.0." That order became effective on July 1, 1985.
In 1994, Rule 1.1 was amended to provide that "[a]ll local rules of the superior courts," except those relating to jury pool selection, would expire effective December 31, 1994. However, Rule 1.2 continued to provide that "[t]he above provisions notwithstanding, each superior court may retain" without specific approval of this Court "an order establishing guidelines governing excuses from jury duty." See Rule 1.2(D).[4] There is no evidence that the Cobb County Superior Court did not retain its 1984 and 1985 juror excusal and deferment orders, and indeed we are aware of no authority for the proposition that such orders automatically become invalid when the Uniform Rules are amended. See English v. State, 290 Ga.App. 378, 382(3)(a), 659 S.E.2d 783 (2008) (noting lack of authority for the proposition "that such an order becomes invalid when the chief judge who signed it retires"). We therefore reject Humphreys's contention that the jury administrator was without authority to excuse or defer potential grand jurors for his case.
(b) The jury administrator's grounds for excusals. We also do not find reversible error in the manner in which potential grand jurors were excused from service. At the pre-trial hearing, the jury administrator testified that she summoned 65 potential grand jurors for the term of court during which Humphreys was indicted, that seven of those potential jurors were excused, and that two potential jurors were deferred. A review of the testimony and evidence presented at the hearing shows that the jury administrator investigated the juror excusals and deferments and that they were authorized under the guidelines in the 1984 standing order, under statutory provisions, or under both. While the jury administrator did not obtain a notarized affidavit in every situation, she did obtain written confirmation in each case. Under our precedent, there clearly was not "such disregard of the essential and substantial provisions of the statute as would vitiate the array[ ]." Franklin v. State, 245 Ga. 141, 145-147(1), 263 S.E.2d 666 (1980) (finding no reversible error where court administrator and his secretary excused potential grand jurors for statutory and hardship reasons based on telephone calls without conducting investigations into excuses).
(c) Sixth Amendment claim. Humphreys also claims that his Sixth Amendment fair cross-section right was violated, because eight of the nine excusals or deferments were granted to female potential jurors. The fair cross-section requirement does not require that juries mirror a community, and a state may provide reasonable exemptions for its jurors so long as the lists *325 from which the jurors are drawn are representative of the community. Taylor v. Louisiana, 419 U.S. 522, 538(VII), 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975). See also Sanders v. State, 237 Ga. 858, 858(1), 230 S.E.2d 291 (1976) (applying this doctrine to grand jurors).
The Constitution requires only that the State not deliberately and systematically exclude identifiable and distinct groups from jury lists; hence, in order to prevail on a constitutional challenge to the composition of the grand and petit juries in his case, a criminal defendant must establish prima facie that a distinct and identifiable group in the community is substantially under-represented on the jury venire.
Torres v. State, 272 Ga. 389, 391(4), 529 S.E.2d 883 (2000).
Humphreys offered nothing to contradict the evidence in the record showing that the absolute disparity between females in the population of Cobb County and females on the grand jury list was 0.06 percent. Nor did he present any evidence purporting to show the effect the excusals and deferments of eight females had on the final grand jury list. Consequently, Humphreys has failed to carry his burden of establishing a prima facie case of grand jury discrimination. See Sanders v. State, 237 Ga. at 858(1), 230 S.E.2d 291 (2% differential in women and 2.5% differential in black persons are "too slight to establish a prima facie case of purposeful discrimination").
3. Humphreys contends that the trial court erred in certifying the grand jury certificate pursuant to the Unified Appeal Procedure (U.A.P.), because white persons and Hispanic persons were allegedly under-represented on the Cobb County grand jury list.
(a) U.A.P. claim. The U.A.P. prohibits a variation between the community and the grand jury list of five percent or more of any cognizable group. Humphreys contends that we should reverse his death sentences based on a violation of this rule. See U.A.P. II(E). We have held, however, that it is beyond this Court's power to require the quashing of an indictment that was procured in a manner consistent with Georgia statutes and the state and federal constitutions, even if under-representation of a cognizable group on the grand jury list violates the U.A.P.'s five percent limit. See Edwards v. State, 281 Ga. 108, 110, 636 S.E.2d 508 (2006). Humphreys has not presented any reason to reconsider this precedent, and we see no basis for reversing a death sentence on this ground when we would not require the quashing of the underlying indictment.
(b) Sixth Amendment claim. Humphreys also contends that the trial court erred in denying his Sixth Amendment challenge to the grand jury array on the grounds that white persons and Hispanic persons were under-represented on the Cobb County grand jury list. In order to show a Sixth Amendment violation, Humphreys must show the group's cognizability, under-representation, and systematic exclusion. See Morrow v. State, 272 Ga. 691, 692(1), 532 S.E.2d 78 (2000). Because we find that Humphreys failed to show any actual under-representation of either group, we need not address the other requirements of his claim. See Rice v. State, 281 Ga. 149, 149(1), 635 S.E.2d 707 (2006).
(i) Hispanic persons. Humphreys urges this Court to reconsider its use of citizenship statistics in reviewing the alleged under-representation of Hispanic persons on grand juries. See Smith v. State, 275 Ga. 715, 721(4), 571 S.E.2d 740 (2002). We decline that request, but in any event, he has failed to show constitutionally significant under-representation. According to his own expert's testimony, the grand jury pool had an absolute disparity of less than five percent both before and after adjusting to account for the citizenship rate of Hispanic persons. This is well within constitutional requirements. See Cook v. State, 255 Ga. 565, 571(11), 340 S.E.2d 843 (1986) (holding that, in general, absolute disparities under ten percent satisfy constitutional requirements).
Humphreys also urges this Court to take both absolute and comparative disparity into account when considering smaller population groups such as Hispanic persons. However, we have consistently rejected the use of comparative disparity, see Al-Amin v. State, 278 Ga. 74, 79(4), 597 S.E.2d 332 (2004); Cook, *326 255 Ga. at 571-574(11), 340 S.E.2d 843, and we see no reason to reach a contrary conclusion in this case. The trial court did not err in denying Humphreys's challenge on this ground.
(ii) White persons. We need not address Humphreys's contention that the trial court erred in finding that the jury commissioners used the correct United States census figure in determining the total population for white persons in Cobb County. Even the 7.06 percent disparity that he alleges would be insufficient to establish a constitutional violation. Cook, 255 Ga. at 571(11), 340 S.E.2d 843.
Jury Selection Issues
4. Humphreys asserts that the trial court erroneously disqualified for cause a prospective juror who was serving a probationary sentence for two felonies under the First Offender Act. See OCGA § 42-8-60 et seq. Contrary to the State's contention, Humphreys has not waived this claim. Humphreys opposed the State's motion to have the prospective juror excused for cause, and, once the trial court issued a ruling, he did not need to "further object or `except' to the trial court's ruling in order to preserve the issue for appeal." Davie v. State, 265 Ga. 800, 802(2), 463 S.E.2d 112 (1995).
The question is whether a prospective petit juror serving a sentence under the First Offender Act has been "convicted" within the meaning of OCGA § 15-12-163(b)(5), which provides that, in jury trials in felony cases, either the State or the accused may object to the seating of a juror who "has been convicted of a felony in a federal court or any court of a state of the United States and the juror's civil rights have not been restored."[5] This appears to be a question of first impression for the appellate courts of this State.
Prior to the enactment of this statutory provision, "[i]n disqualifying jurors for offenses involving moral turpitude, our courts follow[ed] common-law principles." Turnipseed v. State, 54 Ga.App. 442, 443, 188 S.E. 260 (1936). Under the common law, a person who was found guilty of a felony or other offense involving moral turpitude was considered "`infamous,' and, by reason of that infamy, he was disqualified from jury service," because "at common law one accused of crime was entitled to a trial by twelve upright [jurors]." Williams v. State, 12 Ga. App. 337, 338-339, 77 S.E. 189 (1913). Under both the common law and this State's case law, however, "in order to disqualify a juror by reason of his conviction of a crime involving moral turpitude, his guilt must be shown by a judgment." Turnipseed, 54 Ga. App. at 443, 188 S.E. 260. "`[I]t is the judgment that disqualifies.'... [H]ence the use of the word `conviction' as denoting final judgment." Id. (citation omitted). Accord Turnipseed v. State, 53 Ga.App. 194, 185 S.E. 403 (1936) (holding that a juror was not incompetent to serve while his petition for certiorari to review his conviction was pending).
"The common-law rules are still of force and effect in this State, except where they have `been changed by express statutory enactment or by necessary implication.'" Fortner v. Town of Register, 278 Ga. 625, 626(1), 604 S.E.2d 175 (2004) (citation omitted). We see no indication that the General Assembly intended to change the common law in this regard. Instead, over a quarter-century before the legislature amended OCGA § 15-12-163 to expressly provide for the excusal for cause of potential jurors who have been "convicted" of a felony, see Ga. L. 1995, p. 1292, § 11, the General Assembly defined the term "conviction" in the Criminal Code as "a final judgment of conviction entered upon a verdict or finding of guilty of a crime or upon a plea of guilty." See Ga. L. 1968, p. 1249, § 1 (emphasis supplied). This definition remains the same today. See OCGA § 16-1-3(4).
The First Offender Act permits the trial court, "[u]pon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt," to place the first offender *327 on probation or to sentence the first offender to a term of confinement "without entering a judgment of guilt." OCGA § 42-8-60(a) (emphasis supplied).[6] Accordingly, we have held that "[a] first offender's guilty plea does not constitute a `conviction' as that term is defined in the Criminal Code of Georgia." Davis v. State, 269 Ga. 276, 277(2), 496 S.E.2d 699 (1998). Furthermore, a first-offender probationer is automatically discharged upon the successful completion of the terms of the sentence without the necessity of any subsequent certification of that successful completion in the records of the trial court. See State v. Mills, 268 Ga. 873, 875, 495 S.E.2d 1 (1998); OCGA § 42-8-62(a).
While the legislature has amended the Code to restrict a first offender's liberties in certain respects, see OCGA § 16-11-131(b) (prohibiting first offenders from possessing a firearm); OCGA § 42-1-12(a)(8) (requiring first offenders charged with sex crimes and certain crimes against children to register as sexual offenders), it has not done so with respect to a first offender's eligibility for jury service. For these reasons, we conclude that a person who has been placed on probation or sentenced to a term of confinement pursuant to the First Offender Act is not incompetent to serve as a petit juror under OCGA § 15-12-163(b)(5) either before or after being discharged without an adjudication of guilt. The trial court therefore erred in disqualifying for cause the prospective juror solely on the ground that she was a first offender on probation.
Nevertheless, "`[t]he erroneous allowing of a challenge for cause affords no ground of complaint if a competent and unbiased jury is finally selected.'" Wells v. State, 261 Ga. 282, 282-283(2), 404 S.E.2d 106 (1991) (citation omitted). Compare Harris v. State, 255 Ga. 464, 464(2), 339 S.E.2d 712 (1986) (erroneous denial of a challenge for cause, which allows an incompetent juror to serve, requires reversal without a showing of actual prejudice). Because Humphreys has not shown that the 12 jurors who actually were selected to decide his case were incompetent or biased, this error is not a basis for reversal.
5. Humphreys argues that the trial court erred by refusing to excuse six prospective jurors because they were biased in favor of the death penalty. Conversely, Humphreys complains that the trial court erred by excusing three prospective jurors based on the court's determination that they evidenced an inability to consider a death sentence. Humphreys cites Allen v. State, 248 Ga. 676, 286 S.E.2d 3 (1982), for the proposition that a prospective juror "must make it `unmistakably clear' that he or she would automatically vote against the death penalty in any and all cases" in order to be disqualified. Id. at 679(2), 286 S.E.2d 3 (quoting Witherspoon v. Illinois, 391 U.S. 510, 516 n. 9, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968)). His reliance on Allen is misplaced.
Since Allen and Witherspoon were decided, this Court, following the United States Supreme Court, has explained that "[t]he proper standard for determining the disqualification of a prospective juror based upon his views on capital punishment `is whether the juror's views would "`prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'"'" Greene v. State, 268 Ga. 47, 48, 485 S.E.2d 741 (1997) (quoting Wainwright v. Witt, 469 U.S. 412, 424(II), 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985) (citation omitted)). "This standard does not require that a juror's bias be proved with `unmistakable clarity.'" Id. (citation omitted). Instead,
[t]he relevant inquiry on appeal is whether the trial court's finding that a prospective juror is disqualified is supported by the record as a whole. An appellate court ... must pay deference to the trial court's determination. This deference encompasses the trial court's resolution of any equivocations and conflicts in the prospective jurors' responses on voir dire. Whether to strike a juror for cause is within the discretion *328 of the trial court and the trial court's rulings are proper absent some manifest abuse of discretion.
Id. at 49-50, 485 S.E.2d 741 (citations omitted). "The same standard applies to a court's decision to qualify a prospective juror over defendant's objection." Tollette v. State, 280 Ga. 100, 102(3), 621 S.E.2d 742 (2005).
A review of the record shows that the responses of prospective jurors Weaver, Hudson, and O'Quinn regarding their ability to impose a death sentence were equivocal and contradictory. The trial court was authorized to find from the totality of their responses that they could not meaningfully consider all three sentencing options and, accordingly, that they would be substantially impaired in the performance of their duties as jurors in a capital case. See Greene, 268 Ga. at 50, 485 S.E.2d 741.
By contrast, a review of the voir dire transcript of prospective jurors McCollum, Goodbread, Buckley, Parker, Burkey, and Beckham shows that, while each of these jurors expressed a leaning toward the death penalty, they all stated that they would listen to and consider mitigating evidence and that they could give fair consideration to and vote for each of the three sentencing options. We therefore conclude that the trial court did not abuse its discretion by denying Humphreys's motions to disqualify these six prospective jurors. See Tollette, 280 Ga. at 102(3), 621 S.E.2d 742. See also Pace v. State, 271 Ga. 829, 834(7), 524 S.E.2d 490 (1999) (holding that a prospective juror is not subject to excusal for cause for merely leaning toward a death sentence).
Guilt/Innocence Phase Issues
6. Humphreys contends that, after a hearing pursuant to Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), the trial court erred by failing to exclude his statement to police officers made while he was in custody, because the State failed to show that he made a knowing and intelligent waiver of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
In ruling on the admissibility of an in-custody statement, a trial court must determine whether, based upon the totality of the circumstances, a preponderance of the evidence demonstrates that the statement was made freely and voluntarily. Unless clearly erroneous, a trial court's findings as to factual determinations and credibility relating to the admissibility of the defendant's statement at a Jackson v. Denno hearing will be upheld on appeal.
Harvey v. State, 274 Ga. 350, 351-352(1), 554 S.E.2d 148 (2001) (citations and punctuation omitted).
The evidence at the Jackson v. Denno hearing showed the following. On November 9, 2003, Cobb County Detectives Herman and Sears arrived at the Waukesha County, Wisconsin, Sheriff's Department, where Humphreys had been in custody for 27 hours. Waukesha County officers checked Humphreys out of the jail and escorted him to the nearby investigations office for the interview, which began shortly after 3:00 p.m. and ended at approximately 4:45 p.m. Humphreys was handcuffed and shackled at the ankles when he arrived at the interview room. Before the interview began, however, the handcuffs were removed, and Humphreys was offered something to eat and drink and an opportunity to use the restroom.
Herman testified that he introduced himself and Sears to Humphreys as officers from Cobb County, explained that they had an arrest warrant from that county charging Humphreys with two counts of murder, and told him that the detective needed to advise him of his Miranda rights. Humphreys responded by stating that he was not going to sign anything, but he continued to talk about the case. Herman then stopped Humphreys and read the Miranda warnings to him from a card that the detective carried with him. Herman asked Humphreys whether he understood the rights that had just been explained and whether, having those rights in mind, he wished to talk to the detectives. Humphreys responded affirmatively to both questions and subsequently agreed to allow the interview to be audiotaped. Thus, Herman's advising Humphreys of the Miranda rights was not recorded on the audiotape. *329 However, Humphreys twice acknowledged near the beginning of the tape that he had previously been advised of and understood his rights.
At the time of the interview, Humphreys was 30 years old and had a high school degree and additional education, as well as prior experience as a criminal defendant. Herman testified that Humphreys's general demeanor was "very sullen," explaining that "his shoulders were slumped" and "his head [was] hung." But Herman also testified that Humphreys appeared to be awake and alert, that he appeared to understand Herman's questions regarding his rights, that he did not appear to be under the influence of drugs or alcohol, and that he had no concerns about Humphreys's mental state. Herman further testified that Humphreys never indicated that he did not want to talk with the officers, that no promises or threats were made to Humphreys, and that both detectives were unarmed during the interview and did not touch Humphreys except to shake his hand at the end of the interview.
A review of the taped statement shows that Humphreys told the detectives that he was on blood pressure medicine but that he did not abuse drugs or alcohol. It also supports Herman's testimony that, although Humphreys was not crying when the interview began, he "broke down" a couple of times during his statement. The fact that Humphreys became emotional during his statement is not sufficient to render it involuntary. See Estes v. State, 224 Ga. 687, 688(2), 164 S.E.2d 108 (1968).
Nor does Humphreys's refusal to sign a Miranda form render his statement involuntary and inadmissible. Kelly v. State, 250 Ga.App. 793, 794, 553 S.E.2d 175 (2001). See also North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979) ("An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver."). It is certainly the better practice for law enforcement officers to record the reading of Miranda rights to a defendant and the subsequent waiver of those rights, particularly in a case such as this where the defendant refuses to sign a waiver form. Nevertheless, given the testimony of the detective who interviewed Humphreys and the audiotape of his statement submitted as evidence at the Jackson-Denno hearing, we cannot say that the trial court erred in finding that Humphreys was properly advised of his Miranda rights and that his statement was given voluntarily. The statement was, therefore, properly admitted at trial. See Harvey, 274 Ga. at 351-352(1), 554 S.E.2d 148.
7. Humphreys argues that the trial court erred in denying his motion to suppress evidence seized as a result of the warrantless search of the vehicle he was driving at the time of his arrest. The evidence at the motion to suppress hearing showed that, after the Cobb County police determined that Humphreys had left his home on foot on the morning of November 7, 2003, they learned that he had rented a vehicle and departed the area. Subsequently, police arranged with the U.S. Marshals Service for the issuance of a nationwide "Attempt to Locate" (ATL) lookout notice for Humphreys and his rental vehicle.
Officer Paul Schmitt of the Brookfield, Wisconsin, Police Department testified that he was on patrol when he received the lookout notice at 5:16 a.m. on November 8, 2003. The lookout was for a silver Jeep Grand Cherokee with a Budget rental car company license-applied-for or "paper" tag. It identified Humphreys by name as the driver of the Jeep, gave his date of birth, and described him as a white male, six feet three inches tall, 295 pounds, and bald. The lookout also stated that, according to the U.S. Marshals Service, Humphreys was a suspect in a double homicide in Georgia, was considered to be armed and dangerous, was possibly attempting to flee the country, was being tracked by his cellular telephone signal, and was last known to be near Schmitt's vicinity traveling on Interstate 94.
Schmitt drove to Interstate 94 to observe the passing traffic, which was light because it was an early Saturday morning. At approximately 5:30 a.m., the officer observed a silver *330 Jeep Grand Cherokee with a paper tag pass his vehicle, and he began to follow it from a distance of four to five car lengths. Schmitt notified Waukesha County communications that he was following the suspect vehicle, and other officers were dispatched to assist him. A few minutes later, the officers activated their blue lights and sirens. In response, the Jeep rapidly accelerated, leading to a 35-minute high-speed chase before Humphreys's vehicle finally crashed and he was apprehended.
Humphreys contends that the police officers' initial attempt to stop his rental vehicle pursuant to the lookout was illegal because the officers relied solely on the description of the vehicle as the basis for the stop. Humphreys asserts he was therefore justified in accelerating his vehicle and attempting to flee from the officers and that all items seized subsequent to his arrest should have been suppressed.
"A vehicle stop pursuant to a police lookout requires specific and articulable facts which, together with rational inferences drawn therefrom, reasonably warrant the intrusion." Brown v. State, 278 Ga. 724, 727(2), 609 S.E.2d 312 (2004). At the time of the attempted stop of Humphreys's vehicle, the police had a description of its make, model, color, and paper temporary rental vehicle tag. They knew that the vehicle was being tracked by a cellular telephone signal to the area and highway where it was first sighted. The light traffic during the early morning hours and the short time between the transmission of the lookout and Officer Schmitt's spotting the vehicle made it even more likely that the vehicle he saw was in fact the vehicle described in the lookout. Accordingly, the trial court did not err in finding that the police had sufficient information to provide them "with the requisite particularized basis to warrant the investigative stop." Thomason v. State, 268 Ga. 298, 301(2)(a), 486 S.E.2d 861 (1997). The officers were not required to await the commission of a traffic offense in their presence before conducting an investigative stop. See id. at 301-302(2)(a), 486 S.E.2d 861.
It is undisputed that, when the police activated their lights and sirens, Humphreys accelerated and attempted to flee, traveling at up to 110 miles per hour, driving recklessly through residential areas, running stop signs, and swerving off the road. His vehicle came to a stop only after running over multiple sets of "stop sticks" set out by law enforcement and after the police rammed the vehicle in a "pit" maneuver, pushing it into a concrete edifice in a medical center parking lot. Humphreys's commission of the offense of fleeing and attempting to elude police, during which he also violated numerous traffic laws, provided the officers with ample probable cause for his arrest. Moreover, once Humphreys was stopped, the information contained in the lookout also provided sufficient probable cause for the officers to detain him on the Cobb County charges. See Burgeson v. State, 267 Ga. 102, 105, 475 S.E.2d 580 (1996) (explaining that probable cause for arrest "can rest upon the collective knowledge of the police when there is some degree of communication between them"). Thus, the trial court did not err in finding that Humphreys's arrest was lawful.
The trial court also concluded that, because Humphreys was a recent occupant of the Jeep at the time of his arrest, the search of the vehicle's contents was valid under New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981) (holding that when police have "made a lawful custodial arrest of the occupant of an automobile, [they] may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile"). Humphreys claims that the trial court's finding was erroneous in light of the subsequent decision of the United States Supreme Court in Arizona v. Gant, 556 U.S. ___, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). In Gant, the Supreme Court significantly limited its decision in Belton by holding that police officers are authorized "to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search" or "when it is `reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle,'" which will often not be the case when the arrest is *331 for traffic violations. Id. at ____, 129 S.Ct. at 1719 (citation omitted).
We need not determine whether the search of the Jeep after Humphreys's arrest was valid under Gant, however, because it is apparent that the evidence seized from the vehicle would have been discovered during the subsequent inventory of the vehicle and that it was therefore admissible under the inevitable discovery rule. See Mathis v. State, 279 Ga. 100, 102(3)(a), 610 S.E.2d 62 (2005) (explaining that "[w]e will affirm a trial court's ruling if it is right for any reason").
The State presented uncontradicted testimony at the suppression hearing establishing that an inventory search of the Jeep was conducted in connection with its impoundment by the Waukesha County Sheriff's Office. "The state may inventory the contents of a car that has been lawfully impounded." Sams v. State, 265 Ga. 534, 535(3), 459 S.E.2d 551 (1995). The test is whether, under the circumstances, the officer's conduct in impounding the vehicle was reasonable within the meaning of the Fourth Amendment. Wright v. State, 276 Ga. 454, 461(5), 579 S.E.2d 214 (2003).
Here, Humphreys was the sole occupant of an out-of-state rental vehicle in which he was suspected of attempting to flee the country, there was a lookout for him in connection with a double homicide in a state hundreds of miles away, and he had been arrested and taken into custody after an extended high-speed chase through multiple jurisdictions. The evidence at the hearing also showed that every one of the vehicle's tires had been damaged or destroyed during the pursuit, rendering the vehicle unsafe if not impossible to drive, and that it remained at the drive-through entrance to a medical facility, where the vehicle had jumped the curb and had come to rest with its right front wheel on the sidewalk. In short, the vehicle was clearly connected to Humphreys's arrest; it was a rental vehicle in which Humphreys had been the sole occupant; and it was unsafe to drive, illegally and dangerously parked, and a hazard to traffic. Under these circumstances, the inventory search and impoundment of the Jeep were entirely reasonable and the evidence seized during the search was properly admitted. See Goodman v. State, 255 Ga. 226, 229(13), 336 S.E.2d 757 (1985) (upholding search of a defendant's automobile where he had been arrested and his car impounded pursuant to a radio lookout); Pierce v. State, 194 Ga.App. 481, 481-482(1), 391 S.E.2d 3 (1990) (upholding inventory search where the defendant, who had been arrested for driving with a suspended license, was the sole occupant of an out-of-state rental vehicle).
Sentencing Phase Issues
8. During the sentencing phase, the jury had deliberated for approximately eight hours over a period of two days when the jury foreperson sent the trial court a note stating:
We, the jury, have agreed on statutory aggravating circumstances on both counts, but not on the penalty. Currently we agreed life imprisonment with parole is not an acceptable option. We are currently unable to form a unanimous decision on death or life imprisonment without parole. Please advise.
The trial court informed the parties of the note, summarizing its contents as follows:
[The jurors have] indicated that they have reached a verdict in regard to some of the issues that have been submitted to them, but have not yet reached a decision on other issues that were submitted to them.
The court then informed counsel of its intention to instruct the jury to continue deliberations. The trial court later placed the note in the record.
(a) We find no merit to Humphreys's contention that, by its denial of defense counsel's request to disclose the contents of the note verbatim, the trial court deprived Humphreys of "a full opportunity to suggest an appropriate response." Lowery v. State, 282 Ga. 68, 76(6), 646 S.E.2d 67 (2007). The trial court's summary of the note enabled Humphreys's experienced defense counsel to infer that the jurors had agreed on at least one statutory aggravating circumstance but had not agreed as to the sentence; had the jury agreed on any other issue it was considering (the absence of a statutory aggravating circumstance *332 or the sentence), there would have been no need for further deliberations. Consequently, Humphreys was not meaningfully hindered in formulating a response. Furthermore, while Humphreys objected to the trial court's intention to instruct the jury to continue deliberations, he has not shown what different or further action he would have taken had the trial court read the note verbatim. See Carson v. State, 241 Ga. 622, 626(3), 247 S.E.2d 68 (1978) ("The burden is on the appellant to show harm as well as error.").
(b) We also find no merit to Humphreys's contention that, after receiving this note, the trial court erred in failing to discharge the jury and sentence him to life without the possibility of parole. See OCGA § 17-10-31.1(c) (requiring the trial court to impose either a sentence of life or life without parole where a death penalty sentencing jury has unanimously agreed on at least one statutory aggravating circumstance but is unable to reach a unanimous verdict as to sentence) (repealed by Ga. L. 2009, p. 223, § 6, effective April 29, 2009); Hill v. State, 250 Ga. 821, 821, 301 S.E.2d 269 (1983). Whether a jury is hopelessly deadlocked is a sensitive determination best made by the trial court that has observed the trial and the jury. It will be reversed on appeal only for an abuse of that discretion. Romine v. State, 256 Ga. 521, 525(1)(b), 350 S.E.2d 446 (1986). Here, after a lengthy trial, the jury had been deliberating for less than nine hours, and the language twice used in the note that the jurors "currently" were not able to agree indicated that deliberations were ongoing. Under the circumstances, we cannot say that the trial court abused its discretion in requiring further deliberations.
9. After being instructed to continue, the jury deliberated for about three more hours. The jury foreperson then sent a note to the trial court requesting that the jurors be allowed to rehear Humphreys's taped statement to the detectives. After listening to the statement, the jurors resumed their deliberations. About two hours later, Humphreys moved for a mistrial. The trial court denied the motion, noting that there had been no indication from the jury that it was deadlocked.
After approximately two more hours, the trial court received a note from a juror asking to be removed from the jury "[d]ue to the hostile nature of one of the jurors." After reading the note to the parties, the trial court informed counsel that it intended to give the jury a modified Allen charge. See Allen v. United States, 164 U.S. 492, 501(9), 17 S. Ct. 154, 41 L. Ed. 528 (1896). Based on this last juror communication, Humphreys renewed his motion for mistrial, which again was denied.
After reading the juror's note to the jury without identifying from whom it came, the trial court gave a modified Allen charge.[7]*333 The jury resumed its deliberations at 8:40 p.m. and retired for the evening at 10:20 p.m. After deliberating for two hours the following morning, the jury returned death sentences for the two murders.
(a) Motions for mistrial. Humphreys contends that the trial court erred in denying his requests that it find the jury deadlocked and his subsequent motions for a mistrial on that ground. Given the length of the trial in relation to the time the jury had been deliberating and the fact that the jurors had recently requested to rehear evidence, indicating that they were actively deliberating, the trial court did not abuse its discretion in denying Humphreys's motions. See Sears v. State, 270 Ga. 834, 837(1), 514 S.E.2d 426 (1999) (upholding a modified Allen charge given after the jury had been deliberating for nine hours and had twice informed the trial court that it was deadlocked).
(b) Allen charge. While the trial court made a few inconsequential slips of the tongue and harmless additions, the Allen charge given in this case substantially followed the pattern charge. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.70.70 (3d ed. 2005). Humphreys nevertheless contends that two portions of the trial court's Allen charge rendered it unduly coercive. There is no merit to Humphreys's argument that the trial court coerced the jury to reach a verdict by injecting its personal feelings into the deliberations, in charging that "[a] proper regard for the judgment of others will greatly aid us in forming our own judgment" (emphasis supplied). While unfortunately colloquial for such an important and often-used instruction, this passage, when read in context, clearly refers to the judgment of the jurors, not the trial court, and in any event it does not suggest what judgment, if any, the court had at the time. Compare McMillan v. State, 253 Ga. 520, 523(4), 322 S.E.2d 278 (1984) (requiring reversal where, after its Allen charge, the trial court stated, "I feel like there is enough evidence in this case for you to reach a verdict one way or the other").
Humphreys also maintains that the instruction, "[i]t is the law that a unanimous verdict is required," is an incorrect statement of the law in the sentencing phase of a death penalty case, because Georgia's death penalty statute provides that, if the jury considering the death penalty cannot reach unanimity as to which of the three sentencing options to recommend, the trial court is required to dismiss the jury and to sentence the defendant to either life or life without parole. See OCGA § 17-10-31.1(c) (repealed by Ga. L. 2009, p. 223, § 6, effective April 29, 2009).
With regard to this issue, Humphreys submitted with his motion for new trial the affidavits of one juror and of two investigators who interviewed a second juror, which allege that the jury misunderstood the law. However, because the proposed affidavit of the juror does not fall within any exception to OCGA § 17-9-41 (providing that jurors' affidavits "may be taken to sustain but not to impeach their verdict"), the trial court correctly declined to consider it. See Gardiner v. State, 264 Ga. 329, 332(2), 444 S.E.2d 300 (1994) (holding that the limited exceptions to OCGA § 17-9-41 do not include jurors' misapprehension regarding the law). Likewise, the trial court did not err in disregarding the two investigators' affidavits, because "`if a verdict may not be impeached by an affidavit of one or more of the jurors who found it, certainly it cannot be impeached by affidavits from third persons, establishing the utterance by a juror of remarks tending to impeach his verdict.'" Washington v. State, 285 Ga. 541, 544(3)(a)(iv), n. 11, 678 S.E.2d 900 (2009) (citation omitted).
Our task is to determine whether the Allen charge in Humphreys's case, considered as a whole, was "so coercive as to cause a juror to `abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.'" *334 Mayfield v. State, 276 Ga. 324, 330, 578 S.E.2d 438 (2003) (citation omitted). Humphreys maintains that the instruction misled the jurors into believing that, if they were unable to reach a unanimous verdict, Humphreys would receive a life sentence or could even be released and that such a misunderstanding of the law coerced one or more jurors into abandoning their honest convictions in order to reach a unanimous verdict of death.
This Court has previously considered the same "a unanimous verdict is required" instruction given as part of an Allen charge in the sentencing phase of a death penalty trial. In Legare v. State, 250 Ga. 875, 302 S.E.2d 351 (1983), we stated that "it is true that any `verdict' rendered [in the sentencing phase] must be unanimous and thus also true, stated in isolation, that it is `the law that a unanimous verdict is required.'" Id. at 876(1), 302 S.E.2d 351. As we later explained in a related context, in Georgia a unanimous verdict is required even in the sentencing phase of a capital case because under our death penalty law, "[w]here a jury is unable to agree on a verdict, that disagreement is not itself a verdict." Romine, 256 Ga. at 525(1), 350 S.E.2d 446(b). The jury's deadlock may lead to a sentence of life with or without parole imposed by the trial court, but it does not result either in a mistrial subject to retrial (as in other contexts where a jury deadlocks) or an automatic verdict (as occurs under the death penalty law of other states). Id.[8] Moreover, we have repeatedly held that a trial court is not required to instruct the jury in the sentencing phase of a death penalty trial about the consequences of a deadlock. See Jenkins v. State, 269 Ga. 282, 296(26), 498 S.E.2d 502 (1998).
For these reasons, the "a unanimous verdict is required" instruction is technically a correct statement of the law even in the context of the sentencing phase of a death penalty trial. Nevertheless, because this charge may lead to claims of jury confusion that require detailed analysis of the full circumstances of the jury instructions given, the better practice is to omit this language from Allen charges given during the sentencing phase of death penalty trials. To the extent that Legare, 250 Ga. at 876(1), 302 S.E.2d 351, suggests that this instruction will always survive such review, it is overruled.
Turning to that broader review, we note that the complained-of charge was a small portion of the extensive Allen charge given. As we have emphasized before, that charge also
cautioned the jurors that the verdict was not to be the ... "mere acquiescence [of the jurors] in order to reach an agreement," that any difference of opinion should cause the jurors to "scrutinize the evidence more [carefully and] closely" and that the aim was to keep the truth in view as it appeared from the evidence, considered in light of the court's instructions.
Mayfield, 276 Ga. at 330(2), 578 S.E.2d 438(b) (citation and punctuation omitted). In addition, following the publication of the verdicts, the jury was polled, and each of the jurors affirmed that the verdicts announced were the verdicts that he or she had reached and that each juror had reached those verdicts without any pressure from anyone during his or her deliberations. Id. In light of these circumstances and the full course of the jury's deliberations in this case, "[w]e conclude that, because the [a unanimous verdict is required] language constituted but one small portion of an otherwise balanced and fair Allen charge, it did not render the charge impermissibly coercive," Burchette v. State, 278 Ga. 1, 3, 596 S.E.2d 162 (2004), and it does not require reversal of Humphreys's death sentences.
Sentence Review
10. The jury recommended a death sentence for Cindy Williams's murder based on the following five statutory aggravating *335 circumstances: the murder was committed while the defendant was engaged in the commission of kidnapping with bodily injury, a capital felony; the murder was committed while the defendant was engaged in the commission of armed robbery, a capital felony; the murder was committed for the purpose of receiving money or any other thing of monetary value; the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture and an aggravated battery to the victim before death and involved the depravity of mind of the defendant; and the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest. See OCGA § 17-10-30(b)(2), (7), (10). The jury recommended a death sentence for Lori Brown's murder based on its finding of these same five statutory aggravating circumstances. This Court is required to review each statutory aggravating circumstance and to determine if it is supported by the evidence. See OCGA § 17-10-35(c)(2). As part of this review, we conclude that the (b)(10) statutory aggravating circumstance found as to each victim is not supported by the evidence, although this conclusion does not affect the death sentences imposed.
OCGA § 17-10-30(b)(10) provides that the death penalty may be imposed where the evidence authorizes the jury to find beyond a reasonable doubt that "[t]he murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another." The State contended at trial that killing a witness to a crime is a means of avoiding, interfering with, or preventing lawful arrest and that the evidence showed that, once Humphreys obtained the victims' ATM cards and PINs, he murdered the victims because he knew that he would be apprehended if he left them alive.
The broad reading of the (b)(10) statutory aggravating circumstance that the State advocates would permit it to apply in almost any case in which a defendant is accused of committing a murder in close connection with another crimea very typical murder case. In all such cases, it could be said that the elimination of an eyewitness the murder victimwould help the defendant avoid arrest, and argued that such a purpose may be inferred. While the language of the statute may be susceptible to that reading, such a broad construction would be inconsistent with the purpose of statutory aggravating circumstances, which is to provide a "meaningful basis for distinguishing the few cases in which (the death penalty) is imposed from the many cases in which it is not." Furman v. Georgia, 408 U.S. 238, 313, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (White, J., concurring). We do not doubt that killing a witness to a crime may be done, under certain circumstances, clearly for the purpose of avoiding, interfering with, or preventing lawful arrest. But the circumstances of this case do not establish such a clear purpose behind the murder of the two victims.
We note that our cases to date have upheld the (b)(10) circumstance only where the evidence supported a finding that the defendant was, at the time of the murder, in immediate peril of being lawfully arrested, placed in custody, or confined in a place of lawful confinement by a law enforcement officer. See Brannan v. State, 275 Ga. 70, 70, 85(28), 561 S.E.2d 414 (2002) (finding sufficient evidence to support the (b)(10) circumstance where the defendant murdered a police officer who stopped him for speeding); Holsey v. State, 271 Ga. 856, 857, n. 1, 858(1), 524 S.E.2d 473 (1999) (finding sufficient evidence where the defendant fled after robbing a food store and then shot a police officer who was approaching his vehicle to arrest him); Speed v. State, 270 Ga. 688, 688, 690(1), 512 S.E.2d 896 (1999) (finding sufficient evidence where the defendant, a known drug dealer, shot an officer who had threatened to "catch him dirty" in the back of the head while the officer was frisking another suspect); Henry v. State, 269 Ga. 851, 851, 853(1), 507 S.E.2d 419 (1998) (finding sufficient evidence where the defendant murdered an officer to avoid a search of his bag, which he feared would reveal his pistol and lead to his arrest for being a felon in possession of a firearm); Collier v. State, 244 Ga. 553, 572, 261 S.E.2d 364 (1979) (finding sufficient evidence where the defendant *336 killed a police officer while fleeing a "pat down" after he committed a robbery), overruled on other grounds by Thompson v. State, 263 Ga. 23, 25(2), 426 S.E.2d 895 (1993); Willis v. State, 243 Ga. 185, 185, 191(17), 253 S.E.2d 70 (1979) (finding sufficient evidence where the defendant abducted and murdered an officer who attempted to arrest him and his companions after they committed an armed robbery). Compare Stevens v. State, 247 Ga. 698, 708-709(22), 278 S.E.2d 398 (1981) (reversing the jury's finding of the (b)(10) circumstance where the defendant killed a police officer who had stopped him for questioning but where the State "did not prove a technically lawful arrest of the offender"). While such cases fall clearly within the scope of the (b)(10) statutory aggravating circumstance, we reiterate that the Code section is not limited to that situation. We hold today only that the (b)(10) circumstance does not extend as far as the situation presented in this case, and therefore we must set aside the (b)(10) circumstances with respect to the murders of both victims here.
We need not reverse Humphreys's death sentences, however, because they both remain supported by at least one valid statutory aggravating circumstance. See Colwell v. State, 273 Ga. 634, 642(11)(d), 544 S.E.2d 120 (2001). Viewed in the light most favorable to the jury's verdict, we conclude that the evidence, as summarized in Division 1 above, was clearly sufficient to authorize a rational trier of fact to find beyond a reasonable doubt the existence of the remaining statutory aggravating circumstances as to each victim in this case. See Jackson v. Virginia, 443 U.S. at 319(III)(B), 99 S. Ct. 2781; OCGA § 17-10-35(c)(2).
11. Upon a review of the trial record, we conclude that Humphreys's death sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor. See OCGA § 17-10-35(c)(1).
12. In reviewing the proportionality of the death sentences in Humphreys's case as required by OCGA § 17-10-35(c)(3), we have considered "whether the death penalty is `excessive per se' or if the death penalty is `only rarely imposed ... or substantially out of line' for the type of crime involved and not whether there ever have been sentences less than death imposed for similar crimes." Gissendaner v. State, 272 Ga. 704, 717(19), 532 S.E.2d 677 (2000) (citations omitted; emphasis in original). The cases in the appendix support the imposition of the death penalty in this case in that all involved a deliberate murder committed for the purpose of receiving money or any other thing of monetary value or involved an armed robbery, kidnapping with bodily injury, the (b)(7) statutory aggravating circumstance, and/or evidence that the defendant murdered multiple persons. See OCGA § 17-10-35(e). Thus, the cases in the appendix show the willingness of juries in Georgia to impose the death penalty under such circumstances. We find that, considering the crimes and the defendant, the sentences of death in this case are not disproportionate punishment.
Judgment affirmed.
HUNSTEIN, C.J., BENHAM, THOMPSON, and MELTON, JJ., and Judge JOHN J. ELLINGTON concur.
CARLEY, P.J., concurs specially.
HINES, J., not participating.
APPENDIX.
O'Kelley v. State, 284 Ga. 758, 670 S.E.2d 388 (2008); Rivera v. State, 282 Ga. 355, 647 S.E.2d 70 (2007); Lewis v. State, 279 Ga. 756, 620 S.E.2d 778 (2005); Perkinson v. State, 279 Ga. 232, 610 S.E.2d 533 (2005); Sealey v. State, 277 Ga. 617, 593 S.E.2d 335 (2004); Braley v. State, 276 Ga. 47, 572 S.E.2d 583 (2002); Terrell v. State, 276 Ga. 34, 572 S.E.2d 595 (2002); Arevalo v. State, 275 Ga. 392, 567 S.E.2d 303 (2002); Fults v. State, 274 Ga. 82, 548 S.E.2d 315 (2001); Butts v. State, 273 Ga. 760, 546 S.E.2d 472 (2001); Colwell v. State, 273 Ga. 634, 544 S.E.2d 120 (2001); King v. State, 273 Ga. 258, 539 S.E.2d 783 (2000); Esposito v. State, 273 Ga. 183, 538 S.E.2d 55 (2000); Morrow v. State, 272 Ga. 691, 532 S.E.2d 78 (2000); Bishop v. State, 268 Ga. 286, 486 S.E.2d 887 (1997); Jones v. State, 267 Ga. 592, 481 S.E.2d 821 (1997); McClain v. State, 267 Ga. 378, 477 *337 S.E.2d 814 (1996); McMichen v. State, 265 Ga. 598, 458 S.E.2d 833 (1995).
CARLEY, Presiding Justice, concurring specially.
I concur fully in the majority's affirmance of the convictions and death sentences. I also concur in the majority's opinion with the exception of Division 9(b), which I cannot join because I do not believe that there was any error whatsoever in the giving of the modified Allen charge. See Allen v. United States, 164 U.S. 492, 501(9), 17 S. Ct. 154, 41 L. Ed. 528 (1896). Therefore, I do not join in the overruling of Legare v. State, 250 Ga. 875, 302 S.E.2d 351 (1983) to any extent.
NOTES
[1] The crimes occurred on November 3, 2003. On February 12, 2004, a Cobb County grand jury indicted Humphreys on two counts each of malice murder, felony murder, aggravated assault, kidnapping with bodily injury, and armed robbery, and one count of possession of a firearm by a convicted felon. On the same date, the State filed written notice of its intent to seek the death penalty. Jury selection began on September 4, 2007. On September 26, 2007, Humphreys pleaded guilty to possession of a firearm by a convicted felon, following his convictions by the jury on all other counts of the indictment the previous day. The jury recommended death sentences for the malice murder convictions on September 30, 2007. The trial court imposed death sentences for the murders, and the felony murder convictions were vacated by operation of law. Malcolm v. State, 263 Ga. 369, 371-372(4), 434 S.E.2d 479 (1993). The trial court also imposed a consecutive life sentence for each count of kidnapping with bodily injury and armed robbery, concurrent 20-year sentences for each count of aggravated assault, and a concurrent five-year sentence for possession of a firearm by a convicted felon. Humphreys filed a motion for new trial on October 10, 2007, which he amended on October 1, 2008, and which the trial court denied on February 19, 2009. Humphreys filed a notice of appeal on March 20, 2009, which he amended on March 23, 2009. The appeal was docketed in this Court on May 7, 2009, and was orally argued on September 21, 2009.
[2] In its order denying Humphreys's motion for new trial, the trial court cited this Court's denial of the petition for interim review in this case, see OCGA § 17-10-35.1; U.A.P. II(F)-(H), as the basis for denying this claim, as well as some of Humphreys's other claims. We remind trial courts and parties in death penalty cases that the failure of this Court to grant interim review of any question that could be raised under the interim review procedure does not constitute an adjudication of that question. See OCGA § 17-10-35.1(h); U.A.P. II(H)(5). See also Harper v. State, 283 Ga. 102, 107(3), 657 S.E.2d 213 (2008) (declining to address on interim review an issue not set forth in this Court's order granting review and noting that the failure to do so did not "`waive the right to posttrial review'").
[3] The citation should have read simply "OCGA § 15-12-1," as there was no subsection "1.0."
[4] Apparently when the Uniform Rules were amended in 1994, the decimal point was omitted from the citation to OCGA § "15-12-1.0" in Rule 1.2(D). That was clearly a typographical error, as the remainder of Rule 1.2(D) remains the same as that portion of the original Rule 1.2 and OCGA § 15-12-10 concerns delinquent jurors and is obviously inapplicable.
[5] The qualifications of grand jurors are set forth in OCGA § 15-12-60, which similarly excludes as incompetent for service "[a]ny person who has been convicted of a felony and who has not been pardoned or had his or her civil rights restored." OCGA § 15-12-60(b)(2).
[6] We also note that a plea of nolo contendere "shall not be deemed a plea of guilty for the purpose of effecting any civil disqualification of the defendant to ... serve upon any jury." OCGA § 17-7-95(c).
[7] The trial court's charge was as follows, with the two specific portions challenged by Humphreys emphasized:
The Court deems it advisable at this time to give you some instruction in regard to the manner in which you should be conducting your deliberations in the case. You've been deliberating upon this case for a period of time. The Court deems it proper to advise you further in regard to the desirability of agreement, if possible.
The case has been exhaustively and carefully tried by both sides and has been submitted to you for decision and verdict, if possible, and not for disagreement. It is the law that a unanimous verdict is required.
While this verdict must be the conclusion of each juror independently, and not a mere acquiescence of the jurors in order to reach an agreement, it is nevertheless necessary for all the jurors to examine the issues and the questions submitted to them with candor and with fairness and with a proper regard for in [sic] deference to the opinion of each other.
A proper regard for the judgment of others will greatly aid us in forming our own judgment. Each juror should listen with courtesy to the arguments of the other jurors with the disposition to be convinced by them.
If the members of the jury differ in their view of the evidence, the difference of opinion should cause them all to scrutinize the evidence more carefully and closely and to reexamine the grounds of their own opinion.
Your duty is to decide the issues that have been submitted to you if you can consciously [sic] do so. In conferring, you should lay aside all mere pride of opinion and should bear in mind that the jury room is no place for hostility or taking up and maintaining in a spirit of controversy either side of the cause.
You should bear in mind at all times that, as jurors, you should not be advocates for either side of the case. You should keep in mind the truth as it appears from the evidence, examined in the light of the instructions that the Court has given to you.
You may, again, retire to the jury room for a reasonable time, examine your differences in a spirit of fairness and candor and courtesy, and try to arrive at a verdict if you can conscientiously do so. At this time, you may return to the jury room.
[8] For this same reason, the Court in Legare held that the charge, "This case must be decided by some Jury," was error in the context of the sentencing phase of a death penalty case, because if the jury is deadlocked, there is no mistrial and new sentencing trial held before a new jury. See 250 Ga. at 876-877(1), 302 S.E.2d 351. The trial court in this case properly did not give that incorrect instruction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315936/ | 694 S.E.2d 119 (2010)
WALKER
v.
ADERHOLD PROPERTIES, INC. et al.
No. A09A1951.
Court of Appeals of Georgia.
March 25, 2010.
Reconsideration Denied April 14, 2010.
*120 Robert Kenner Jr., for appellant.
Fowler, Hein, Cheatwood & Williams, Robert P. Hein, Hawkins & Parnell, Christopher S. Keith, Shapiro, Fussell, Wedge & Martin, Robert B. Wedge, Jason A. Cooper, Atlanta, for appellees.
BARNES, Judge.
After she was attacked in her apartment, Eina Walker filed this premises liability action against Aderhold Properties, Inc., the management company for the apartment complex. Aderhold Properties then filed a third-party complaint against Cognisa Security, Inc., the company that provided security services at the complex. Aderhold Properties and Cognisa moved for summary judgment. After excluding certain evidence, the trial court granted the motions. For reasons that follow, we reverse.
On appeal from the trial court's grant of summary judgment, we conduct a de novo *121 review of the record to determine whether the evidence, viewed in the light most favorable to the nonmoving party, demonstrates a genuine issue of material fact. Summary judgment is proper only when no issue of material fact exists, and the moving party is entitled to judgment as a matter of law. Ford v. Bank of America Corp., 277 Ga.App. 708, 627 S.E.2d 376 (2006).
Viewed favorably to Walker, the evidence shows that she and a roommate shared an apartment at the Fulton Cotton Mill Lofts. According to Walker, she chose the apartment, in part, because of its safety features. In addition to being gated, there were guards, security cameras and security lighting, and the buildings required a key card for access. However, many of the security features were not functioning. According to a former security guard at the Lofts, one of the security cameras was broken and another was not focused properly. The gate at the rear of the property was broken, and the pedestrian gates at the front of the complex did not always close properly. The back door to Walker's building had also been broken for quite some time such that a key card was not required for entry.
On July 4, 2004, Walker returned home in the early morning after leaving work. She entered her apartment building through the broken door and took the elevator to her third floor apartment. As she was walking toward her apartment door, Walker noticed two men standing in the hallway. One of the men grabbed her, and the other man held a gun to her face. The men took Walker's key from her and forced her into the apartment where she was blindfolded, duct-taped, sexually assaulted, raped, and robbed.
Walker filed suit against Aderhold Properties, alleging that the company had breached its duty to repair the premises, to keep the premises safe, and to provide adequate security services. She also sued her assailants, one of whom she identified as Corey Deon Ellis. Aderhold Properties filed its third-party complaint against its security company, Cognisa, asserting claims for indemnity and breach of contract.
Both Aderhold Properties and Cognisa moved for summary judgment. According to the defendants, Walker failed to establish that the attack was foreseeable. The defendants also asserted that Walker was able to produce no probative evidence as to how her assailants entered the building and thus could not establish causation. The trial court agreed. Although Walker had tendered security company incident reports and police reports showing other criminal acts that had occurred on the premises, the trial court excluded the evidence as hearsay. Walker attempted to establish causation by tendering a videotaped statement Ellis made in connection with his arrest, but the trial court also excluded this as hearsay. Walker appeals these rulings.
1. To establish a claim for negligence in Georgia, a plaintiff must show: (1) a legal duty to conform to a standard of conduct raised by law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) loss or damage to plaintiff's legally protected interest. See Snellgrove v. Hyatt Corp., 277 Ga. App. 119, 122(1), 625 S.E.2d 517 (2006).
With respect to premises liability cases, "[t]he general rule is that a landlord is not an insurer of his tenant's safety; however, landlords do have a duty to exercise ordinary care to prevent foreseeable third-party criminal attacks upon tenants." Brookview Holdings v. Suarez, 285 Ga.App. 90, 97(3), 645 S.E.2d 559 (2007). Although the prior criminal activity must be substantially similar to the crime in question, there is no requirement that the crimes be identical. Drayton v. Kroger Co., 297 Ga.App. 484, 485-486, 677 S.E.2d 316 (2009). Prior property crimes may give a landlord notice of possible future crimes against a person. As far back as 1997, our Supreme Court noted that it had already "laid to rest the artificial notion that a crime against a person could never be foreseen by previous crimes against property," although under the circumstances in that case, the court held the plaintiff's injuries were not foreseeable. Doe v. Prudential-Bache/A.G. Spanos Realty Partners, 268 Ga. 604, 605, 492 S.E.2d 865 (1997). In *122 affirming the Court of Appeals, the Supreme Court rejected this court's analysis based "solely on the principle that prior property crimes could not create a factual issue regarding whether a property owner knew or should have known that a crime against a person, sexual or otherwise, might be committed on its premises." Id.
"The prior incident need not be the same crime, and the means of inflicting injury need not be identical to be deemed substantially similar." (Punctuation omitted.) Wade v. Findlay Mgmt., 253 Ga.App. 688, 690, 560 S.E.2d 283 (2002); see also Mason v. Chateau Communities, 280 Ga.App. 106, 113, 633 S.E.2d 426 (2006). All that is required is that the prior incident be sufficient to attract the landlord's attention to the dangerous condition which resulted in the litigated incident. See Drayton, supra at 486, 677 S.E.2d 316. Whether a criminal attack is reasonably foreseeable is generally a jury issue. See id.
To establish that the attack against her was foreseeable, Walker tendered copies of incident reports she had received from Aderhold Properties showing that on at least three occasions, if not more, other tenants at the Lofts had their apartments burglarized.[1] The defendants argue that such incident reports are hearsay and thus not probative. In other words, the issue of their liability is not reached unless Walker first proves that the crimes occurred using something other than police reports or the defendants' own incident reports.[2] This, however, is not the law.
A landlord need not have actual knowledge of criminal conduct before it may be held liable for failing to keep the premises safe; rather "[a] landowner can be liable for third-party criminal attacks if the landowner has reasonable grounds to apprehend that such a criminal act would be committed but fails to take steps to guard against injury." (Emphasis supplied.) TGM Ashley Lakes v. Jennings, 264 Ga.App. 456, 462(2), 590 S.E.2d 807 (2003). The fact that Aderhold Properties' security personnel received reports that burglaries were taking place on the premises provides such reasonable grounds for the defendants to appreciate that another criminal attack would occur. More importantly, the reports did not constitute hearsay. "As a fundamental rule, the definition of hearsay does not include out-of-court statements which are not offered as proof of the facts asserted in such statement, but are offered merely as proof that such a statement was made." (Punctuation omitted.) Quiktrip Corp. v. Childs, 220 Ga.App. 463, 466(3), 469 S.E.2d 763 (1996).
Finally, as discussed earlier, the fact that the prior incidents involved property crimesburglariesrather than personal crimessexual assaultsdoes not absolve the defendants of liability as a matter of law. As our Supreme Court has noted, such a rigid approach to determining foreseeability is not in keeping with either common sense or existing law. See Sturbridge Partners v. Walker, 267 Ga. 785, 786, 482 S.E.2d 339 (1997). The question here is whether, by virtue of their knowledge of the prior burglary reports, the defendants should have reasonably anticipated the risk of harm to a tenant. See id. at 787, 482 S.E.2d 339. This is a question that must be answered by a jury.[3]
Citing Agnes Scott College v. Clark, 273 Ga.App. 619, 616 S.E.2d 468 (2005), the dissent argues that no violent acts had been reported on the property, only burglaries and other property crimes, and thus Walker's initial attack in the "common area" of the *123 hallway outside her apartment was not foreseeable. The facts in that case, however, are vastly different from the facts before us. The plaintiff in Agnes Scott was kidnapped from a parking lot at noon and presented only general crime statistics and evidence of previous minor property crimes in the area. We affirmed the trial court's ruling that these incidents did not make Clark's daytime abduction foreseeable. Id. at 622, 616 S.E.2d 468.
The dissent further argues that Walker presented no evidence of break-ins to occupied apartments "of the kind that made a violent attack foreseeable in Sturbridge Partners." First, in Sturbridge, the prior burglaries were committed during the day when no one was at home. The court reasoned that although the crimes occurred while the apartments were vacant, "it was reasonable to anticipate that an unauthorized entry might occur while an apartment was occupied and personal harm to a tenant could result." 267 Ga. at 787, 482 S.E.2d 339. Second, in this case, of the burglaries addressed in the incident reports and elsewhere, one took place while the resident was home, and another while the resident was gone for only two-and-a-half hours. Finally, as noted in Sturbridge, "the very nature of burglary suggests that personal injury may occur during the unauthorized entry into the dwelling house of another." Id. at 787, n. 1, 482 S.E.2d 339.
In addition to the burglaries, the record contains evidence that a transient arrested on the property for breaking into a car physically assaulted the security guard. Another resident was physically attacked in the parking lot near the front gate by a man wielding a knife. A man was reportedly walking around trying to unlock doors to residents' apartments, and in yet another incident a man tried to force his way into a resident's apartment by kicking her door while he demanded to have sex with her. It defies logic and common sense to argue that these incidents are not sufficient, as a matter of law, to attract the landlord's attention to the dangerous conditions here.
2. The trial court also found that Walker had failed to establish causation, which is a necessary element of her claim of negligence. Specifically, the court found that Walker had produced no competent evidence regarding how her assailants entered the premises. Without some evidence showing that it was the defendants' faulty security that permitted such entry, the trial court concluded that the defendants were entitled to judgment as a matter of law. See Sturbridge, supra at 787, 482 S.E.2d 339.
As the trial court properly noted, a plaintiff must do more than merely speculate as to whether enhanced security measures would have prevented an attack. See Post Properties v. Doe, 230 Ga.App. 34, 39, 495 S.E.2d 573 (1997). This is so because "[g]uesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment." (Punctuation omitted.) Id.
Here, however, Walker provided more than mere speculation regarding how Ellis entered the property. She provided his videotaped police interview in which he said that he walked through an open gate.[4] The trial court, however, excluded this evidence as hearsay.
Georgia favors the admission of relevant evidence, even if its probative value is slight. See Dodd v. Scott, 250 Ga.App. 32, 35(2), 550 S.E.2d 444 (2001). However, a trial court retains discretion in determining whether evidence is to be admitted or excluded, and we will not interfere with such discretion absent abuse. See id. Under the circumstances of this case, the trial court abused its discretion.
In addition to suing Aderhold Properties and Cognisa, Walker also sued Ellis. And, under OCGA § 24-3-31, the admission by a *124 party is generally admissible when offered by the other side. One exception to this rule is that the admission of one of several parties with no joint interest is inadmissible "unless the issue is of such a character that the effect of the admission can be confined to the one party alone." OCGA § 24-3-31(2). In this case, the trial court found that Walker was improperly attempting to "use" Ellis' statement against the remaining defendants although no joint interest had been established. We disagree.
It is true that the admissions of one defendant cannot be considered as evidence against another co-defendant. See KHD Deutz of America Corp. v. Utica Mut. Ins., 220 Ga.App. 194, 197(3), 469 S.E.2d 336 (1996). This merely means that when one defendant admits wrongful conduct, the conduct is not imputed to the co-defendant by virtue of the admission. See id. But the admission may still be used to establish the admitting defendant's conduct even if the admission ultimately works to the detriment of the non-admitting defendant. See id. In other words, Ellis' statement is admissible solely to show the means by which he entered the apartment complex. The fact that Ellis' statement may contribute to an ultimate finding of liability on the part of Aderhold Properties and/or Cognisa does not change this result. See id.
Because the admissible evidence, construed favorably to Walker, demonstrates that jury issues remain, the trial court erred in granting the defendants' motions for summary judgment. See Sturbridge, supra; Westmoreland v. Williams, 292 Ga.App. 359, 362(2), 665 S.E.2d 30 (2008); Wal-Mart Stores v. Lee, 290 Ga.App. 541, 659 S.E.2d 905 (2008).
Judgment reversed.
MILLER, C.J., JOHNSON, P.J., BLACKBURN, P.J., ELLINGTON and MIKELL, JJ., concur.
ANDREWS, P.J., dissents.
ANDREWS, Presiding Judge, dissenting.
The salient facts in this appeal are, first, that a tenant was attacked by two men in the hallway outside her apartment (and then forced into that apartment), and second, that no violent attack had previously taken place on the premises. Our Supreme Court has held that property crimes previously committed in a common area do not put a landlord on notice that a violent assault is likely to occur in that area, and that summary judgment for the defendant is therefore appropriate concerning the violent assault. Doe v. Prudential-Bache/A.G. Spanos Realty Partners, 268 Ga. 604, 606, 492 S.E.2d 865 (1997). It follows that the trial court did not err when it granted summary judgment to the property owner and the security company in this case. I therefore dissent.
We laid out the controlling legal authority in this case when we reversed the denial of summary judgment to Agnes Scott College in a case involving the abduction and subsequent rape of a student:
Although a landowner has a duty to invitees to exercise ordinary care to keep its premises safe (see OCGA § 51-3-1), the landowner is not an insurer of an invitee's safety. An intervening criminal act by a third party generally insulates a landowner from liability unless such criminal act was reasonably foreseeable.
(Citation omitted.) Agnes Scott College v. Clark, 273 Ga.App. 619, 621, 616 S.E.2d 468 (2005).
In order for the crime at issue to be foreseeable, it must be substantially similar to previous criminal activities occurring on or near the premises such that a reasonable person would take ordinary precautions to protect invitees from the risk posed by the criminal activity.
(Emphasis supplied.) Id., citing Sturbridge Partners v. Walker, 267 Ga. 785, 786, 482 S.E.2d 339 (1997). More specifically, and as our Supreme Court held in Sturbridge Partners:
In determining whether previous criminal acts are substantially similar to the occurrence causing harm, thereby establishing the foreseeability of risk, the court must inquire into the location, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question. While the prior *125 criminal activity must be substantially similar to the particular crime in question, that does not mean identical. What is required is that the prior incident be sufficient to attract the [landowner's] attention to the dangerous condition which resulted in the litigated incident.
(Citations and punctuation omitted.) 267 Ga. at 786, 482 S.E.2d 339.
Applying this standard, the Supreme Court of Georgia has held that a landlord was entitled to summary judgment on the claim of a victim who was attacked in a parking garage and raped nearby, because the crime was unforeseeable as a matter of law. Doe, supra at 606, 492 S.E.2d 865, affirming Doe v. Prudential-Bache/A.G. Spanos Realty Partners, 222 Ga.App. 169, 474 S.E.2d 31 (1996). The Supreme Court held that the prior property crimes were "insufficient to create a factual issue regarding whether [the landlord] could reasonably anticipate that a violent sexual assault might occur on the premises." (Emphasis supplied.) This was so for three reasons: because the thefts and vandalism in Doe "[did] not suggest that personal injury [might] occur"; because the parking garage was "a common area, used by all the tenants and their guests," such that "there [was] only the potential for a tenant to confront a thief in an isolated situation"; and because "a tenant generally will have opportunities for escaping an isolated encounter with a thief in a common area, but will not have similar opportunities when encountering a burglar in her apartment." (Punctuation omitted; emphasis supplied.) Doe, supra, 268 Ga. at 606, 492 S.E.2d 865.
Here, it is undisputed that Walker was attacked in the hallway outside her apartmenta "common area," used by "tenants and their guests." Doe, 268 Ga. at 606, 492 S.E.2d 865. And it is also undisputed that no violent attacks had been reported in the complex's common areas, let alone inside an apartment. The facts that faulty security may have permitted other people to have gained entrance to the complex in the past, and that such people had committed property crimes, do not mean that Walker's robbery and rape were foreseeable. On the contrary, a property owner faced only with property crimes that "did not involve person-to-person violence or contact" could not reasonably have foreseen this attack. Agnes Scott, 273 Ga.App. at 622, 616 S.E.2d 468, citing Doe, 268 Ga. at 606, 492 S.E.2d 865. Nor is there evidence of break-ins to occupied apartments of the kind that made a violent attack foreseeable in Sturbridge Partners. See Walker v. Sturbridge Partners, 221 Ga.App. 36, 470 S.E.2d 738 (1996) (rapist and fellow resident gained entry through same kitchen window that the victim had previously reported as having a broken lock).
For these reasons, I respectfully dissent.
NOTES
[1] Walker also tendered other security incident reports showing that multiple cars had been broken into while parked in the parking lot and police reports detailing additional crimes. We do not rule upon whether such reportsproperly authenticatedmay be admissible at trial.
[2] Under the defendants' reasoning, Aderhold Properties could have police reports showing that ten rapes occurred in Walker's building, but unless Walker could produce testimony from either the victims or the assailants, both Aderhold Properties and Cognisa would be insulated from liability.
[3] The defendants also argued that the incident reports were not authenticated, but the trial court did not reach this issue. Given the fact that Aderhold Properties produced the documents during discovery, the defendants' argument appears meritless. See Salinas v. Skelton, 249 Ga.App. 217, 220-221(1), 547 S.E.2d 289 (2001).
[4] After Ellis defaulted in the lawsuit, Walker served him with requests to admit to which he did not respond. Walker attempted to introduce these requests to admit for the purpose of establishing causation. Because we find that Walker was otherwise able to establish causation, we do not address whether a party who has defaulted can be served requests to admit. See, e.g., Lu v. Liu, 282 B.R. 904, 906 (C.D.Cal.2002). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315971/ | 694 S.E.2d 370 (2010)
LUY
v.
The STATE.
No. A10A0476.
Court of Appeals of Georgia.
March 25, 2010.
*371 Michael B. King, for appellant.
Tasha M. Mosley, Solicitor-General, Paula M. Mickens, Asst. Solicitor-General, for appellee.
MILLER, Chief Judge.
A jury convicted Vinh Luy of striking a parked vehicle (OCGA § 40-6-271(a)), driving under the influence ("DUI")-less safe (OCGA § 40-6-391(a)(1)),[1] DUI-per se (OCGA § 40-6-391(a)(5)),[2] and striking a fixed object (OCGA § 40-6-272). Luy appeals, contending that the trial court erred in denying her motion for a directed verdict as to each of the foregoing offenses. Luy also contends that the trial court erred in denying her motion in limine seeking to exclude certain field sobriety test results and a State-administered breath test. Luy supports her claims of error by citation of authority and reference to the record only with respect to her convictions of DUI-less safe and DUI-per se.[3] Finding that the trial court did not err in denying her motion for a directed verdict as to the DUI-less safe and DUI-per se offenses and waiver as to Luy's remaining claims of error (see Court of Appeals Rule 25(c)(2)), we affirm.
Luy argues that the trial court's denial of her motion for a directed verdict of acquittal regarding the foregoing DUI charges was erroneous because there is no evidence that she drove the vehicle in question. We disagree.
On appeal, the standard of review for denial of a motion for directed verdict is the same as that for determining the sufficiency of the evidence to support a conviction. The issue ... is whether, based on the evidence presented, a rational finder of fact could have found the accused guilty of the charged offenses beyond a reasonable doubt. Leaving the resolution of conflicting or contradictory testimony and the credibility of the witnesses to the jury, we construe the evidence in favor of the jury's verdicts. In this regard, even though a witness may recant on the stand, his prior inconsistent statements constitute substantive evidence on which the jury may rely.
(Punctuation and footnotes omitted.) Hash v. State, 248 Ga.App. 456, 457(1), 546 S.E.2d 833 (2001).
So viewed, the evidence shows that on the afternoon of October 6, 2008, a Clayton County police officer experienced in the administration of field sobriety tests, was called to the scene of an accident at a county residence *372 in which a white Yukon had collided with a light pole next to the residence's driveway. Upon contacting Luy at the residence, Martin found her to be confrontational, noted the odor of alcohol on her breath and person, observed that she was unable to walk normally and that her eyes were reddened and glassy. Then questioned, Luy admitted that she had been drinking and that she was the driver of the Yukon. Thereafter, Luy submitted to three field sobriety tests, each of which she failed. Given the foregoing, Martin concluded that Luy was under the influence of alcohol to the extent that she was a less safe driver, placed her in custody for DUI, and read her the implied consent warning for persons 21 years of age and older. Luy consented to State-administered breath testing, the results of which showed her breath alcohol content to be 0.243 and 0.234, respectively.
Having reviewed the evidence in the light most favorable to the verdict, we conclude that there is sufficient evidence from which a rational trier of fact could have found Luy guilty beyond a reasonable doubt of DUI-less safe and DUI-per se. OCGA § 40-6-391(a)(1); see Goodson v. State, 242 Ga.App. 167, 169(3), 529 S.E.2d 175 (2000) (circumstantial evidence supported DUI-less safe conviction where defendant admitted driving and being in single-car accident, and was intoxicated when he encountered police) and OCGA § 40-6-391(a)(5); Wells v. State, 297 Ga.App. 153, 156(1)(a), 676 S.E.2d 821 (2009), respectively.
Judgment affirmed.
JOHNSON, P.J., and PHIPPS, J., concur.
NOTES
[1] An individual is guilty of DUI-less safe when she operates a motor vehicle while under the influence of alcohol to the extent that it is less safe for her to drive. Id.
[2] An individual is guilty of DUI-per se where, within three hours after driving a motor vehicle, tests show that her blood-alcohol concentration is 0.08 grams or more. Id.
[3] The trial court merged Luy's conviction of DUI-per se with her conviction of DUI-less safe and sentenced her to a $500 fine, 12 months confinement, to serve 120 days and the remainder probated, subject to certain conditions, including that she perform 80 hours of community service. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315967/ | 388 S.C. 8 (2010)
694 S.E.2d 31
Ernest F. MIDDLETON, III, and Marjorie Ann Middleton as Co-Trustees Under the Last Will and Testament of Ernest F. Middleton, Jr., Appellants,
v.
Manly EUBANK, 1625 Partnership, A South Carolina General Partnership, and Palmetto Ford, Inc., Respondents.
No. 4675.
Court of Appeals of South Carolina.
Heard December 10, 2009.
Decided April 19, 2010.
Rehearing Denied June 24, 2010.
*10 Thomas H. Hesse and Daniel S. McQueeney, Jr., both of Charleston, for Appellants.
J. Rutledge Young, Jr., Stephen L. Brown, Russell G. Hines, and Stephen A. Spitz, all of Charleston, for Respondents.
SHORT, J.
In this dispute involving the interpretation of a real property lease, Ernest Middleton, III, and Marjorie Middleton (collectively, Appellants), as co-trustees of the will of Ernest Middleton, Jr., appeal from the Master-in-Equity's order finding in favor of Manly Eubank, 1625 Partnership, and Palmetto Ford, Inc. (collectively, Respondents), the lessees of the property owned by Ernest Middleton, Jr. We affirm.
FACTS
On July 28, 1983, Ernest Middleton, Jr. (Lessor) signed a lease with Eubank, individually and as President of Palmetto Ford, Inc., and Hugh Cannon (Lessees), whereby Middleton leased real property in Charleston, South Carolina to Palmetto Ford to relocate its dealership on the land.[1] The leased property was composed of two tracts: a 3.476-acre tract on Highway 17, and a 4.79-acre tract.[2] The two parcels were *11 separated by a third tract that was owned by a third party. At that time, Ford required its dealerships to be built on at least seven acres of property. Therefore, the parties agreed the lease would be contingent upon the acquisition of an easement to the third-party tract of land that would provide access between the two parcels of land, allowing the two parcels to function as one and meet Ford's acreage requirement. Almost one year later, Lessor and 1625 Partnership were granted two easements for $25,000 in consideration paid by 1625 Partnership and $200 per month to use a portion of the property owned by the third party to provide "vehicular and pedestrian access to and from both parcels" of the leased land. The first easement connected the two separated parcels and the other provided access from the property onto Highway 17. The lease described the property as being composed of two tracts, but referred to them collectively as the "Property." The lease did not mention the easements. The lease further stated the Respondents would be making improvements to the property:
Leesee [sic] will have improvements constructed and added to the Property, at a cost of approximately $1.1 million, including buildings, paved areas for display and parking of vehicles, driveways, lighting, signs, landscaping, and the equipment and fixtures (such as heating and air conditioning) which are customarily deemed to become a part of the real property to which they are affixed (but excluding equipment which is solely for automotive uses) (hereinafter, all such included improvements shall be collectively referred to as the "Improvements").
The lease provided the initial term of the lease would be for thirty years, with the possibility of two ten-year renewals, and the annual rent would be an amount equal to nine percent of the valuation of the property, to be paid in monthly installments. The lease listed the then-current value of the parcels separately and together. The property was to be revalued three years from the first day of the lease term, and every three years thereafter, and the rent for the following three years was to be based on the valuation set at that time. Section four of the lease, titled "Valuation," stated, "The property shall be revalued by a MAI appraisal based on raw, unencumbered land with no Improvements, for the highest and best use thereof at such time, without regard to any *12 improvements thereon or to the use then being made of the property by lessee."[3] Further, the lease provided the "Valuation [of the property] shall not be decreased during the first Fifteen (15) years of the Property Lease term, and that the Valuation for this same Fifteen (15) years shall not be increased more than Six percent (6%) per year."
Several different appraisers appraised the land from 1984 to 2005. The initial appraisal was done on January 13, 1984. Fred Attaway, Jr., MAI, valued the property, after the completion of the proposed improvements, at $1.83 million for the fee simple estate and at $1.3 million for the leasehold estate.[4] On January 24, 1994, Attaway re-appraised the raw land at $1.23 million and the leased estate at $1.5 million. In this appraisal, Attaway mentions the property is divided into two parcels that can function fully; however, he states the division has a negative effect on the value because the property is separated by an access easement. On August 11, 1999, Attaway appraised the property at $2.1 million for the fee simple estate, considering the tracts as one parcel because they function as one. Appellants did not increase the rent after the 1999 appraisal because the parties disagreed about the amount of the appraisal. As a result, the parties reached a temporary agreement that the valuation for the following three years would be $1.7 million.
In 2002, Christopher Donato, MAI, appraised the property for Appellants. On November 13, 2002, Donato appraised the land "as is" at $2,897,000. He appraised the property as one parcel connected by the easements because the "two easements facilitate access to both tracts and have the affect of linking the two tracts such that they can be used in concert." One month later, Donato re-appraised the land at $2,845,000. In this appraisal, at the request of Respondents, he appraised the property as separate tracts independent of each other without the access easements. On October 21, 2005, Donato appraised the land "as is" at $6.34 million.
Michael Robinson, MAI, appraised the property for Respondents. On March 3, 2003, Robinson appraised the 3.476-acre *13 tract, as if vacant, at $1,911,800 and the 5.577-acre tract, as if vacant, at $655,300. He appraised the property as two separate and distinct tracts. Hugh Cannon, the attorney who drafted the lease, contacted Robinson in January or February 2003 and suggested the easements should not be considered in the appraisal. On November 15, 2005, Robinson appraised both tracts, as if vacant, at $3,504,400.
On March 2, 2006, Appellants filed a complaint in Charleston County Court of Common Pleas against Respondents, seeking a judicial declaration as to the rights and obligations of the parties under the Lease. The complaint alleged that based on the clear language of the valuation clause, the parties intended that the appraisal would be based upon the most valuable and profitable use of the property, which includes the easements and appraising both parcels together as a unit. However, Respondents asserted the parcels must be appraised as separate, unrelated, and unconnected parcels. Appellants also claimed Respondents refused to agree on a methodology for appraising the value of the property. In their amended answer, Respondents alleged:
[T]he "Property," as defined in the Lease and as it actually existed at the time the Lease was entered, was two separate and distinct tracts of land, not connected by easements, and thus the "Property" that is to be revalued pursuant to [the valuation clause] should continue to consist of two separate tracts of vacant land, as they existed on July 28, 1983, unconnected by any easements and should therefore continue to be appraised as raw, unencumbered land with no Improvements as set forth in the Lease.
On July 30, 2007, the parties consented to refer the declaratory judgment action to the Master-in-Equity for Charleston County. A non-jury trial was held on December 5 and 6, 2007. At the close of the presentation of their case, Appellants moved for a directed verdict on the question of whether an easement is an improvement under the law and the lease.[5] At the conclusion of the trial, the master ruled for Respondents from the bench, and on December 18, 2007, he issued his *14 order. The master found that (1) the lease was unambiguous; (2) the plain language of the lease negated consideration of easements in the revaluation; (3) the easements were improvements; (4) the parties' subsequent conduct supported his interpretation of the lease; and (5) Appellants' interpretation of the lease would lead to unjust or absurd results. Appellants filed a motion for new trial, or in the alternative, for reconsideration, pursuant to Rule 59(e), SCRCP, which was denied. This appeal followed.
STANDARD OF REVIEW
A declaratory judgment action is neither legal nor equitable, but is determined by the nature of the underlying issue. Felts v. Richland County, 303 S.C. 354, 356, 400 S.E.2d 781, 782 (1991). A lease agreement is a contract, and an action to construe a contract is an action at law. Duncan v. Little, 384 S.C. 420, 424, 682 S.E.2d 788, 790 (2009); Piedmont Interstate Fair Ass'n v. City of Spartanburg, 274 S.C. 462, 465, 264 S.E.2d 926, 927 (1980). "The cardinal rule of contract interpretation is to ascertain and give legal effect to the parties' intentions as determined by the contract language." McGill v. Moore, 381 S.C. 179, 185, 672 S.E.2d 571, 574 (2009). When a contract's language is clear and unambiguous, the language alone determines the force and effect of the contract. Id. "A contract is read as a whole document so that one may not create an ambiguity by pointing out a single sentence or clause." Id. However, if a contract is deemed ambiguous, the fact finder must ascertain the parties' intentions from the evidence presented. Duncan, 384 S.C. at 425, 682 S.E.2d at 790. "It is a question of law for the court whether the language of a contract is ambiguous." McGill, 381 S.C. at 185, 672 S.E.2d at 574. In an action at law, tried without a jury, the trial court's findings of fact will not be disturbed unless there is no evidence that reasonably supports the court's findings. Id.
LAW/ANALYSIS
Appellants argue the master erred in ignoring the plain language of the lease that required a MAI appraisal of the *15 property according to its highest and best use at the time, which they assert includes the easements. We disagree.
All of the parties asserted the lease was unambiguous; therefore, the court was required to ascertain and give legal effect to the parties' intentions as determined by the contract language. See McGill v. Moore, 381 S.C. 179, 185, 672 S.E.2d 571, 574 (2009).
Appellants argue the revaluation of the property according to "its highest and best use at the time" must include the easements. Appellants assert their expert witnesses, Thomas Hartnett and Christopher Donato, both real estate appraisers, recognized the highest and best use of the property at the time they conducted their appraisals included the easements because the easements allowed the two separate tracts to function as one parcel. Therefore, they testified that pursuant to the valuation clause of the lease, the two parcels should be revalued as a single unified parcel with the connecting easements. They also testified the easements did not qualify as subsequently-acquired improvements that would be excluded under the valuation clause of the lease. However, Donato admitted that under Webster's Dictionary's definition of the word "improvement," the easements would be defined as improvements because they added a benefit and value to the property.
In contrast, Mike Robinson and Debra Haskell, both real estate appraisers hired by Respondents, testified the property should be valued as two separate parcels. They also testified the easements are subsequent improvements to the property; therefore, they should not be considered in revaluing the two tracts of land because "improvements" were to be excluded according to the valuation clause of the lease. The master stated he found Robinson and Haskell to be highly credible and persuasive.
In looking at the language of the lease, we note it referred to two separate and distinct tracts, and it does not mention the easements. As the master stated in his order, "the lease calls for just what it saysrevaluation under paragraph [four] of the `property' being `leased,' and that is, quite clearly, the two separate and distinct tracts of land referred to [in] the Lease *16 itself." Therefore, we find the clear language of the lease supports the master's conclusion that "[i]t could not have been intended under the Lease itself, or under Section [four] of that Agreement, to address a future easement, sold to the parties a year after the lease was entered into, which was never previously owned by either the landlord or the tenant but by a totally independent third party." We also find the evidence supports the master's conclusion that this was the "only reasonable construction" of the lease when considered as a whole and "[t]o interpret a subsequent sale [the easements] as new leased property is contrary to common sense and would lead to an unjust and absurd result."
Because we affirm the master's finding that the lease was unambiguous and the plain language of the lease negated consideration of the easements in the revaluation of the property, we need not address Appellants' remaining arguments. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not review remaining issues when its determination of another issue is dispositive of the appeal).
CONCLUSION
Accordingly, the master's order is
AFFIRMED.
THOMAS and KONDUROS, JJ., concur.
NOTES
[1] On July 22, 1983, the parties signed an agreement that detailed the provisions to be included in the lease. Four months later, the lease was amended by a supplemental agreement. On January 18, 1984, Eubank, Hugh Cannon, and Palmetto Ford assigned the property lease to 1625 Partnership. Thereafter, on October 30, 1984, the lease was amended to add a new section entitled "Leasehold Mortgage." The lease term began on November 1, 1984.
[2] Tax map numbers XXX-XX-XX-XXX and XXX-XX-XX-XXX.
[3] Hereinafter referred to as "the valuation clause."
[4] This appraisal was completed prior to the acquisition of the easements.
[5] The master did not rule on the motion, stating: "Aren't you getting a little ahead of yourself? . . . You are asking me, essentially, for the ultimate decision in the case. And I've only heard from one side, the other side hadn't moved for any kind of motion, yet." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316002/ | 694 S.E.2d 380 (2010)
GENERAL ELECTRIC CAPITAL CORPORATION
v.
BROWNING MULCH COMPANY, INC. et al.
No. A10A0310.
Court of Appeals of Georgia.
April 19, 2010.
Husch, Blackwell & Sanders, Camden B. Scearce, Jr., for appellant.
Edward H. Warnock, for appellees.
ADAMS, Judge.
General Electric Capital Corporation ("GECC") appeals the trial court's order dismissing with prejudice its Petition for Immediate Writ of Possession and for Damages.
GECC filed its petition against Browning Mulch Company, Inc., f/k/a BFB Logistics, Inc. d/b/a Georgia Nuggets, Inc., Browning Straw Company, Inc. and Bobby F. Browning (collectively "Browning") on February 21, 2008.[1] On February 26, the trial court entered a Temporary Restraining Order against Browning and an Immediate Writ of Possession as to certain personal property in the possession of Browning Mulch, BFB Logistics and Browning Straw. Browning Mulch and BFB Logistics filed a joint Answer and Counterclaim to the Petition, and Bobby Browning filed a separate Answer and Counterclaim. Browning Straw did not file an answer or otherwise enter an appearance below.
The matter was placed on the June 23, 2009, calendar call, but GECC moved for a continuance. Subsequently, on July 13, 2009, the trial court issued an order directing the parties to prepare and file a pretrial brief by 4:00 p.m. on July 31, 2009, and to appear for trial on August 10, 2009. The record contains no evidence that either party prepared a pretrial brief in the case.
On August 19, 2009,[2] the trial court entered a "Dismissal with Prejudice," dismissing the case on the ground that GECC failed to file a pretrial brief and also failed to appear at the August 10 calendar call. The order states that "[f]ollowing the sounding of this case by the Court[,] defendants announced ready, but there was no appearance or announcement by [GECC]. On motion made by defendants' counsel this case is ordered dismissed with prejudice, with costs to [GECC]."
On September 15, 2009, GECC filed a motion to set aside the judgment on the ground that neither its Chattanooga, Tennessee counsel nor its local counsel received the June 13 order directing the parties to file a pretrial brief and placing the case on the August 10 calendar. The motion was supported *381 by affidavits from each counsel. But before the trial court could rule on this motion, GECC filed its notice of appeal on September 18, 2009, 30 days after the entry of the Dismissal with Prejudice.
"An order of dismissal for failure to appear is discretionary with the trial court and is not subject to review by this court in the absence of an abuse of discretion." (Punctuation and footnote omitted.) Maupin v. Vincent, 245 Ga.App. 635, 636(1), 538 S.E.2d 529 (2000). GECC argues on appeal that the trial court abused its discretion by dismissing this action with prejudice. We agree.
OCGA § 9-11-41(b) makes clear that a dismissal for failure to prosecute should not operate as an adjudication on the merits. Moreover, under Uniform Superior Court Rule 14, the trial "court may dismiss without prejudice any civil action ... upon the failure to properly respond to the call of the action for trial...." (Emphasis supplied.) Thus, "[t]hese authorities restrict the dismissal of an action for failure to appear at the call of the case to one without prejudice." (Citation, punctuation and footnote omitted.) Bonner v. Green, 263 Ga. 773, 438 S.E.2d 360 (1994). And to the extent that the dismissal was also based upon the failure of GECC to comply with the order to file a pretrial brief, we note that the record contains no indication that Browning complied with the trial court's order in this regard. Moreover, there is nothing in the record to indicate that GECC failed to comply with or to respond to any other order or communication of the trial court.
Under these circumstances, we find that the trial court abused its discretion in dismissing this case with prejudice, and we reverse. See Bonner, 263 Ga. at 773, 438 S.E.2d 360; Wolfpack Enterprises v. Arrington, 272 Ga.App. 175, 176(1), 612 S.E.2d 35 (2005); Maupin, 245 Ga.App. at 635(1), 538 S.E.2d 529.
Judgment reversed.
SMITH, P.J., and MIKELL, J., concur.
NOTES
[1] We note that Browning failed to file a brief on appeal.
[2] This order was signed on August 11 nunc pro tunc to August 10, 2009. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316010/ | 544 F.3d 911 (2008)
UNITED STATES of America, Appellee,
v.
Danny Ray HART, Appellant.
No. 08-1564.
United States Court of Appeals, Eighth Circuit.
Submitted: September 22, 2008.
Filed: October 15, 2008.
*912 Kevin L. Schriener, argued, St. Louis, MO, for appellant.
Paul W. Hahn, AUSA, argued, Cape Girardeau, MO, for appellee.
*913 Before MURPHY, ARNOLD, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
A jury convicted Danny Ray Hart of aiding and abetting the distribution of at least five grams of cocaine base, and possessing with intent to distribute five grams or more of cocaine baseboth in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). The district court[1] sentenced Hart to 195 months' imprisonment, followed by eight years of supervised release. Hart appeals, claiming Fourth Amendment, Batson, and sentencing errors. Jurisdiction being proper under 28 U.S.C. § 1291, this court affirms.
I.
Melissa Dawn Adams contacted Hart on July 17, 2006, to acquire crack cocaine. Hart gave Adams 11.7 grams of cocaine base, which she sold in a controlled purchase. An undercover police officer observed Hart's role in the controlled purchase. A grand jury indicted Hart on June 21, 2007, for aiding and abetting the sale of crack cocaine.
Three weeks after the indictment, police obtained a search warrant for Hart's house. According to the supporting affidavit, a reliable confidential informant notified police on July 9, 2007, that he had observed a large quantity of drugs in Hart's residence. The affidavit also described a controlled purchase of crack cocaine from Hart on July 11.
Officers executed the search warrant on July 13. Finding Hart at home alone, they arrested him. Police found 9.2 grams of crack cocaine, marijuana, plastic baggies, $1,600 in cash, surveillance system equipment, and a briefcase with records. They also seized electronic appliances possibly given to Hart for drugs.
Hart moved to suppress the items seized. The district court suppressed the electronic appliances, finding an insufficient link to drug sales. The court denied the rest of Hart's motion.
During voir dire, the government peremptorily struck the only two African-Americans in the jury pool. In response to Hart's Batson challenge, the government explained that it struck Venireperson 37 because her brother was charged with drug possession, and Venireperson 41 because his wife was charged with a drug offense. The court rejected the Batson challenge.
Sentencing Hart, the district court found him responsible for 1,114.9 grams of cocaine base. The court added the quantity from the controlled purchase, 11.7 grams, to the quantity found in Hart's home, 9.2 grams, for a total of 20.9 grams. The court also accepted Adams's trial testimony that she obtained two grams of crack cocaine from Hart every day for 18 months. This made Hart responsible for an additional 1,094 grams of cocaine base as relevant conduct under U.S.S.G. § 1B1.3(a).[2] The court determined the Guidelines range as 188-to-235 months before sentencing Hart to 195 months' imprisonment.
II.
Hart argues that the district court erred by denying his motion to suppress because the warrant application does not establish probable cause. This court reviews the district court's factual findings for clear error and its legal conclusions de *914 novo. United States v. Richardson, 537 F.3d 951, 956 (8th Cir.2008).
Hart contends that the warrant affidavit fails to establish probable cause because it does not indicate that the controlled purchase was unrecorded, that only the informant witnessed the sale, or that police did not use marked bills. Hart also asserts that the substance sold during the July 11 controlled purchase was not cocaine base since the government never introduced it at trial or during sentencing.
"[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation. . . ." U.S. Const. amend. IV. "Probable cause has been shown if the warrant application and affidavit describe circumstances showing `a fair probability that contraband or evidence of a crime will be found in a particular place.'" United States v. Robinson, 536 F.3d 874, 877 (8th Cir.2008), quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). "When reviewing the sufficiency of an affidavit to support a finding of probable cause, we consider the totality of the circumstances." United States v. Jeanetta, 533 F.3d 651, 654 (8th Cir.2008). A search warrant may be invalidated because of omitted facts if (1) "the police omitted facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading" and (2) "the affidavit, if supplemented by the omitted information would not have been sufficient to support a finding of probable cause." United States v. Williams, 477 F.3d 554, 557 (8th Cir.2007) (quotations and citation omitted).
The affidavit established probable cause. It stated that the confidential informant had provided reliable information in the past, and it described the July 9 tip and July 11 controlled purchase. "The statements of a reliable confidential informant are themselves sufficient to support probable cause for a search warrant." United States v. Wright, 145 F.3d 972, 975 (8th Cir.1998); see also United States v. Brown, 499 F.3d 817, 821 (8th Cir.2007), cert. denied, ___ U.S. ___, 128 S. Ct. 1222, 170 L. Ed. 2d 76 (2008) (upholding search warrant based on a tip from a "reliable confidential informant" even though the affidavit did not describe the basis of the informant's reliability). In United States v. Durham, 470 F.3d 727 (8th Cir.2006), cited by Hart, a warrant was upheld when an informant's tip was independently corroborated. Moreover, the Durham court recognized that a warrant is also valid if "the informant has provided reliable information in the past"as is the case here. See id. at 733.
In this case, the omitted facts are irrelevant. The reliable informant's tip and the controlled buy established probable cause.
III.
Hart also appeals the district court's rejection of his Batson challenge. This court reviews a district court's denial of a Batson challenge for clear error. United States v. Haskell, 468 F.3d 1064, 1071 (8th Cir.2006), cert. denied, ___ U.S. ___, 127 S. Ct. 2446, 167 L. Ed. 2d 1144 (2007).
Under Batson, a district court applies a three-step process when a defendant alleges that a prosecutor's juror strikes are racially motivated.
First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Although the prosecutor must present a comprehensible reason, the second step of this process does not demand an explanation *915 that is persuasive, or even plausible; so long as the reason is not inherently discriminatory, it suffices. Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating the persuasiveness of the justification proffered by the prosecutor, but the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.
Rice v. Collins, 546 U.S. 333, 338, 126 S. Ct. 969, 163 L. Ed. 2d 824 (2006) (quotations and citations omitted).
Here, Hart challenged the government's peremptory strikes against the two African-American venire members. In response, the prosecutor stated that he struck them because each had a close family member prosecuted for drugs. The district court then found that Hart did not show purposeful discrimination, since every similarly-situated prospective juror was struck either by the government or by the court. Of the prospective jurors whose family members had drug-related criminal histories, the district court dismissed two through random selection, the government struck two for cause, and the government peremptorily struck the remaining four.
The court's Batson ruling was not clearly erroneous. See United States v. Maxwell, 473 F.3d 868, 871 (8th Cir.2007), cert. denied, ___ U.S. ___, 127 S. Ct. 2292, 167 L. Ed. 2d 1121 (2007) (in drug case, striking prospective juror who favored drug legalization and had family member facing drug charges was not a Batson violation); United States v. McKay, 431 F.3d 1085, 1092 (8th Cir.2005) (finding no Batson violation in drug case when the government peremptorily struck prospective juror with two family members convicted of drug felonies).
Hart's reliance on Snyder v. Louisiana, ___ U.S. ___, 128 S. Ct. 1203, 170 L. Ed. 2d 175 (2008), is unavailing. There, the Supreme Court found a Batson violation when the government peremptorily struck an African-American who expressed scheduling concerns, but did not strike similarly-situated white venire members. Id. at 1209-12. Here, however, all venire members similarly situated to the two African-Americans were struck. There was no Batson violation.
IV.
Hart also contends that the district erred at sentencing. This court reviews the district court's relevant conduct findings for clear error, and its interpretation of the Sentencing Guidelines de novo. United States v. Hogan, 539 F.3d 916, 925 (8th Cir.2008).
Hart asserts that the district court clearly erred by finding 1,114.9 grams of cocaine base as relevant conduct under U.S.S.G. § 1B1.3(a). The court combined the physical evidence, 20.9 grams of cocaine base, with an extrapolated 1,094 grams from Adams's trial testimony. Hart notes that the government may prove quantities by a preponderance of evidence, and that the district court may estimate amounts. See United States v. Cole, 537 F.3d 923, 929 (8th Cir.2008) (applying preponderance of evidence standard to determine drug quantity at sentencing); United States v. King, 518 F.3d 571, 575 (8th Cir.2008) (affirming drug quantity calculation based on extrapolation); U.S.S.G. § 2D1.1 n. 12 ("the court shall approximate the quantity of the controlled substance"). Hart maintains that the district court erred by relying on Adams's testimony, which he attacks as incredible as a matter of law.
Adams testified that, beginning in the spring of 2005, she purchased crack cocaine *916 "[a]t least twice a day" from Hart. She stated that each of her two daily purchases was for one gram, at $40 per gram. Adams said she cleaned Hart's house for money and worked at a country club; she also testified that she eventually stopped buying drugs from Hart because she owed him money.
Adams's testimony is incredible as a matter of law, according to Hart, because Adams lacked the money to purchase 1,094 grams of crack cocaine at $40 a grama drug habit costing more than $40,000 over eighteen months. Hart stresses that Adams has been a drug addict for 15 years, is bipolar, and has three forgery convictions.
The district court specifically found Adams's testimony credible. "It is. . . well established that in sentencing matters a district court's assessment of witness credibility is quintessentially a judgment call and virtually unassailable on appeal." United States v. Jones, 539 F.3d 895, 897 (8th Cir.2008), quoting United States v. Quintana, 340 F.3d 700, 702 (8th Cir.2003). The court noted that while it was "unreasonable" to believe that Adams purchased two grams of crack cocaine from Hart every single day, "she did clearly purchase in excess of 500 grams and really probably closer to the 1,094 grams of cocaine base from Mr. Hart." Since U.S.S.G. § 2D1.1(a)(3) establishes a base offense level of 34 when the defendant is responsible for at least 500 grams, Hart must show that Adams's testimony fails to support a finding of at least 500 grams.
The district court did not clearly err by finding relevant conduct of at least 500 grams of cocaine base. Hart cites cases noting that testimony is incredible as a matter of law if based on physical impossibility. See United States v. Hernandez, 13 F.3d 248, 252-53 (7th Cir.1994) (testimony is incredible as a matter of law if it was "impossible under the laws of nature for the occurrence to have taken place at all"); United States v. Blas, 947 F.2d 1320, 1325 (7th Cir.1991) (testimony is incredible if it was "physically impossible for the witness to observe that which he or she claims occurred, or impossible under the laws of nature"). Adams's testimony was not based on physical impossibility. Adams was addicted to crack cocaine and regularly visited Hart, a drug dealer. It is not incredible as a matter of law to find that Hart supplied her with at least 500 grams of cocaine base over 18 months.
V.
The judgment of the district court is affirmed.
NOTES
[1] The Honorable E. Richard Webber, United States District Judge for the Eastern District of Missouri.
[2] The district court reached 1,094 grams by multiplying two grams by 547, the number of days in 18 months. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315999/ | 996 P.2d 1125 (2000)
100 Wash.App. 391
STATE of Washington, Respondent,
v.
Robert Leonard HAHN, Appellant.
Nos. 23450-5-II, 23451-3-II, 24127-7-II, 24130-7-II.
Court of Appeals of Washington, Division 2.
April 14, 2000.
*1127 Pattie Mhoon, Tacoma, Darby Nicole Ducomb, Seattle (Court Appointed), for Appellant.
John Christopher Hillman, Barbara L. Corey-Boulet, Pierce County Deputy Pros. Atty's, Tacoma, for Respondent.
*1126 SEINFELD, J.
As part of a plea bargain, Robert Hahn pleaded guilty to two counts of second degree assault with deadly weapon enhancements. He now seeks to have the deadly weapon enhancements deleted from his sentence, arguing that he assaulted the victims with his fists and feet and that the statutory definition of deadly weapon does not include these appendages. We conclude that Hahn is bound by his plea bargain.[1]
FACTS
The State charged Hahn with first degree assault for the June 22, 1997, beating of Nathan Mohler and by separate information with first degree assault for the August 18, 1997, beating of Michael D. Warner.[2] The Mohler information alleged use of a deadly weapon; the Warner information did not.
On the day of trial, Hahn entered into a plea agreement whereby he agreed to plead guilty to two counts of assault in the second degree with deadly weapon enhancements. He stated that he had used his fist as a deadly weapon against Mohler and his foot as a deadly weapon against Warner.
In return, the State agreed to recommend 14-month standard range sentences, 12-month deadly weapon enhancements, and restitution. It also agreed to dismiss an unrelated burglary charge, and to concur in treating the two assault convictions as one strike.
The presentence report writer recommended a sentence for both counts totaling 26 months: 14 months for the assaults plus 12 months for the deadly weapon enhancement, running concurrently. At sentencing, Hahn opposed the deadly weapon enhancements *1128 contending, among other things, that neither fists nor feet fall under the statutory definition of a deadly weapon.
The trial court sentenced Hahn to 12 months for each assault to run concurrently and 12 months on each deadly weapon enhancement to run consecutively. In its oral ruling, the trial court stated that notwithstanding any legal questions as to the appropriate length of the sentence, it would have arrived at the same sentence on the basis of aggravating factors set forth in both presentence reports.
The presentence reports and medical bills indicated that both Mohler and Warner suffered serious injuries. After Hahn, with the aid of an accomplice, hit Warner multiple times in the head and body and jumped on his body, Warner was transported to the hospital with a ruptured spleen and internal bleeding. Hahn kicked Mohler several times in the head while an accomplice held him down. As a result, Mohler was in a coma for a month and required multiple surgeries for his brain injuries. He was left with impaired coordination and short-term memory loss.
The State sought restitution in the amounts of $66,973.59 for Mohler's medical treatment and $24,662.37 for Warner's treatment, plus another $325 for his personal property loss. Hahn complained that the medical records were insufficient to establish the correct amount of restitution but did not accept the court's offer of additional time to investigate the restitution claims. The trial court subsequently ordered restitution in the amounts requested.
I. DEADLY WEAPON ENHANCEMENT
Hahn argues that the trial court erred in imposing sentence enhancements because fists and feet cannot constitute deadly weapons as RCW 9.94A.125 uses that term. The State concedes that "given the particular factual record in this case," neither Hahn's feet nor his fists fit within the statutory definition of deadly weapon.[3] Nonetheless, the State argues (1) that Hahn should be bound by his bargain, and (2) factual or technical deficiencies do not invalidate an otherwise valid plea agreement.
"Plea agreements which are intelligently and voluntarily made, with an understanding of the consequences, are accepted, encouraged and enforced in Washington." In re PRP of Breedlove, 138 Wash.2d 298, 310, 979 P.2d 417 (1999) (citing State v. Perkins, 108 Wash.2d 212, 216, 737 P.2d 250 (1987)). Plea agreements "are regarded and interpreted as contracts and both parties are bound by the terms of a valid plea agreement." Breedlove, 138 Wash.2d at 309, 979 P.2d 417 (citing State v. Talley, 134 Wash.2d 176, 182, 949 P.2d 358 (1998); State v. Wakefield, 130 Wash.2d 464, 480, 925 P.2d 183 (1996) (Sanders, J., concurring in part, dissenting in part)). Hahn has not moved to set aside the plea, nor does he allege that he entered the plea agreement involuntarily.
When the record reveals that the defendant made a voluntary and intelligent decision to enter a plea agreement, factual or technical deficiencies underlying the agreement will not invalidate it. See In re PRP of Barr, 102 Wash.2d 265, 269-71, 684 P.2d 712 (1984) (in indecent liberties case, parties misunderstood statutory age requirement, but defendant acknowledged guilt notwithstanding error); State v. Majors, 94 Wash.2d 354, 357-58, 616 P.2d 1237 (1980) (reasoning in dictum that if technical defect is not jurisdictional and defendant enters plea voluntarily and knowingly and is apprised of consequences, plea agreement is valid). But the trial court lacks the authority to impose a sentence pursuant to a plea agreement that is not authorized by statute. In re PRP of Moore, 116 Wash.2d 30, 33, 803 P.2d 300 (1991).
We agree with our commissioner's ruling on this matter. The commissioner wrote, in part:
[Hahn] is bound by the bargain he made. See Majors. In Majors, the court upheld a negotiated plea of guilty to second degree *1129 murder and an habitual offender classification, despite the fact that the defendant was not technically an habitual offender. The court found that the defendant had bargained for and received a less severe minimum sentence than he would have been subject to on the original charge of first degree murder. See also Barr (court held that a plea does not become invalid because a defendant chooses to plead to a lesser charge that was not committed in order to avoid conviction for a greater offense.)
Hahn understood when he entered his pleas to the amended informations that he was pleading guilty to second degree assault as charged. Both informations alleged that he committed the offenses with "a deadly weapon as defined in RCW 9.94A.125, and invoking the provisions of RCW 9.94A.310 and adding additional time to the presumptive sentence as provided in RCW 9.94A.370." His guilty plea statements contain paragraphs indicating he was pleading guilty to the crimes as charged in the information, and his own statements asserted that he had used a deadly weapon. When the trial court asked whether he understood and adopted each of the statements contained in those forms, Hahn answered that he did. The plea forms also contain paragraphs indicating Hahn's understanding that the standard range sentence he faced was "12+ - 14 + 12 months deadly weapon consecutive to all other time." Moreover, at the plea hearing, the prosecuting attorney advised the court that the standard range would be 36 to 38 months, based on consecutive 12-month deadly weapon enhancements on two concurrent sentences of 12 or 14 months and defense counsel did not dispute this figure.
The first degree assaults with which Hahn was initially charged carried a sentencing range of 93 to 123 months. See RCW 9.94A.030(31)(a), RCW 9.94A.320, RCW 9.94A.310. Moreover, the sentences would have had to be consecutive. RCW 9.94A.400(1)(b). Hahn's negotiated plea to a standard range sentence of 36 to 38 months on reduced charges allowed him to avoid the potential of a substantially increased penalty.
Commissioner's Order at 5-6 (citations and footnotes omitted).
This case is distinguishable from In re PRP of Hews, 108 Wash.2d 579, 593-94, 741 P.2d 983 (1987), where the court was dealing with an incompetent defendant. The Hews court held that "the defendant must understand the `essential elements of the charge to which he pleads guilty.'" 108 Wash.2d at 591, 741 P.2d 983.
Hahn has presented no evidence showing that he did not understand the elements of the crime. Thus, this situation is more like Majors, where the Supreme Court stated, "there is `no reason why a defendant who agrees to be designated a habitual criminal should not he held to his bargain', at least where there was some benefit to the defendant in agreeing to the bargain." Hews, 108 Wash.2d at 589, 741 P.2d 983 (quoting Majors, 94 Wash.2d at 358, 616 P.2d 1237). Consequently, Hahn has failed to show that the deadly weapon enhancements were improper. Moore, 116 Wash.2d at 33, 803 P.2d 300.
II. CONSECUTIVE DEADLY WEAPON ENHANCEMENTS
Hahn argued before our commissioner that In re Charles, 135 Wash.2d 239, 955 P.2d 798 (1998), requires that the terms of confinement for the sentence enhancements run concurrently when the predicate offenses are to run concurrently. The commissioner agreed and neither party sought modification of the commissioner's ruling; thus, we do not revisit the issue. As the commissioner stated, "The sentence as imposed is improper. Remand is necessary to permit the trial court to consider whether to impose an exceptional sentence or make the deadly weapon enhancements concurrent." Order at 7. Of course, if the trial court imposes an exceptional sentence, it must enter written findings of fact and conclusions of law pursuant to RCW 9.94A.120(3). Breedlove, 138 Wash.2d at 313, 979 P.2d 417; State v. Murphy, 98 Wash.App. 42, 51, 988 P.2d 1018 (1999).
*1130 III. RESTITUTION
Hahn contends that the trial court violated his right to due process by ordering restitution based solely on the Department of Social and Health Services' (DSHS) "summary report itemizing amounts paid by DSHS to various providers." He contends this report did not adequately connect the expenditures to the crimes.
The trial court derives its authority to order restitution entirely from statutes. State v. Moen, 129 Wash.2d 535, 543, 919 P.2d 69 (1996); State v. Smith, 119 Wash.2d 385, 389, 831 P.2d 1082 (1992); State v. Davison, 116 Wash.2d 917, 919, 809 P.2d 1374 (1991). We review a restitution order under the abuse of discretion standard. State v. Enstone, 137 Wash.2d 675, 679, 974 P.2d 828 (1999); Davison, 116 Wash.2d at 919, 809 P.2d 1374. A trial court abuses its discretion when its decision is manifestly unreasonable, or exercised on untenable grounds, or imposed for untenable reasons. Enstone, 137 Wash.2d at 679-80, 974 P.2d 828.
The following two statutory principles regarding the imposition of restitution are particularly relevant here: (a) "restitution ordered by a court pursuant to a criminal conviction shall be based on easily ascertainable damages for injury to or loss of property, actual expenses incurred for treatment for injury to persons, and lost wages resulting from injury," RCW 9.94A.142(1) and (b) "[r]estitution shall be ordered whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property," RCW 9.94A.142(2).[4]
Here, there is no question that DSHS qualifies as a victim for purposes of restitution under RCW 9.94A.142. See Davison, 116 Wash.2d at 920-21, 809 P.2d 1374 (city is "victim" for purposes of restitution because it paid wages to victim while victim could not work); State v. Jeffries, 42 Wash. App. 142, 144-45, 709 P.2d 819 (1985) (reimbursement to L & I for disability and medial expenses of assault victim); former RCW 9.94A.030(37) (1996). DSHS paid for the victims' expenses and then sought reimbursement of those payments through the prosecutor's victim assistance unit. See RCW 74.09.180; RCW 43.20B.060 (provisions authorizing DSHS to seek reimbursement).
Further, "easily ascertainable" damages "need not be established with specific accuracy." State v. Fleming, 75 Wash.App. 270, 274, 877 P.2d 243 (1994) (citing RCW 9.94A.142(1); State v. Johnson, 69 Wash.App. 189, 194, 847 P.2d 960 (1993); State v. Pollard, 66 Wash.App. 779, 785, 834 P.2d 51 (1992)). Evidence of damages is sufficient if it provides the trial court with a reasonable basis for estimating losses and requires no speculation or conjecture. Fleming, 75 Wash.App. at 274-75, 877 P.2d 243; Pollard, 66 Wash.App. at 785, 834 P.2d 51. The trial court may determine the amount of restitution "by either (1) the defendant's admission or acknowledgment or (2) a preponderance of the evidence." State v. Ryan, 78 Wash.App. 758, 761, 899 P.2d 825 (1995) (citing State v. Tindal, 50 Wash.App. 401, 403, 748 P.2d 695 (1988)); Enstone, 137 Wash.2d at 682, 974 P.2d 828.
But there must be a causal relationship between the victims' medical expenses and the crime committed. State v. Dedonado, 99 Wash.App. 251, 256, 991 P.2d 1216 (2000); State v. Woods, 90 Wash.App. 904, 907, 953 P.2d 834, review denied, 136 Wash.2d 1021, 969 P.2d 1064 (1998). "A causal connection exists when, `but for' the offense committed, the loss or damages would not have occurred." State v. Enstone, 89 Wash.App. 882, 886, 951 P.2d 309 (1998) (citing State v. Hunotte, 69 Wash.App. 670, 676, 851 P.2d 694 (1993)), aff'd, 137 Wash.2d 675, 974 P.2d 828 (1999).
Hahn, citing State v. Bunner, 86 Wash. App. 158, 160, 936 P.2d 419 (1997), contends that the DSHS records amounted to nothing more than a list of expenses that bear no relationship to the claimed damages. In Bunner, the trial court relied on a DSHS medical recovery report that itemized amounts the State had paid for the victim's *1131 treatment but did not indicate "why medical services were provided." 86 Wash.App. at 160, 936 P.2d 419. The reviewing court held that the evidence was insufficient to establish a causal relationship between the expenses and the charged crime. Thus, it reversed the restitution order. Bunner, 86 Wash.App. at 162, 936 P.2d 419.
Although the record here contains evidence of the victims' substantial injuries, as in Bunner, there is no statement linking the charged amounts to any particular symptoms or treatments.[5] Regarding Warner, the medical reports merely state the name of the service provider, the service date, date paid, billed amount and amount paid. Even if we infer a connection from the fact that nearly all the individually listed services were provided within five days of the crime, these services account for only $3,921.52 of DSHS's total claim of $24,662.37.[6] Thus, $20,740.85 remains unexplained. Bunner, 86 Wash.App. at 160, 936 P.2d 419.
Regarding Mohler, again the record merely identifies numerous medical services rendered either on the date of the crime or shortly thereafter. This circumstantial evidence, alone, is insufficient to allow the sentencing court to estimate losses by a preponderance of the evidence without speculation or conjecture. Bunner, 86 Wash.App. at 162, 936 P.2d 419.
Accordingly, we remand the restitution orders to the trial court for the taking of additional evidence to determine the causal connection between the DSHS expenditures and the charged crimes. Dedonado, 99 Wash.App. at 256, 258, 991 P.2d 1216 (remanding so trial court could fix proper amount of restitution). We also remand for resentencing in light of Charles, as previously ordered in the commissioner's unchallenged ruling.
ARMSTRONG, C.J., and HUNT, J., concur.
NOTES
[1] A commissioner of this court previously affirmed the imposition of the deadly weapon enhancements and the restitution order but remanded for resentencing in light of In re Charles, 135 Wash.2d 239, 955 P.2d 798 (1998). Hahn moved to modify those portions of the commissioner's ruling that upheld the trial court, and this court agreed to consideration of the matter by a panel of judges. Order dated October 21, 1999.
[2] Mohler: Pierce County Cause No. 97-1-02760-0; Warner: Pierce County Cause No. 97-1-03523-8. Hahn separately appealed from each case and this court consolidated the appeals under cause number 23450-5-II.
[3] The State did not charge Hahn with assaulting his victims with a deadly weapon. RCW 9A.36.021(1)(c). Rather, the State charged him with intentionally assaulting his victims and thereby recklessly inflicting substantial bodily harm, RCW 9A.36.021(1)(a), and both plea agreements reflect those charges.
[4] Neither victim applied for relief under the crime victims' compensation act (CVCA), RCW 7.68. Thus, the State concedes that RCW 9.94A.142(4), which provides for restitution where the victim is entitled to benefits under the CVCA, is not applicable.
[5] Hahn also complains that the DSHS records do not name him as defendant but rather a person named Moser. However, the PSI indicates that both Hahn and Moser assaulted Warner. And at the restitution hearing, Hahn identified Moser as a separately charged codefendant.
[6] These figures do not include Warner's separate restitution estimate of $325 in personal property loss. And we do not include certain DSHS payments duplicated in the record. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312868/ | Harry D. Leinenweber, Judge
Defendants, Conservation Police Officers Nicholas Reid and David Wollgast (collectively the "Defendants" or "Defendant Officers"), move for summary judgment. For the reasons stated herein, Defendants' Motion (Dkt. No. 34) is granted.
I. BACKGROUND
The following facts are undisputed unless designated otherwise. Plaintiff William Murawski ("Murawski") is a detective with the Chicago Police Department (Pl.'s Resp. to Defs.' Stmt. of Facts ("SOF") ¶ 1, Dkt. No. 44.) He is also a member of the Wilmington Recreation Club (the "WRC")-a not-for-profit organization that owns and manages recreational property in Wilmington, Illinois. (SOF ¶ 2.) The WRC and John Weitendorf ("Weitendorf") own all the land adjacent to an artificial lake at issue in this case. (Defs.' Resp. to Pl.'s Stmt. of Additional Facts ("SOAF") ¶ 1, Dkt. No. 52.) The lake was created over 50 *1001years ago after strip mining operations ceased and the strip-mining pit was filled in with water. (SOAF ¶ 3; SOF ¶ 4.) The lake is part of a water channel that is at least 4.7 miles long. (SOAF ¶ 4.) Water flows into and out of the lake through drainage culverts. (SOAF ¶ 5.) Defendants contend, however, that such water flow does not occur consistently, only at times; for example, after heavy rain. (Id. )
The WRC owns at least a portion of this lake. (SOF ¶ 4.) Pursuant to his WRC membership, Murawski maintained a dock on the lake and had permission to boat and fish on at least this portion of the lake. (SOAF ¶ 2.) The parties dispute, however, whether Weitendorf also owns a portion of the lake, and, if so, whether Murawski had permission to boat and fish on that portion of the lake. (SOF ¶ 4.) Weitendorf's property is surrounded by a six-foot-high fence, which continues across the water of the lake on an overhead cable. (SOF ¶ 5.) This fence separated the lake into two parts for over 40 years. (Id. ) Sometime during the summer of 2015, a tornado damaged the fence, creating a hole large enough for a boat to pass through. (Id. ) Despite acknowledging the existence of such a fence, Murawski disputes that the fence delineated a portion of the lake as belonging solely to Weitendorf. (Id. ) With this backdrop in mind, the Court proceeds with an overview of the incident and subsequent investigation leading up to Murawski's arrest and criminal prosecution, all of which form the basis of this civil lawsuit.
A. Incident and Investigation
On September 17, 2015, Murawski and a male companion went boating and fishing out on the lake. (SOF ¶ 7.) Weitendorf observed the two, got on a boat, and approached them. (Id. ) He informed the men that they were trespassing on his private property and asked them to leave. (SOF ¶ 8.) Murawski refused, responding that he had a right to fish on that portion of the lake. (Id. ) The following day, Weitendorf called Defendant Officer Reid of the Illinois Department of Natural Resources Conservation Police to report the alleged trespass. (SOF ¶ 11.) Weitendorf then followed up by sending Officer Reid a letter summarizing his statement of the incident and attaching a photograph of Murawski in the boat on what Weitendorf purports was his portion of the lake. (SOF ¶ 12.) His lawyer also sent a letter to Officer Reid, which stated that Weitendorf was the legal owner of that portion of the lake and included a copy of the deed and legal description for Weitendorf's property. (SOF ¶ 13.) Thereafter, Officer Reid began his investigation into the incident.
On September 19, 2015, Officer Reid met with Weitendorf and WRC's manager, Brad Southall ("Southall"). (SOF ¶ 14.) In that meeting, Southall identified Murawski as one of the occupants of the boat in the photograph Weitendorf took, and informed Officer Reid that the WRC's rules prohibit members from crossing through the fence to fish on Weitendorf's side of the lake. (SOF ¶ 15.) Later in his deposition, however, Southall admitted that his latter statement was probably an "unwritten rule," and to insinuate the rule as anything more than that was "an incorrect statement" and "an assumption that [he] should not have made." (Brad Southall Dep. 91:20-24; 92:1-14, Ex. 4 to Defs.' Mot. for Summ. J., Dkt. No. 31-4.)
On September 29, 2019, Weitendorf called Defendant Officer Wollgast, also of the Illinois Department of Natural Resources Conservation Police, to report that someone had cut the fence marking the boundary between his side of the lake and that of the WRC's. (SOF ¶ 16.) Officer Wollgast's investigation of the incident was inconclusive, though he did discover that *1002someone had used channel locks to cut the fence down entirely. (SOF ¶ 17.)
Officer Wollgast later reached out to and interviewed Murawski, who confirmed that he had been on Weitendorf's side of the lake on September 17, 2015. (SOF ¶¶ 18-19.) In the interview, Murawski asserted that the lake was part of a watercourse since there was drainage into and out of the lake through a culvert. (SOF ¶ 20.) As such, Murawski believed he had riparian rights to boat and fish on any portion of the lake. (SOF ¶¶ 20-21.) He later sent Officer Wollgast two Illinois state court opinions addressing riparian rights: Beacham v. Lake Zurich Prop. Owners Ass'n , 123 Ill.2d 227, 122 Ill.Dec. 14, 526 N.E.2d 154 (1988), and LWL Land Trust v. Werner , 2011 IL App (5th) 100100-U, 2011 WL 10500890 . (SOF ¶ 21.) Both Officer Wollgast and Officer Reid reviewed some aspect of these opinions, in addition to a more recent Illinois Supreme Court case addressing riparian rights: Alderson v. Fatlan , 372 Ill.App.3d 300, 311 Ill.Dec. 95, 867 N.E.2d 1081 (2007). (SOF ¶ 23; SOAF ¶¶ 16-18.) Officer Reid also consulted with a tax assessor to ascertain that Weitendorf owned the portion of the lake in dispute. (SOF ¶ 24.) Based on the foregoing, Officers Reid and Wollgast reported to the Will County State's Attorney's Office and recommended that the Office file charges against Murawski for trespassing. (SOF ¶ 25; SOAF ¶ 32.)
B. Arrest and Criminal Prosecution
Defendant Officers' report to the State's Attorney's Office included Weitendorf's signed statement; the legal deed and description of Weitendorf's property; a summary or copy of the aforementioned cases pertaining to riparian rights; and various photographs and other materials. (SOF ¶ 26.) Assistant State's Attorney Frank Byers ("Byers") reviewed the report and prepared a complaint, charging Murawski with one count of Criminal Trespass to Real Property, in violation of 720 ILCS 5/21-3. (SOF ¶ 27.) Officer Reid signed that complaint. (Id. ) Byers also requested and received authorization for an arrest warrant, which led to Murawski presenting himself to the Joliet Police Department. (SOF ¶¶ 28-29.)
Assistant State's Attorney Jaclyn Hilderbrand ("Hilderbrand") was assigned to prosecute Murawski, with a trial date set for April 14, 2016. (SOF ¶ 30.) Hilderbrand issued subpoenas to both Defendant Officers and Weitendorf, to no avail. (SOAF ¶¶ 38-39; SOF ¶ 31.) For personal reasons, each of the witnesses was unable to appear on April 14, 2016. (Id. ) The court presiding over that prosecution denied Hilderbrand's motion to continue the trial, which resulted in Hildebrand dismissing the case nolle prosequi . (SOAF ¶ 40; SOF ¶¶31-32.) Hilderbrand later testified that she intended to refile the trespass charges against Murawski, but ultimately decided not to after Murawski's defense lawyer allegedly apologized on Murawski's behalf and informed her that Murawski would not go onto Weitendorf's land. (SOF ¶¶ 34-35.) Murawski denies that his lawyer ever apologized or made any such representation. (SOAF ¶ 42; SOF ¶ 35.)
C. Instant Litigation
Because of the foregoing, Murawski brought the instant suit, alleging three claims against Officers Reid and Wollgast: (1) a 42 U.S.C. § 1983 false arrest claim (Count I); (2) an Illinois false arrest claim (Count II); and (3) an Illinois malicious prosecution claim (Count III). Defendants now move for summary judgment on all claims, arguing that they had probable cause for the arrest, and, in the alternative, have immunity from suit.
II. ANALYSIS
Summary judgment is appropriate when there are no genuine issues of material *1003fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a) ; see also Liu v. T & H Mach., Inc. , 191 F.3d 790, 794 (7th Cir. 1999) (citation omitted). A genuine issue of material fact exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Pugh v. City of Attica , 259 F.3d 619, 625 (7th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). The Court must construe all facts and reasonable inferences in the light most favorable to the non-moving party. Abdullahi v. City of Madison , 423 F.3d 763, 773 (7th Cir. 2005) (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505 ).
A. Section 1983 False Arrest Claim
Defendants argue that Murawski's § 1983 claim fails as a matter of law on two grounds: (1) Defendants had probable cause to arrest Murawski for trespass; and (2) Defendants are entitled to qualified immunity. The first ground is dispositive; thus, the second ground need not be considered.
1. Probable Cause
Courts look to the totality of the facts and circumstances known to the officer at the time of the arrest to determine whether the officer had probable cause to make an arrest. Abbott v. Sangamon Cnty., III. , 705 F.3d 706, 714 (7th Cir. 2013). A probable cause determination is an objective inquiry. Whren v. United States , 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Given the totality of the circumstances, courts ask whether a reasonable, prudent person in the officer's position would believe that the arrestee had committed, was committing, or was about to commit a crime, giving rise to probable cause and justifying an arrest. See Thayer v. Chiczewski , 705 F.3d 237, 246 (7th Cir. 2012) ; Michigan v. DeFillippo , 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). Probable cause deals with probabilities, not hard certainties. Illinois v. Gates , 462 U.S. 213, 231, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). It requires more than a hunch, but not necessarily a finding that it was more likely than not that the arrestee was engaged in criminal activity-the officer's belief that the arrestee was committing a crime need only be reasonable. See Henry v. United States , 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). Usually in a § 1983 false arrest case "the jury determines whether the arrest was supported by probable cause; but if the underlying facts are undisputed, the court can make the decision on summary judgment." Abbott , 705 F.3d at 714 (citing Chelios v. Heavener, 520 F.3d 678, 686 (7th Cir. 2008) ).
In trespass cases, probable cause exists "where an officer could reasonably believe, given his knowledge of the facts and circumstances at the time, that the defendant committed or was committing trespass." Kampinen v. Martinez , 102 Fed. Appx. 492, 497 (7th Cir. 2004) (citing United States v. Kincaid , 212 F.3d 1025, 1028 (7th Cir. 2000) ). Murawski was charged under an Illinois trespass statute, which provides that a person commits criminal trespass to real property when that person "remains upon the land of another, after receiving notice from the owner or occupant to depart." 720 ILCS 5/21-3(a) ; see also People v. Kraft , 277 Ill.App.3d 221, 213 Ill.Dec. 857, 660 N.E.2d 114, 117 (1995). The notice requirement is satisfied when the perpetrator "has been notified personally, either orally or in writing." 720 ILCS 5/21-3(b).
Murawski raises a host of arguments against finding probable cause. His arguments assert, in one form or another, that a genuine issue of material fact exists as to the status and ownership of the lake, which, in turn, allegedly determines the existence of probable cause. To elaborate, *1004under Illinois law, an "owner of a part of a lake bed has a right to the reasonable use and enjoyment of the entire lake surface." Beacham v. Lake Zurich Prop. Owners Ass'n , 123 Ill.2d 227, 122 Ill.Dec. 14, 526 N.E.2d 154, 157 (1988). However, such "riparian rights do not extend to artificial bodies of water." Alderson v. Fatlan , 231 Ill.2d 311, 325 Ill.Dec. 548, 898 N.E.2d 595, 601 (2008). This is because "unlike a natural body of water, which exists because of natural processes, an artificial body of water is the result of someone's labor," and thus, "is not a natural resource to be shared by all." Id.
There is an exception, however. Riparian rights are extended to an artificial lake if the lake is considered part of a "watercourse." Id. ; see also Nottolini v. LaSalle Nat. Bank , 335 Ill.App.3d 1015, 270 Ill.Dec. 421, 782 N.E.2d 980, 983 (2003). Here, the parties agree that the lake is artificial; however, they dispute whether the lake is part of a watercourse. If considered as such, then Murawski, as a WRC member, has riparian rights to access the lake in its entirety. If not, then Murawski has no such rights. By extension, Murawski argues that if he has riparian rights to access the entirety of the lake, then the Officers did not have probable cause to arrest him. That determination, Murawski contends, is for the trier of fact.
The Court disagrees. The question of whether Murawski has riparian rights to access the lake is not dispositive of Defendant Officers' probable cause determination. Here, Defendant Officers received an incident report, which contained a signed statement by Weitendorf alleging that Murawski trespassed on his property, that Weitendorf had personally given Murawski oral notice of the trespass, and that Murawski refused to depart. The report also included a photograph of Murawski on the portion of the lake that Weitendorf asserted he owns. To prove his ownership, Weitendorf provided the Officers with a copy of his deed to the land and the legal description of the land. That alone is enough to establish probable cause of trespass. See Burritt v. Ditlefsen , 807 F.3d 239, 250-51 (7th Cir. 2015) (finding that officers generally have "no duty to investigate the extenuating circumstances or search for exculpatory evidence once probable cause has been established via the accusation of a credible witness"); see also Kampinen , 102 Fed. Appx. at 497 ("A report by a single, credible witness will suffice as a basis for this knowledge even if the officer did not witness the encounter first-hand.") (citing Woods v. City of Chicago , 234 F.3d 979, 996 (7th Cir. 2000) ).
Defendant Officers nevertheless conducted a subsequent investigation into the matter. That investigation led the Officers to interview Murawski, who admitted to being on the part of the lake that Weitendorf claimed to own. They also interviewed Brad Southall, the manager of WRC, who asserted that WRC members did not have rights to cross onto Weitendorf's side of the lake. Both Weitendorf and Southall informed the Officers that a chain-link fence had divided the lake into two for over 40 years, delineating which part of the lake belonged to whom. Officer Reid also contacted a tax assessor to confirm that Weitendorf owned the property. The foregoing only bolstered Defendant Officers' finding of probable cause.
Murawski asserts, however, that during the investigation he informed the Officers that the lake was a part of a watercourse because of an artificial drainage culvert. This drainage culvert serves the basis for Murawski's claim that he had riparian rights to access the lake in its entirety. See Alderson , 325 Ill.Dec. 548, 898 N.E.2d at 601. He sent the Officers several case citations *1005regarding riparian rights to support his proposition. See Beacham , 122 Ill.Dec. 14, 526 N.E.2d at 154 ; LWL Land Trust , 2011 IL App (5th) 100100-U. That information, Murawski contends, negates a finding of probable cause. Moreover, Murawski points out that Officer Wollgast, in his deposition, admitted that the lake was part of a watercourse. (SOAF ¶ 31; see Wollgast Dep. 81:7-23, Ex. C to Pl.'s Resp. to Defs.' Mot. for Summ. J., Dkt. No. 42-3.)
First, Officer Wollgast's subsequent testimony is immaterial. The crucial point of inquiry for a probable cause determination is what the Officers knew at the time of the arrest. See Neita v. City of Chicago , 830 F.3d 494, 497 (7th Cir. 2016). Defendant Officers testified that, at the time of the arrest, they believed they had probable cause. (See Reid Dep. 158:7-11, 185:10-20, Ex. 2 to Defs.' Mot. for Summ. J., Dkt. No. 31-2; Wollgast Dep. 44:13-21; 46:18-47:5.) While their after-the-fact testimony is also irrelevant, the record shows that an objectively reasonable officer who possessed the information Defendant Officers possessed would have determined there was probable cause to make the arrest. Common v. City of Chicago , 661 F.3d 940, 943 (7th Cir. 2011) (emphasizing that "a jury must stand in the shoes of an officer and judge the reasonableness of his actions based on the information he possessed" at the time of the arrest). Prior to the arrest, the Officers had obtained Weitendorf's incident report, conducted their own separate investigation corroborating the report, reviewed the relevant case law, and informed the State's Attorney's Office before a warrant was issued for Murawski's arrest. That suffices.
Murawski attempts to argue that Defendants expertise in trespass as it relates to bodies of water negates a finding of probable cause. That cannot be so. In fact, it would seem the opposite is true. Officer Reid took it upon himself to look at maps to better understand the relevant waterways. (SOAF ¶ 25.) He has also been involved in at least 175 cases concerning trespass, over twenty of which involved trespassing on a body of water. (SOAF ¶ 26.) There is no clear evidence that the lake is a watercourse, but "probable cause does not require officers to rule out a suspect's innocent explanation for suspicious facts." D.C. v. Wesby , --- U.S. ----, 138 S.Ct. 577, 588, 199 L.Ed.2d 453 (2018). It nevertheless appears to the Court that, at the time of the arrest, Defendant Officers did not believe that the lake was a watercourse. That finding is reasonable and, given their experience and expertise on the subject, appears to have been an informed and thoughtful decision.
To state it more generally, an objectively reasonable officer, with or without Defendant Officers' expertise in such matters, would have determined there was probable cause that Murawski committed trespassing. Once an officer "has established cause on every element of a crime, he need not continue investigating in order to test the suspect's claim of innocence." Kelley v. Myler , 149 F.3d 641, 646 (7th Cir. 1998). Whether the lake is in fact a watercourse is irrelevant. The record shows that Defendants found reason to support each element of trespassing, and they need not have investigated further to ensure definitively the lake did or did not constitute a watercourse. Defendants had probable cause to arrest Murawski.
As a final note, Murawski mentions that he never stepped foot on Weitendorf's "land," which was asserted in the criminal complaint. This mistake of fact, however, is harmless. Murawski was charged under Criminal Trespass to Real Property, 720 ILCS 5/21-3, which provides that criminal trespass is committed when a person "remains upon the land of another, after receiving *1006notice from the owner or occupant to depart." 720 ILCS 5/21-3(a). The record shows that Defendant Officers investigated and pursued charges for Murawski's alleged trespass on Weitendorf's side of the lake. It is objectively reasonable for an officer to pursue criminal charges for trespass on a body of water through a general criminal trespass statute. Moreover, as Defendant Officers pointed out, Illinois case law and statutory law have recognized that a property owner may hold title to "submerged land" or to an artificial lake. See, e.g., Bouris v. Largent , 94 Ill.App.2d 251, 236 N.E.2d 15, 18 (1968) (recognizing that the riparian "right of access does not depend upon ownership of or title to the submerged land"); see also 520 ILCS 5/2.33(t) ("It is unlawful for any person to take or attempt to take any species of wildlife or parts thereof ...within or upon the land of another, or upon waters flowing over or standing on the land of another"). As such, unless an individual has riparian rights, that individual may commit trespass on a body of water. Murawski's argument fails. Accordingly, Defendant Officers had probable cause for the arrest.
B. State Law Claims
Defendants argue that Murawski's state law claims fail as a matter of law on two grounds: (1) Defendants had probable cause to prosecute Murawski for trespass; and (2) Defendants are entitled to sovereign and public official immunity. The Court need not consider the latter argument since Murawski's claims fail for substantially the same reasons recited above-the existence of probable cause.
1. Illinois False Arrest Claim
The lack of probable cause is also an element of an Illinois false arrest claim. Stokes v. Bd. of Educ. of the City of Chicago , 599 F.3d 617, 626 (7th Cir. 2010) (citing Ross v. Mauro Chevrolet , 369 Ill.App.3d 794, 308 Ill.Dec. 248, 861 N.E.2d 313, 317 (2006) ); see also Johnson v. Target Stores, Inc. , 341 Ill.App.3d 56, 274 Ill.Dec. 795, 791 N.E.2d 1206, 1220 (2003) ("To sustain an action for false arrest, plaintiff must prove restraint or arrest caused or procured by the defendant, without his having reasonable grounds to believe that an offense was committed by the plaintiff.") The standard for evaluating probable cause is the same under Illinois and federal law. See Gauger v. Hendle , 352 Ill.Dec. 447, 954 N.E.2d 307, 329 (2011) ; Holm v. Clark , No. 11 C 1798, 2012 WL 1015956, at *6 (N.D. Ill. Mar. 23, 2012) (collecting cases).
For the reasons stated above, no reasonable juror could conclude that Defendants falsely arrested Murawski under Illinois law. See Johnse v. Vill. of Rosemont , No. 10 C 07097, 2013 WL 3668819, at *4 (N.D. Ill. July 12, 2013) (holding that where the arresting officers had probable cause under federal law to arrest the plaintiff, the plaintiff's "state law claim for false arrest fails for the same reasons"). Murawski's Illinois false arrest claim fails as a matter of law.
2. Malicious Prosecution Claim
To establish a claim for malicious prosecution under Illinois law, Murawski must establish five elements: (1) commencement or continuation of an original proceeding by Defendants; (2) termination of the proceeding in favor of Murawski; (3) the absence of probable cause; (4) malice; and (5) damages. See Colbert v. City of Chicago , 851 F.3d 649, 654-55 (7th Cir. 2017). Probable cause is a complete defense to such a claim. Id. Different from a false arrest claim, "the pertinent time for making the probable cause determination is the time when the charging document is filed, rather than the time of the arrest." Holland v. City of Chicago , 643 F.3d 248, 254 (7th Cir. 2011) (citing *1007Porter v. City of Chicago , 393 Ill.App.3d 855, 332 Ill.Dec. 376, 912 N.E.2d 1262, 1274 (2009) ). For malicious prosecution under Illinois law, probable cause "is defined as a state of facts that would lead a person of ordinary care and prudence to believe or to entertain an honest and sound suspicion that the accused committed the offense charged. It is the state of mind of the person commencing the prosecution that is at issue - not the actual facts of the case or the guilt or the innocence of the accused." Gauger , 352 Ill.Dec. 447, 954 N.E.2d at 329-30 (internal quotation marks, citation, and emphasis omitted); see also Cairel v. Alderden , 821 F.3d 823, 834 (7th Cir. 2016) (same).
The record indisputably shows that at the time the charges against Murawski were filed, the Defendant Officers had the information Weitendorf provided to them and the evidence they gathered in their subsequent investigation. As with the false arrest claims, no reasonable juror could conclude from the record that the totality of the circumstances was insufficient to lead Defendants to entertain an honest and sound suspicion that Murawski unlawfully trespassed on Weitendorf's property. See Seiser v. City of Chicago , 762 F.3d 647, 660 n.6 (7th Cir. 2014) (emphasizing that "the Illinois Appellate court has twice rejected the notion that the probable cause standard for the decision to charge is meaningfully different from the probable cause standard for the decision to arrest") (citing cases).
Murawski's malicious prosecution claim fails for a second and independent reason. He cannot show that the criminal proceedings terminated in his favor. A malicious prosecution action "cannot be predicated on underlying criminal proceedings which were terminated in a manner not indicative of the innocence of the accused." Swick v. Liautaud , 169 Ill.2d 504, 215 Ill.Dec. 98, 662 N.E.2d 1238, 1242 (1996) (citation omitted). Here, Assistant State's Attorney Hilderbrand subpoenaed Defendant Officers and Weitendorf to testify at trial, but due to their unavailability and the presiding court's unwillingness to postpone trial, Hilderbrand dismissed the case nolle prosequi . Hilderbrand could have refiled the charges but ultimately chose not to-the reasons for which are disputed but irrelevant here. It is apparent that there was no favorable termination of Murawski's case. See Williams v. S. Ill. Riverboat/Casino Cruises, Inc. , No. 06-cv-664, 2008 WL 1766522 (S.D. Ill. Apr. 14, 2008) (finding no favorable termination where prosecutor "made the decision to dismiss the case not because he believed [the plaintiff] was innocent or because he could not succeed in prosecuting [the plaintiff] but instead purely to ensure the State's Attorney was able to try more important cases."). Accordingly, Defendant Officers are entitled to judgment as a matter of law on Murawski's malicious prosecution claim.
III. CONCLUSION
For the reasons stated herein, Defendants' Motion for Summary Judgment (Dkt. No. 34.) is granted.
IT IS SO ORDERED. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1316021/ | 540 S.E.2d 199 (2001)
273 Ga. 307
WATKINS
v.
The STATE.
No. S00A1560.
Supreme Court of Georgia.
January 8, 2001.
*200 William C. Puckett, Jr., Decatur, for appellant.
J. Tom Morgan, District Attorney, Barbara B. Conroy, Kristin L. Wood, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, H. Maddox Kilgore, Assistant Attorney General, for appellee.
BENHAM, Chief Justice.
Appellant John Alton Watkins was found guilty of malice murder, two counts of felony murder, armed robbery, and possession of a firearm during the commission of a crime on October 21, 1993, after a jury trial.[1] The *201 evidence presented at trial established the following: On January 10, 1993, Juan Pierre Mingo was found dead in his taxicab as a result of two gunshot wounds to the head. No money was found in the victim's pockets, though the victim routinely carried $100 in small bills for change and had collected at least $13 in fares that night. At the time appellant was arrested for the crimes, he had $44.27 in his possession, even though he was given only $20 a week for allowance and other money for performing household chores. Police determined that the address and phone number of the last fare the victim picked up was that of appellant. When questioned, appellant denied that he had called a cab that evening and said that he had gone to a movie with his girlfriend, returned home, gone to a grocery store, and spent the rest of the evening at home. Appellant admitted later in that encounter that he had gone to see another girlfriend and had not spent the entire remainder of the evening at home.
Appellant's uncle, with whom appellant and his mother lived, turned over to police a .22 derringer handgun and four live rounds he found among appellant's belongings the day after the shooting. The gun had pearl handles and was identical to a gun that had been stolen from appellant's mother. The bullet fragments recovered from the murder scene were later found to have been fired from the gun.
At trial, appellant testified that on the night of the victim's death, he had gone to a movie with his girlfriend, the two had gone to a grocery store, and then appellant returned home. He then called a cab for himself and a man named "Jay," and took it to an apartment complex where Jay's girlfriend lived. When they got there and were trying to determine how to pay the fare, the victim propositioned them for sex. Rebuffing the victim's advances, Jay shot the victim. Appellant testified that he had found the gun and lent it to Jay at his request prior to the shooting. Appellant also admitted supplying Jay with bullets he had taken from his mother.
After the shooting, the two men decided not to call the police and parted ways. Appellant testified he went straight home, though his testimony conflicted with a statement given to police where he claimed to have gone to the apartment of another female friend and telephoned Jay. According to appellant's trial testimony, Jay brought the gun to his house the following day and asked him to dispose of it. Appellant did not know Jay's last name, phone number or address. Appellant's uncle testified that he had never heard of someone named Jay.
1. The evidence, though circumstantial, was sufficient to authorize a rational trier of fact to find appellant guilty of all the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Mullins v. State, 269 Ga. 157(1), 496 S.E.2d 252 (1998). "A conviction based on circumstantial evidence is authorized when every reasonable inference and hypothesis except that of guilt is excluded by the evidence." Mullins, supra. It is the jury's role to resolve conflicts in the evidence and determine the credibility of witnesses. Metts v. State, 270 Ga. 481(2), 511 S.E.2d 508 (1999). Viewing the evidence in the light most favorable to the jury's verdict, we conclude that a jury could have reasonably found that every reasonable hypothesis was excluded except for appellant's guilt.
2. Appellant argues the trial court erred when it admitted hearsay testimony for the purpose of explaining a police officer's conduct. At trial, a police officer who investigated the matter testified that he went to the apartment of the woman appellant said Jay was visiting and asked the inhabitants whether they knew a person named Jay or John. Over appellant's hearsay objection, the officer was allowed to testify that all of the inhabitants stated they did not know anyone named Jay or John. The testimony was admitted to explain the officer's course of conduct.
This Court has stated that only on rare occasions will the need to explain the conduct of an investigating officer justify the admission of hearsay evidence. Weems v. State, 269 Ga. 577(2), 501 S.E.2d 806 (1998); Momon v. State, 249 Ga. 865, 867, 294 S.E.2d 482 (1982). This case does not present one *202 of the rare instances where an officer's conduct is a relevant issue. Compare Greene v. State, 266 Ga. 439(25), 469 S.E.2d 129 (1996); Funderburk v. State, 221 Ga.App. 438, 471 S.E.2d 535 (1996). Thus, the trial court erred in admitting the hearsay testimony. However, we conclude that the error was harmless based on appellant's inability to provide Jay's last name, address, telephone number, or any other information verifying the identity of Jay during questioning by police and at trial and based on the testimony of appellant's uncle that he had never heard of anyone named Jay. See Simmons v. State, 271 Ga. 563(4)(c), 522 S.E.2d 451 (1999).
3. Appellant argues the trial court erred in allowing the jury to read a transcript of his taped statement to police. During jury deliberations, the jury inquired about a specific portion of appellant's statement to police. The trial court asked the jurors if they wanted to listen to the tape, to which the jurors responded by asking to take a copy of the transcript in the jury room. The trial court denied the jury's request and instead allowed the jurors to read the statement in the jury box. Appellant contends that this action was equivalent to "sending his statement out with the jury and overemphasized that testimony."
We disagree that the trial court erred in allowing the jury to read the transcript. The trial court has discretion to grant the jury's request to rehear portions of the evidence in the courtroom after the jury has retired and begun deliberations and has discretion to allow the jury to rehear other portions of the evidence not specifically requested to avoid placing undue influence on the specific evidence requested. Byrd v. State, 237 Ga. 781, 229 S.E.2d 631 (1976); Martin v. State, 240 Ga.App. 901, 525 S.E.2d 728 (1999). Neither is it error for a trial court to allow a jury to read a transcript of testimony where the jury asks to hear the tape recording of the testimony. Barnes v. State, 230 Ga.App. 884, 497 S.E.2d 594 (1998). In order to demonstrate an abuse of the trial court's discretion, appellant must show that there are "special circumstances" that would make it unjust to allow the jury to revisit the evidence. Martin, supra. Appellant has shown no such special circumstances.
4. Appellant argues the trial court erred when it sentenced him to a life sentence on each of two counts of felony murder after appellant had been sentenced to life for malice murder. There is no indication in the record that the trial court vacated the felony murder convictions as required by law.[2]Malcolm v. State, 263 Ga. 369, 372, 434 S.E.2d 479 (1993). Thus, appellant's felony murder convictions are vacated by operation of law. We direct the trial court to amend the record in accordance with our ruling.
Judgment affirmed in part and remanded.
All the Justices concur.
NOTES
[1] Appellant was indicted on August 13, 1993, for malice murder, two counts of felony murder, armed robbery, and possession of a firearm during the commission of a crime. A jury trial was held on October 19 through October 21, 1993 and appellant was found guilty of all charges. On October 21, 1993, appellant was sentenced to a life sentence for the malice murder conviction, a life sentence, to be served consecutively, for the armed robbery conviction, and a five year sentence, to be served consecutively, for the firearm conviction. Appellant filed a motion for new trial on November 18, 1993, which was denied on April 14, 2000. He filed a notice of appeal on May 12, 2000, and the case was docketed in this court on June 6, 2000. It was submitted for a decision on the briefs.
[2] The sentencing report states as follows: "Life in prison as to Counts 1, 2, 3 [malice murder, 2 counts felony murder]. All to run concurrent. Life in prison as to Count 4 [armed robbery]. To run consecutive with Counts 1-3. 5 years to serve in prison as to Count 5 [possession of a firearm during the commission of a crime]. To run consecutively with Counts 1-4. Total 2 Life Sentences + 5 years to serve." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316863/ | 207 Va. 239 (1966)
ROBERT L. MCKINNEY
v.
COMMONWEALTH OF VIRGINIA.
Record No. 6204.
Supreme Court of Virginia.
June 13, 1966.
Allen J. Gordon for the plaintiff in error.
Present, All the Justices.
McKinney contracted to build a home for Bennie Pierce and wife on a lot he was to convey to them free of liens. They agreed to pay a certain amount in cash and deeded to him the house in which they were living. McKinney lost heavily on the contract and was generally in financial difficulty, to alleviate which he encumbered the house built for the Pierces. They had to pay off this loan to avoid foreclosure. Meantime McKinney had sold the house formerly owned by the Pierces. It was not proved that he used the money thus received for any purpose other than to build the house he conveyed to them. On these facts McKinney had breached his contract to convey free of liens. He was not, however, guilty of embezzlement. The statute defining that crime, like all criminal statutes, is to be strictly construed and in terms applies only to entrusted personal property. The Pierce property conveyed to McKinney was realty, and there was no contractual limitation on the use he was to make of it.
Error to a judgment of the Circuit Court of the city of Chesapeake. Hon. Major M. Hillard, judge presiding. The opinion states the case.
William P. Bagwell, Jr., Assistant Attorney General (Robert Y. Button, Attorney General, on brief), for the Commonwealth.
BUCHANAN
BUCHANAN, J., delivered the opinion of the court.
A grand jury in the circuit court returned an indictment against Robert L. McKinney, referred to herein as McKinney or defendant. It charged him with the embezzlement and grand larceny of $19,500, "certain moneys" belonging to Bennie William Pierce, Jr. On his *240 trial a jury found him guilty and fixed his punishment at six months in jail and $1,000 fine. He was sentenced according to the verdict and we granted him a writ of error.
The defendant contends, first, that he was not guilty of embezzlement under the facts of the case. There was little, if any, conflict in the evidence on material points and it was as follows:
On January 7, 1963, the defendant entered into a written contract with Bennie W. Pierce, Jr., and wife for the sale and purchase of properties. By the contract McKinney agreed to sell and the Pierces agreed to buy a described parcel of land upon which McKinney was to build a three-bedroom brick house according to plans and specifications agreed to and initialed by the parties.
The purchase price for the property so to be conveyed to the Pierces was $20,200, to be paid as follows: $10 in cash, $1,990 at the time of settlement, stated in the contract to be on or before April 15, 1963, "or as soon thereafter as title can be examined and papers prepared, allowing a reasonable time to correct any defects reported by the title examiner;" and $18,200 by title to the property of the Pierces on Myrtle Avenue, in the city of Chesapeake, "which property is to be deeded to Seller [McKinney] before construction is started."
By deed dated January 8, 1963, and recorded January 11, 1963, the Pierces conveyed the Myrtle Avenue property to McKinney with general warranty for $10 "cash in hand paid, and other good and valuable considerations."
By deed dated October 18, 1963, and recorded October 21, 1963, McKinney conveyed this Myrtle Avenue property to Dennis J. Boyd, Jr., for $18,900. McKinney testified that the net amount he received on the sale was about $17,000.
McKinney did not at the time of the contract with the Pierces have title to the tract which he was to convey to the Pierces, containing about one and one-half acres on Forbes Road. It was part of a larger tract which he had a contract to buy and he paid $4,092 to get title to it in order to convey it to the Pierces. The house built by him for the Pierces on this lot was not completed by the closing date of April 15, 1963, and the record does not show the date it was conveyed to the Pierces. They moved into it on October 2, 1963, and they testified that the house was then satisfactorily built and they were satisfied with the construction. They did not pay the defendant the $1,990 which they contracted to pay at the time of *241 settlement. Mr. Pierce testified that he used this amount in finishing the house.
On October 3, 1963, McKinney borrowed $20,000 from Residential Industrial Loan Company, for which he gave a note in the sum of $21,846.80 and executed and delivered a deed of trust on the Forbes Road property to secure its payment. With the proceeds he paid off prior liens amounting to about $12,000, and testified that he used the balance in building the house, which cost him, he said, a great deal more than he expected.
The Pierces did not find out about this deed of trust until they were informed about it by letter of March 13, 1964, from the Residential Industrial Loan Company, which threatened foreclosure unless payments then due were made. To avoid foreclosure the Pierces borrowed $20,000 and gave a note for that amount plus interest and cost, and executed a deed of trust on the property conveyed to them by McKinney to secure its payment at the rate of $159 a month. At the time of this transaction McKinney agreed with the Pierces that he would make the payments on this loan. He made the first three payments but made no more after the criminal charge was made against him. He also gave to the Pierces a second deed of trust on properties owned by him in Portsmouth, but the prior lien thereon was foreclosed and the Pierces received nothing from that source.
McKinney testified that he estimated the house he was to build for the Pierces would cost about $17,000, including the land, but that in fact it cost about $36,000 and took six months to build instead of the ninety days he figured; that at the time of building this house for the Pierces he was involved in building about thirty houses in Norfolk and Portsmouth and was in financial trouble; that he did not have the right kind of help, was unable to devote all his time to the Pierce job and "it just got out of hand." He told the Pierces before the house was completed that he was losing money and wanted to rescind the contract, but they declined to release him.
The Commonwealth's theory at the trial was that when McKinney received the money from the sale of the property conveyed to him by the Pierces, "that money was entrusted to him for the purpose of applying it to the new home and when he employed and used it or did anything else with it then he in fact embezzled and stole it." In its brief here the Commonwealth makes the additional argument that the defendant held the Forbes Road property in trust and *242 was without authority to encumber it, which also put him in violation of the embezzlement statute.
Section 18.1-109, defining embezzlement, provides in applicable part that if any person "wrongfully and fraudulently use, dispose of, conceal or embezzle any money, * * * or any other personal property, * * * which he shall have received for another * * * or by virtue of his office, trust, or employment, or which shall have been entrusted or delivered to him by another * * * he shall be deemed guilty of larceny thereof, and may be indicted as for simple larceny. But proof of embezzlement under this section shall be sufficient to sustain the charge. * * *"
This statute by its express terms applies only to the wrongful and fraudulent use of money or any other personal property. What was entrusted to defendant was real property, not personal property. This real property was conveyed to him by the Pierces by deed in compliance with their written contract that it should be "deeded" to him "befoe construction is started." There were no restraints or limitations in the contract on the use to be made of this real property by the defendant. Mrs. Pierce was asked what the defendant was to do with the Myrtle Avenue property conveyed by them to him by the deed, and she replied, "He was going to sell it." Asked what he was to do with the money that he received, she replied, "That was to be applied on our home on Forbes Road that he was to build for us." A real estate broker who was present when the contract was made was also asked what McKinney was to do with the purchase money when he sold the house, and she replied, "To build Mr. and Mrs. Pierce another home." That was no doubt their expectation, as well as the defendant's, but that was not in the contract and there is no evidence that the defendant made any promise to that effect.
Mr. Pierce was asked if it wasn't true that when the property was conveyed to McKinney no limitation was placed on him as to what he could do with it, and that he could sell it or do anything he wanted with it. He replied, "That's right. He said he was going to build us one in place of this one. I said all right and I signed the deed over to him like a nut."
There is, in fact, no evidence that McKinney used the money from the sale of the Pierce property for a purpose other than to build the Forbes Road house that he conveyed to them. He testified: "I am not guilty of no crime like this. I spent every nickel out of it out there in that house." *243
"* * * It is a rule of general application that [penal] statutes are not to be extended by construction, but must be limited to cases clearly within the language used. * * *"
* * *
"So, in the case of United States Wiltberger, 5 Wheat. 76, 95, 5 L. Ed. 37, Marshall, C.J., lays down the principle as follows: 'The rule that penal laws are to be construed strictly is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle, that the power of punishment is vested in the legislative, not in the judicial, department. It is the legislature, not the court, which is to define a crime, and ordain its punishment * * *.'" Jennings Commonwealth, 109 Va. 821, 822-3, 63 S.E. 1080.
"* * * A penal statute cannot be extended by implication, or be made to embrace cases which are not within its letter and spirit. Such statutes are always construed strictly against the State and in favor of the liberty of the citizen. * * *" Anderson Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841; Waller Commonwealth, 192 Va. 83, 88, 63 S.E.2d 713, 716; Wade Commonwealth, 202 Va. 117, 122, 116 S.E.2d 99, 103.
The contract of January 7, 1963, provided that McKinney would convey the Forbes Road property to the Pierces by a general warranty deed "with the usual covenants of title;" and that "It is understood that the title is to be free and clear of all liens and indebtedness of every kind except the liens above mentioned." (None was mentioned in the contract.)
When McKinney conveyed the property to the Pierces it was encumbered by the deed of trust placed thereon by him to secure payment of the $20,000 loan. When he conveyed the property to the Pierces without clearing that lien from the title, he breached his contract with the Pierces that the title would be "free and clear of all liens." That was a culpable but not a criminal act. He broke his promise, but he did not break the law against embezzlement or larceny. However reprehensible his act, he did not thereby steal any money or other personal property belonging to the Pierces. The evidence in the case was not sufficient to support his conviction of a crime. This conclusion makes it unnecessary to discuss the remaining assignments of error.
The judgment of conviction is reversed and the indictment is dismissed.
Reversed and dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316864/ | 676 P.2d 1224 (1983)
Mr. and Mrs. Loren L. SEAGO, Mr. and Mrs. James L. Freeman, Emmit Yates, and Keith Yates, Plaintiffs-Appellants and Cross-Appellees,
v.
Louis A. FELLET, a/k/a Louie Fellet, Defendant-Appellee, Third-Party Plaintiff, and Cross-Appellant,
v.
CITY OF LAKEWOOD, a Colorado municipal corporation, Third-Party Defendant.
No. 80CA0431.
Colorado Court of Appeals, Division II.
October 27, 1983.
Rehearing Denied November 23, 1983.
*1225 Louis A. Weltzer, Denver, for plaintiffs-appellants and cross-appellees.
Banta, Hoyt, Banta, Greene, Hannen & Everall, Richard D. Greene, Englewood, for defendant-appellee, third-party plaintiff and cross-appellant.
Gorsuch, Kirgis, Campbell, Walker, & Grover, Wiley Y. Daniel, Mary E. Walta, Denver, for third-party defendant.
KELLY, Judge.
Plaintiffs Seagos and Freemans appeal the amount of damages awarded them after a trial to the court in a breach of contract action against defendant Fellet, arguing that the proper measure of damages was the diminution in value to their property rather than the cost of Fellet's performance. Plaintiffs Emmit and Keith Yates appeal the trial court's dismissal of their claim for failure to join their joint tenants in the action. Fellet cross-appeals the judgment in favor of Seagos and Freemans, contending that his performance was excused under the doctrine of impossibility and that the action should have been dismissed for failure to join all the other owners in the subdivision as indispensable parties. Although the City of Lakewood has filed a brief in this court, there are no issues raised on appeal concerning it. We affirm in part and reverse in part.
The plaintiffs are or were lot owners in a subdivision which at that time was part of unincorporated Jefferson County and is now in the City of Lakewood. They entered into a contract with Fellet, the subdivision owner, whereby Fellet agreed to pave certain roads in the subdivision upon completion of building on the fourth lot sold. The paving of the roads was to be an improvement located on property not owned by the promisees. Such facilities are commonly known as "off-site" facilities.
When building on the fourth lot was completed, Fellet sought a building permit to pave the roads. He was informed by the City of Lakewood that since part of the subdivision was on a 100-year flood plain, certain drainage requirements would have to be met. Fellet negotiated with the City and obtained several concessions as to width and curbing requirements, but because of the added expense associated with compliance with the drainage requirement, he decided not to pave the roads.
The trial court found that Fellet breached the contract and that Lakewood was not liable for tortious interference. The court awarded damages based on the cost of paving the roads divided by the proportion of the roads on which each plaintiff's property abutted.
I.
The Seagos and the Freemans argue that the trial court erred in measuring their *1226 damages by the cost of performance by the injured party, rather than the diminution in the value of their property occasioned by Fellet's failure to make the "off-site" improvements. We agree.
The paramount objective in measuring contract damages is to place the non-breaching party in the position he would have enjoyed were it not for the breach. Taylor v. Colorado State Bank, 165 Colo. 576, 440 P.2d 772 (1968). Here, plaintiffs bargained for paved roads and expected that the value of their property would thereby be enhanced.
The case of Kniffin v. Colorado Western Development Co., 622 P.2d 586 (Colo.App.1980) also concerned promised off-site improvements in a subdivision. This court awarded damages based on the theory that:
"the proper measure of damages to a person injured by breach of contract for failure to construct off-site improvements is the diminution in value of the property purchased."
While in Kniffin the cost of performance was disproportionately greater than the diminution in value of the properties, application of the diminution-in-value measure of damages is no less applicable here. We reaffirm the principle that, unless the breaching party will thereby be unduly punished, the proper measure of damages for failure to construct off-site improvements is the diminution in value of the property. See Coughlin v. Blair, 41 Cal. 2d 587, 262 P.2d 305 (1953); Barcroft Woods, Inc. v. Francis, 201 Va. 405, 111 S.E.2d 512 (1959).
II.
The trial court dismissed the claims of plaintiffs Emmit and Keith Yates because they failed to join their wives, each a joint tenant with her husband, in the action.
The issue is whether joint tenants are indispensable parties under C.R.C.P. 19(a) which states:
"A person who is properly subject to service of process in the action shall be joined as a party in the action if: (1) In his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may: (A) As a practical matter impair or impede his ability to protect that interest or (B) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest."
The determination of whether a person not present in an action is indispensable is made under the standard posited in Woodco v. Lindahl, 152 Colo. 49, 380 P.2d 234 (1963):
"The test ... may be stated thus: Is the absent person's interest in the subject matter of the litigation such that no decree can be entered in the case which will do justice between the parties actually before the court without injuriously affecting the right of such absent person?
. . . .
`[I]ndispensable parties' are those having such an interest in [the] subject-matter of [the] controversy that final decree between parties before the court cannot be made without affecting their interests or leaving [the] controversy in such situation that its final determination may be inequitable."
In Weng v. Schleiger, 130 Colo. 90, 273 P.2d 356 (1954), the Colorado Supreme Court dismissed a wife's action for damage to an automobile jointly owned by the husband and wife. The court held that under C.R.C.P. 19(a) the husband was an indispensable party without whose presence the court could not properly exercise jurisdiction. That rule is equally applicable here.
While it would be possible for the court to apportion the damages in such a way as *1227 to give each plaintiff only his share of the aggregate award, the possibility of multiple lawsuits with potentially contradictory results compels the dismissal of the actions of these plaintiffs for failure to join indispensable parties.
III.
Fellet cross-appeals, arguing that his performance on the contract was rendered impossible by the drainage requirements imposed by the City of Lakewood, and that the plaintiffs' action should have been dismissed for failure to join the other owners in the subdivision as indispensable parties. Fellet's performance was not excused under the doctrine of impossibility.
This is not a situation in which intervening government regulatory action prohibits performance, or where performance requires the issuance of a license which is unobtainable, but is, rather, one in which the intervening action merely renders performance more costly. Since increased costs are not grounds for rescission of a contract, Beals v. Tri-B Associates, 644 P.2d 78 (Colo.App.1982), Fellet could not avoid his obligation to perform by citing the city's drainage requirements. See Littleton v. Employers Fire Insurance Co., 169 Colo. 104, 453 P.2d 810 (1969); Levine v. Rendler, 272 Md. 1, 320 A.2d 258 (Md.App.1974); 407 East 61st Garage, Inc. v. Savoy Fifth Avenue Corp., 23 N.Y.2d 275, 296 N.Y.S.2d 338, 244 N.E.2d 37 (Court of Appeals 1968).
Fellet's argument that the plaintiffs' action should have been dismissed for failure to join the other owners in the subdivision as indispensable parties is also without merit. Since determining the diminution in value of these plaintiffs' properties does not affect the rights of the other lot owners, a final, equitable determination is possible in this case without the joinder of the other owners. See Woodco v. Lindahl, supra.
The judgments as to Emmit and Keith Yates and as to the City of Lakewood are affirmed. The judgment as to the remaining plaintiffs is affirmed as to liability of defendant and reversed as to the amount of damages, and the cause is remanded for a new trial on the issue of damages only as to the Seagos' and Freemans' claims.
SMITH and VAN CISE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316020/ | 540 S.E.2d 701 (2000)
246 Ga. App. 572
REDFERN
v.
The STATE.
No. A00A1481.
Court of Appeals of Georgia.
October 31, 2000.
Culpepper & Horne, Robert Culpepper III, Cairo, Melvin R. Horne, for appellant.
J. David Miller, District Attorney, Robert R. Auman, Assistant District Attorney, for appellee.
ANDREWS, Presiding Judge.
William Earl Redfern was found guilty by a jury of burglary based on the charge that he entered a building without authority with the intent to commit a felony therein. On *702 appeal he claims the evidence was insufficient to support the guilty verdict. Because we find the State failed to prove that the structure he entered was a building within the meaning of the burglary statute, we agree and reverse the judgment of conviction.
The indictment charged that on March 13, 1998, Redfern committed the offense of burglary by "enter[ing] a building, to-wit: W.C.T.V. Tower" with the intent to commit therein the felony of criminal damage to property in the second degree. The State presented evidence that on the night of March 13, 1998, at about 10:30 p.m. an engineer employed by WCTV, who lived near the WCTV television broadcast tower, noticed that there was a problem with the lights atop the 2,000-foot-high tower. The engineer drove to the tower located inside a fenced-in tower compound area, which itself was located inside a fenced-in 180-acre site surrounding the tower. The tower compound area was comprised of a building which serviced the tower and the tower structure itself which was located adjacent to the service building.
The engineer testified that he discovered someone had broken a door to gain entry into the service building and stolen a key from the building that unlocked a control box on the tower which secured the controls operating the tower elevator. He further testified that he found the elevator control box had been unlocked, the missing key was in the lock lying on top of the box, and the elevator was being used by someone to go up the tower. Parachuting equipment he found near the building led the engineer to suspect that someone was attempting to parachute from the top of the tower. In fact, the engineer testified that they had caught people on previous occasions parachuting from the tower. Police arrived within a few minutes, and the engineer and a police officer brought the elevator back down and took it to the top of the tower to investigate. No one was found at the top of the tower, but they observed what appeared to be flashlights being carried by people on the ground moving away from the area of the tower. Officers investigating the lights discovered a car parked near the tower property covered by a parachute. A check of the car's tag revealed that it was a rental car rented by Redfern. A bag was found near the car containing a parachute and an owner identification card bearing Redfern's name.
The State presented additional evidence that over $500 of damage was done to the tower on the night of March 13. Part of the damage was to lights high on the tower, and the State presented evidence that a tower light alarm device showed that the light damage occurred at or near the time the break-in was discovered at the service building on the night of March 13.
Although Redfern initially told police he was not at the tower, he testified at trial and admitted he was there on the night of March 13 with two other people. He admitted they trespassed on the tower property, took the elevator to the top of the tower and parachuted from the top, then left their car and hid when the police arrived. Redfern denied, however, that he or anyone with him broke into the service building, stole a key, or damaged the tower. According to Redfern, he was associated with a group of persons who had parachuted on numerous occasions off the WCTV tower and other high buildings, antennae towers, bridge spans, and natural precipices as part of an activity called BASE (building, antennae, span, and earth) jumping. He testified that on a previous visit to the tower for BASE jumping, he had obtained a number off the bottom of the Master Lock on the elevator control box and used the number to obtain a duplicate key to the lock from a locksmith. Redfern said he used his duplicate key to gain access to the elevator control box on the night of March 13.
The State alleged in the indictment that Redfern committed the offense of burglary when, without authority, he entered "a building, to-wit: W.C.T.V. Tower" with the intent to commit therein the felony offense of criminal damage to property in the second degree. The offense of burglary is defined as follows:
A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such *703 structure designed for use as the dwelling of another or enters or remains within any other building, railroad car, aircraft, or any room or any part thereof.
OCGA § 16-7-1(a). Accordingly, in order to prove the offense of burglary as charged in the indictment, the State was required to prove that the WCTV tower unlawfully entered by Redfern was a building within the meaning of the burglary statute and that Redfern intended to or committed the felony offense of criminal damage to property in the second degree in that building.
As to the element of unlawful entry, there was direct evidence that Redfern entered the WCTV tower, and the State produced additional circumstantial evidence that Redfern entered the service building adjacent to the tower to steal the key to the elevator control panel. The only evidence which the State produced proving the element of commission of the felony offense of criminal damage to property in the second degree was circumstantial evidence that, after entering the WCTV tower, Redfern caused over $500 of damage to the tower.
Although the State does not clearly set forth its theory, it appears that to prove the charge that Redfern unlawfully entered the alleged building with the intent to commit the charged felony therein, the State intended to show either: (1) that the WCTV tower, standing alone, was a building for purposes of the burglary statute, or (2) that, even if the tower standing alone would not be considered a building, it was a building under the burglary statute because it was part of the adjacent service building.
We find no evidence to support a claim that the 2,000-foot-high broadcast tower should be considered a building because it was part of the adjacent service building. Although photographs show there was a walkway between the service building and the tower, they were clearly two separate structures. The base of the tower was a short distance from the service building, and the tower was independently supported by guy wires running from the tower to the ground. Moreover, testimony from the WCTV engineer indicated that he had to exit the service building to walk to the elevator control panel located on the tower. Compare Floyd v. State, 207 Ga.App. 275, 280, 427 S.E.2d 605 (1993) (where we concluded that a garden center contiguous to a store was part of the store's main building).
Accordingly, the issue which controls this case is whether the broadcast tower was a building within the meaning of the burglary statute. "Georgia's [burglary] statute is very broad and does not limit its application to buildings of any particular type or in any particular condition." Smith v. State, 226 Ga.App. 9, 11, 485 S.E.2d 572 (1997) (unfinished house was a building under the burglary statute). The statute has been interpreted as applying to buildings of "whatever kind." Id.; Franks v. State, 240 Ga.App. 685, 687, 524 S.E.2d 545 (1999) (enclosed metal trailer used to store goods was a building under the burglary statute). For example, in Floyd, 207 Ga.App. at 280, 427 S.E.2d 605, we noted that the Supreme Court in Williams v. State, 105 Ga. 814, 815, 32 S.E. 129 (1898) held that a chicken coop enclosed only by wire and covered by shingles was within the meaning of a criminal statute prohibiting theft not only from "any dwelling-house, store, shop, [or] warehouse" but also from "any other building." Williams defined the term building as "an edifice for any use; that which is built, as a dwelling-house, barn, etc." (Citation omitted.) Id. at 815, 32 S.E. 129. Similarly, in construing the burglary statute in Smith, 226 Ga.App. 9, 485 S.E.2d 572, we referred to another broad definition of a building as
a structure in the nature of a house built where it is to stand; as commonly understood, a house for business, residence, or public use, or for shelter of animals or storage of goods, and very generally, but not always, the idea of a habitation for the permanent use of man, or an erection connected with his permanent use.
(Citation and punctuation omitted.) Id. at 10-11, 485 S.E.2d 572.
Nevertheless, the broad meaning given to the term building under the burglary statute does not encompass every type of structure. One element common to the various structures found to be buildings under the statute is that they provided an enclosure of some type for people, animals, or goods. We find this element to be lacking in the *704 WCTV broadcast tower at issue. The purpose of the 2,000-foot-high tower was not to enclose anything but to provide a tall structure from which the television broadcast signal could emanate. The tower was a slender structure constructed of steel beams and held upright by guy wires running from the tower to the ground. It was open to the elements from all sides from top to bottom. To the extent a means was provided by stairs or elevator to ascend the tower, the only apparent purpose for this was tower maintenance. We conclude this is not the type of structure the legislature intended to protect as a building under the burglary statute. Accordingly, the illegal entry upon and alleged damage to the tower caused by Redfern were covered not by the burglary statute but by the criminal statutes related to criminal trespass and damage to property set forth in OCGA Title 16, Chapter 7, Article 2.[1]
Judgment reversed.
RUFFIN and ELLINGTON, JJ., concur.
NOTES
[1] We note that Redfern was charged in a separate count of the indictment under OCGA § 16-7-23 with the felony offense of criminal damage to property in the second degree and was found not guilty. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316013/ | 388 S.C. 31 (2010)
694 S.E.2d 43
Michael B. MOSELEY and Marsha H. Moseley, Respondents,
v.
ALL THINGS POSSIBLE, INC. and James H. Hampton, Appellants.
No. 4677.
Court of Appeals of South Carolina.
Heard November 4, 2009.
Decided April 22, 2010.
Rehearing Denied June 24, 2010.
*33 Robert J. Thomas, of Columbia, for Appellants.
Barry L. Thompson and S. Jahue Moore, both of West Columbia, for Respondents.
LOCKEMY, J.
All Things Possible, Inc. and James H. Hampton appeal the circuit court's finding that they committed fraud in the inducement through the sale of a parcel of real estate. We affirm in part and reverse in part.
FACTS/PROCEDURAL BACKGROUND
In August 2002, Michael and Marsha Moseley (the Moseleys) purchased Lot 45 in the Secret Cove subdivision in Lexington County. Lot 45 was an undeveloped lot owned by All Things Possible, Inc. of which James Hampton is the president. Lot 45 was encumbered by an underground, surface-water drainage easement running diagonally across the entire length of the property. Hampton was aware of the *34 drainage easement and intended to build a house on the corner of Lot 45 away from the easement. The easement is not recorded in a deed; however, it is recorded in a drawing on the recorded plat of the subdivision (subdivision drawing). According to the developer of Secret Cove, Lot 45 is unbuildable due to the location of the easement.
All Things Possible listed Lot 45 for sale through its real estate agent, Loretta Whitehead. The Moseleys contacted Whitehead, and she arranged for them to purchase Lot 45. During the course of their dealings, Whitehead received a faxed copy of the plat of Lot 45 that indicated Lot 45 was unencumbered (falsified plat). She was unsure who sent the fax to her office. Whitehead, who was unaware of the easement, provided the Moseleys with the faxed copy of the falsified plat. Further, she advised the Moseleys they would be able to build a home on the lot. James Jones, the Moseleys's attorney, contracted with Professional Title Services to prepare a title abstract. The Moseleys contend the title report did not contain the subdivision drawing. The Moseleys purchased Lot 45 for $37,500, unaware that the property was encumbered by the easement. In January 2005, the Moseleys learned of the easement through a real estate agent of a potential buyer.
In July 2005, the Moseleys filed suit against All Things Possible and Hampton alleging causes of action for breach of contract, fraud, and breach of contract accompanied by a fraudulent act. This action was tried without a jury on April 24, 2007, and the Moseleys proceeded solely on the fraud cause of action. The circuit court found Hampton provided a falsified plat to the Moseleys through his real estate agent and induced them to buy Lot 45. The circuit court determined Hampton had full knowledge of the falsity of his representation and intended for the Moseleys to act upon his misrepresentation. Furthermore, the circuit court concluded Hampton's misrepresentation was material, as the Moseleys would not have purchased Lot 45 had they known of the drainage easement. The circuit court found the Moseleys were unaware at the time of purchase that there was an easement and did everything reasonable to inspect and obtain information concerning the property. Additionally, the circuit court found the Moseleys had a right to rely on and were proximately *35 injured by Hampton's misrepresentation. Thus, the circuit court found Hampton committed fraud in the inducement.
The circuit court also found Hampton was the agent of All Things Possible and exercised complete control over the actions of the corporation. The circuit court determined Hampton's fraudulent concealment of the drainage easement and his sale of Lot 45 to the Moseleys was an action within the scope of his employment as president of All Things Possible. Consequently, the circuit court found All Things Possible vicariously liable for Hampton's fraud and determined that All Things Possible also engaged in fraud by concealment and fraud by misrepresentation. The circuit court awarded the Moseleys $44,275 in actual damages and $44,275 in punitive damages. All Things Possible and Hampton appealed.
STANDARD OF REVIEW
An action for fraud is an action at law. Hendricks v. Hicks, 374 S.C. 616, 619, 649 S.E.2d 151, 152 (Ct.App.2007). "In an action at law tried without a jury, an appellate court's scope of review extends merely to the correction of errors of law." Temple v. Tec-Fab, Inc., 381 S.C. 597, 599-600, 675 S.E.2d 414, 415 (2009). An appellate court will not disturb a circuit court's findings unless they are found to be without evidence that reasonably supports those findings. Id. at 600, 675 S.E.2d at 415.
LAW/ANALYSIS
I. All Things Possible
All Things Possible and Hampton argue the circuit court erred in finding All Things Possible committed fraud by clear and convincing evidence. We disagree.
"Fraud is an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to her or to surrender a legal right." Regions Bank v. Schmauch, 354 S.C. 648, 672, 582 S.E.2d 432, 444 (Ct.App.2003) (citing Black's Law Dictionary 660 (6th ed.1990)). To prevail on a cause of action for fraud, a Plaintiff must prove by clear, cogent and convincing evidence the following elements:
*36 (1) a representation; (2) its falsity; (3) its materiality; (4) either knowledge of its falsity or a reckless disregard of its truth or falsity; (5) intent that the representation be acted upon; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance on its truth; (8) the hearer's right to rely thereon; and (9) the hearer's consequent and proximate injury.
Id. at 672, 582 S.E.2d at 444-45. To establish a claim or defense of fraud in the inducement, a plaintiff must prove the nine elements of fraud as well as the following three elements: "(1) that the alleged fraudfeasor made a false representation relating to a present or preexisting fact; (2) that the alleged fraudfeasor intended to deceive him; and (3) that he had a right to rely on the representation made to him." Darby v. Waterboggan of Myrtle Beach, Inc., 288 S.C. 579, 584, 344 S.E.2d 153, 155 (Ct.App.1986).
The circuit court found the Moseleys had a right to rely on Hampton's misrepresentations because he was the seller of real property, and his representations concerned the absence of a latent defect in the property. The circuit court determined that sellers have a duty to disclose latent defects to buyers and thus the Moseleys rightly relied to their detriment on Hampton's misrepresentation concerning the property. The circuit court noted that easements do "not generally come within the definition of a `latent' defect because such should be discovered upon a `reasonable' examination of the property by way of title search or survey." However, the circuit court found this case was distinguishable because the Moseleys were deterred by Hampton's behavior from requesting or demanding a survey prior to closing.
The circuit court noted that All Things Possible and Hampton rely on LoPresti v. Burry, 364 S.C. 271, 612 S.E.2d 730 (Ct.App.2005), to support their argument that the Moseleys had constructive notice of the easement. However, the circuit court also noted that LoPresti held constructive notice is "inapplicable especially `where the very representations relied on induced the hearer to refrain [from] an examination of the records, where the employment of an expert would have been required to deduce the truth from an examination of the records, where confidential relations existed, or where the defrauded party was inexperienced.'" 364 S.C. at 277 n. 12, *37 612 S.E.2d at 733 n. 12 (quoting Reid v. Harbison Dev. Corp., 285 S.C. 557, 561, 330 S.E.2d 532, 534-35 (Ct.App.1985)). The circuit court determined the Moseleys were induced to buy Lot 45 without conducting an independent survey of the property because "Hampton told them that they did not need to get another survey or plat as their lot was the last to be bought in the neighborhood," and "convinced them by drawing a home on the plat and offering to build it for them." The circuit court found All Things Possible vicariously liable for Hampton's fraud.
Relying on LoPresti, All Things Possible and Hampton argue the Moseleys had constructive notice of the easement. In LoPresti, this court held homeowners had constructive notice of a flood easement, notwithstanding the removal of a dotted line on a recorded plat showing the flood plain level, because the easement was properly recorded in the chain of title. 364 S.C. at 275, 612 S.E.2d at 732. Here, All Things Possible and Hampton contend the easement across Lot 45 was created by a plat which was approved by the Lexington County Planning Commission and recorded in the public record. The Moseleys argue they were not defrauded by documents recorded in the chain of title but were directly defrauded by All Things Possible and Hampton when they were given an altered plat by Whitehead. The Moseleys contend they justifiably relied on the plat when deciding to buy Lot 45. They argue they were unaware of the easement and did everything reasonable to safeguard their interests.
In Slack v. James, 364 S.C. 609, 615, 614 S.E.2d 636, 639 (2005), our supreme court determined a question of fact existed as to whether a buyer's reliance on a seller's misrepresentation was reasonable although the falsity of the misrepresentation could have been discovered through an examination of the public record. Here, although the misrepresentation made to the Moseleys could have been discovered through an examination of the public records, we find evidence in the record supports the circuit court's determination that the Moseleys did everything reasonable to inspect and obtain information concerning the property. The Moseleys hired an attorney, conducted a title search, and obtained a plat from Whitehead. The Moseleys were also induced to purchase Lot 45 without obtaining an independent survey of the property *38 after Whitehead, acting as an agent of All Things Possible, provided them with the falsified plat. While the circuit court determined Hampton was the seller of Lot 45 and that he personally provided the falsified plat to the Moseleys, Lot 45 was actually owned by All Things Possible. Additionally, the representations made concerning the property were made by Whitehead, not Hampton. Thus, we find there was evidence in the record to support the circuit court's determination that All Things Possible committed fraud, and we affirm the circuit court.
II. James H. Hampton
The Appellants also argue the circuit court erred in finding Hampton personally committed fraud by clear and convincing evidence. We agree. "An officer, director, or controlling person in a corporation is not, merely as a result of his or her status as such, personally liable for the torts of the corporation." Rowe v. Hyatt, 321 S.C. 366, 369, 468 S.E.2d 649, 650 (1996). "To incur liability, the officer, director, or controlling person must ordinarily be shown to have in some way participated in or directed the tortious act." Id. Here, there was no evidence Hampton personally committed fraud. Lot 45 was owned by All Things Possible, not Hampton. Whitehead, acting as an agent of All Things Possible, provided the Moseleys with the falsified plat. There was no evidence Hampton faxed the falsified plat to Whitehead. All representations made to the Moseleys concerning Lot 45 were made by Whitehead. Accordingly, we reverse the circuit court's determination that Hampton committed fraud.
CONCLUSION
We affirm the circuit court's determination that All Things Possible committed fraud, and we reverse the circuit court's determination that James Hampton committed fraud. Accordingly, the circuit court's order is
AFFIRMED IN PART AND REVERSED IN PART.
WILLIAMS and PIEPER, J.J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1315985/ | 694 S.E.2d 738 (2010)
STATE of North Carolina
v.
Jimmy Waylon WARD.
No. 365PA09.
Supreme Court of North Carolina.
June 17, 2010.
*739 Roy Cooper, Attorney General, by Amy Kunstling Irene, Assistant Attorney General, for the State-appellant.
Paul F. Herzog, Fayetteville, for defendant-appellee.
Anne Bleyman, Chapel Hill, and Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., Counsel for North Carolina Advocates for Justice, amicus curiae.
BRADY, Justice.
In the case sub judice the State presented expert witness testimony at trial to the effect that pills found on Defendant Jimmy Waylon Ward's person, in his vehicle, and at his residence were pharmaceuticals classified as controlled substances under the North Carolina Controlled Substances Act. N.C.G.S. ch. 90, art. 5 (2009). The issue for our review is whether the trial court abused its discretion by permitting the State's expert witness to identify certain pills when the expert's methodology consisted solely of a visual inspection process. Under the facts of this case, the testifying expert's visual identification of the purported controlled substances is not sufficiently reliable under N.C.G.S. § 8C-1, Rule 702. Accordingly, the trial court abused its discretion, and we affirm the Court of Appeals.
FACTUAL AND PROCEDURAL BACKGROUND
In relevant part, the State's evidence at trial tended to show that Mandy Pope visited the New Hanover County Sheriff's Office, Vice and Narcotics Division, on 22 August 2006 seeking to assist law enforcement in an investigation of the individual who allegedly supplied her mother with illicit pharmaceuticals on a regular basis. Pope telephoned defendant from the Sheriff's Office and arranged to meet him at the Carolina Beach Exxon station for the purpose of purchasing thirty Lorcet pills for six dollars per pill. Lorcet is an opium derivative, a Schedule III controlled substance. After law enforcement placed a transmitter device in her purse and gave her three hundred dollars in United States currency, Pope traveled with Detective Nancy Willaford in an undercover minivan to the designated Exxon station, arriving shortly after 8:00 p.m. Several other undercover law enforcement officers conducted surveillance and provided security and back-up support. Defendant arrived five to ten minutes later and parked his black Chevrolet Monte Carlo next to the minivan. Pope then exited the minivan and entered defendant's vehicle. Detective Willaford remained in the minivan. Pope and defendant conversed in his vehicle, and then both exited when defendant retrieved something from the trunk of his vehicle. Pope and defendant then returned to defendant's vehicle, and Pope purchased from defendant thirty blue, oval-shaped pills, which Pope believed to be Lorcets, for one hundred eighty dollars in United States currency. Pope then exited defendant's vehicle, entered the minivan, and traveled back to the Sheriff's Office with Detective Willaford. Defendant left the Exxon station in his vehicle, and several law enforcement officers continued their surveillance by following him to his residence. Pope returned the remaining money and delivered the pills she purchased from defendant to law enforcement.
Based on the officers' surveillance and the events at the Carolina Beach Exxon station, warrants were obtained the next day, 23 August 2006, to arrest defendant and search his residence. After observing a black Monte Carlo leave the mobile home park where defendant resided, law enforcement officers stopped the vehicle and confirmed that defendant was the operator. Defendant was arrested and his person and vehicle were searched incident to the arrest. Law enforcement recovered three pill bottles and six hundred twenty dollars in United States currency from defendant. One bottle contained blue tablets and had a label attached indicating thirty tablets of Hydrocodone in the *740 name of Jimmy W. Ward. A second medicine bottle with an illegible affixed label contained white tablets. The third bottle contained three different kinds of pills and had a label attached indicating sixty tablets of generic Xanax in the name of defendant's cousin, Manuel Ward. Law enforcement officers also searched the trunk of defendant's vehicle and discovered several more bottles of pills and a bank envelope containing blue pills. A prescription bottle and an additional nine hundred five dollars were retrieved from under the trunk's carpeting. Law enforcement officers then searched defendant's residence and storage shed and another vehicle at the premises. From this search, officers seized a number of items, including a digital scale, a silver metal pipe fashioned as a smoking device, a substance resembling off-white rocks, a bottle containing ninety-three tablets with an affixed label indicating Hydrocodone for Manuel Ward, and a plastic drinking cup containing full and half pill tablets.
On 25 September 2006, the New Hanover County Grand Jury returned six true bills of indictment charging defendant with numerous crimes related to his activities on 22 and 23 August 2006 and the resulting searches previously described. At trial Special Agent Irvin Lee Allcox, a chemist in the Drug Chemistry Section of the State Bureau of Investigation (SBI) crime laboratory, was qualified and testified as an expert in chemical analysis of drugs and forensic chemistry. He testified to working over thirty-four years for the SBI, including the most recent twenty-four years as a chemist in the SBI crime laboratory. He stated he had previously testified as an expert in forensic chemistry over five hundred times in state and federal courts. Among the items the SBI laboratory received for examination from the New Hanover County Sheriff's Office pertaining to this case, Special Agent Allcox identified the following controlled substances: Dihydrocodeinone, Hydrocodone, and Oxycodone, which are opium derivatives, and cocaine, Amphetamine, Alprazolam (Xanax), Diazepam (Valium), and Methylphenidate (Ritalin). He also identified Carisoprodol (Soma), which is not a controlled substance.
In response to questions concerning the identification process, Special Agent Allcox testified that of the sixteen collections of items submitted, he conducted a chemical analysis on "about half of them." The remaining tablets were identified solely by visual inspection and comparison with information provided by Micromedex[1] literature, which Special Agent Allcox described as a "medical publication that is used by the doctors in hospitals and pharmacies to identify prescription medicine." According to Special Agent Allcox, the SBI has used Micromedex in some capacity throughout the nearly thirty-five years he has been associated with the agency. He testified that through "a listing of all the pharmaceutical markings," Micromedex can help "identify the contents, the manufacturer and the type of substances in the tablets." He believed that counterfeit tablets were obvious to distinguish because they lacked the uniform color, shape, and markings associated with the high standards of the pharmaceutical industry. In his opinion, no tablets seized in this case were counterfeit.
When asked why he performed only a visual inspection with Micromedex literature on some of the tablets and a chemical analysis on others, Special Agent Allcox focused his response on concerns for maximizing time and resources: "[W]e have limited resources and we have to weed outwe have to analyze the most important items. ... [W]e don't have the resources to analyze everything that's submitted." He also indicated that SBI standard operating procedures determined which substances received which type *741 of analysis depending on the information provided to the laboratory by the law enforcement officer submitting the evidence. Physical evidence submitted to the SBI laboratory for analysis must be accompanied by Form SBI-5, "Request for Examination of Physical Evidence." Crime Lab Div., N.C. State Bureau of Investigation, Evidence Guide 11, 13-15, 20 (Jan. 1, 2010), available at http://www. ncdoj.gov/About-DOJ/State-Bureau-of-Investigation/Crime-Lab/NCSBI-Evidence-Guide.aspx. In Part B of Form SBI-5, the requesting officer is asked to give a "[d]escription of the incident (Brief Summary of the events of the crime)" or to attach a copy of the investigative report. Id. at 15.
Special Agent Allcox described the significance of the requesting officer's description of the incident under investigation in terms of which type of analysis he performed. For instance, one collection of thirty pills in this case was not chemically analyzed because, based on the submission sheet given to the laboratory, the number of tablets submitted could potentially support only a misdemeanor charge of possession of a controlled substance. Under standard operating procedures, substances supporting only misdemeanor charges were routinely identified solely by visual inspection with comparison to the Micromedex literature. However, substances that were submitted to the laboratory under circumstances that would support felony charges received "a complete analysis" pursuant to laboratory procedures. (Emphasis added.) Defense counsel was quick to highlight on cross-examination that the collection of thirty pills at issue was ultimately used to bring a felony trafficking charge and not a misdemeanor possession charge. In response, Special Agent Allcox testified: "If the officer had indicated that it was an undercover buy case when submitting these 30 tablets, then I would have done a complete analysis." (Emphasis added.)
The trial court admitted Special Agent Allcox's testimony regarding the substances on which he conducted a chemical analysis;[2] furthermore, over defendant's objections, the trial court also admitted Special Agent Allcox's testimony regarding substances which he identified merely by visual inspection and reference to the Micromedex literature.[3]
Defendant offered evidence and testified to the effect that most of the seized items were his legitimate prescription medications or they belonged either to his cousin Manuel Ward or to a girlfriend. He denied selling controlled substances to Mandy Pope on 22 August 2006, and he explained that he acquired the large sums of currency through *742 buying and selling automobiles, a business he operated with his cousin Manuel Ward.
The jury returned guilty verdicts against defendant for six counts of trafficking in opium (three counts from his activities on 22 August 2006 and three counts arising from his arrest and the searches conducted on 23 August 2006), and single counts of intentionally maintaining a dwelling for keeping or selling controlled substances, possession of cocaine, intentionally maintaining a vehicle for keeping or selling controlled substances, possession of Ritalin with the intent to sell or deliver, possession of Xanax with the intent to sell or deliver, possession of Valium with the intent to sell or deliver, possession of Oxycodone with the intent to sell or deliver, and possession of drug paraphernalia. The trial court arrested the jury's guilty verdict in connection with the conviction for possessing Oxycodone with the intent to sell or deliver. All charges were consolidated for judgment, and defendant was sentenced to an active term of 90 to 117 months of imprisonment and a $100,000 fine pursuant to the guidelines established in N.C.G.S. § 90-95(h)(4)(b). Defendant then gave notice of appeal.
On appeal defendant challenged the trial court's admission of prior bad acts evidence in connection with an arrest on 10 February 2005, as well as Special Agent Allcox's testimony identifying certain items as controlled substances based solely on a visual inspection process. The Court of Appeals issued a unanimous opinion on 18 August 2009 finding no error in part and ordering a new trial in part. State v. Ward, ___ N.C.App. ___, ___, 681 S.E.2d 354, 373-74 (2009). Defendant's convictions for trafficking in opium on 23 August 2006 and for possession of cocaine were left undisturbed; however, the Court of Appeals vacated defendant's other convictions and ordered a new trial as to those offenses. Id. We allowed the State's motion for temporary stay on 4 September 2009. On 8 October 2009, this Court allowed the State's petitions for writ of supersedeas and for discretionary review to address whether the trial court abused its discretion by permitting Special Agent Allcox to give expert opinion testimony identifying certain pills based solely on a visual inspection methodology.
ANALYSIS
When reviewing the ruling of a trial court concerning the admissibility of expert opinion testimony, the standard of review for an appellate court is whether the trial court committed an abuse of discretion. Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004) (citations omitted). An "`[a]buse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.'" State v. Elliott, 360 N.C. 400, 419, 628 S.E.2d 735, 748 (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)), cert. denied, 549 U.S. 1000, 127 S. Ct. 505, 166 L. Ed. 2d 378 (2006).
Under the North Carolina Rules of Evidence, when "scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion." N.C.G.S. § 8C-1, Rule 702(a) (2009). Under Rule of Evidence 702, this Court has established three steps "for evaluating the admissibility of expert testimony: (1) Is the expert's proffered method of proof sufficiently reliable as an area for expert testimony? (2) Is the witness testifying at trial qualified as an expert in that area of testimony? (3) Is the expert's testimony relevant?" Howerton, 358 N.C. at 458, 597 S.E.2d at 686 (citing State v. Goode, 341 N.C. 513, 527-29, 461 S.E.2d 631, 639-41 (1995)). The proponent of the expert witness, in this case the State, has "the burden of tendering the qualifications of the expert" and demonstrating the propriety of the testimony under this three-step approach. See Crocker v. Roethling, 363 N.C. 140, 144, 675 S.E.2d 625, 629 (2009). The parties view this case as implicating only the first step of the evaluation, so we will only address whether the method of proof was sufficiently reliable as an area for expert testimony.
Determining the reliability of a method of proof is "a preliminary, foundational *743 inquiry into the basic methodological adequacy of an area of expert testimony." Howerton, 358 N.C. at 460, 597 S.E.2d at 687. In order to
determine whether an expert's area of testimony is considered sufficiently reliable, "a court may look to testimony by an expert specifically relating to the reliability, may take judicial notice, or may use a combination of the two." Initially, the trial court should look to precedent for guidance in determining whether the theoretical or technical methodology underlying an expert's opinion is reliable.
Id. at 459, 597 S.E.2d at 687 (quoting Goode, 341 N.C. at 530, 461 S.E.2d at 641). In the event that precedent does not guide the determination, or if a trial court is "faced with novel scientific theories, unestablished techniques, or compelling new perspectives on otherwise settled theories or techniques," then "nonexclusive `indices of reliability'" may be used to answer the question of reliability. Id. at 460, 597 S.E.2d at 687 (citations omitted). Several recognized indices of reliability are "the expert's use of established techniques, the expert's professional background in the field, the use of visual aids before the jury so that the jury is not asked to sacrifice its independence by accepting [the] scientific hypotheses on faith, and independent research conducted by the expert." Id. (alteration in original) (citations and internal quotation marks omitted).
Recently, the field of forensic science has come under acute scrutiny on a nationwide basis. When articulating the right of a criminal defendant under the Sixth Amendment of the United States Constitution to confront forensic analysts as witnesses at trial, the Supreme Court of the United States in Melendez-Diaz v. Massachusetts was quick to recognize the significance of a landmark report issued in 2009 by the National Academy of Sciences. ___ U.S. ___, ___, 129 S. Ct. 2527, 2536, 174 L. Ed. 2d 314 (2009) (citing Comm. on Identifying the Needs of the Forensic Scis. Cmty., Nat'l Research Council, Strengthening Forensic Science in the United States: A Path Forward (2009) [hereinafter National Academy Report], available at http://www.ncjrs.gov/pdffiles1/nij/grants/ 228091.pdf and http://books.nap.edu/ openbook.php?record_id=12589&page=R1). Relying on the National Academy Report in part, the Court commented that "[f]orensic evidence is not uniquely immune from the risk of manipulation," id. at ___, 129 S.Ct. at 2536, and "[s]erious deficiencies have been found in the forensic evidence used in criminal trials," id. at ___, 129 S.Ct. at 2537. The funding for the National Academy Report came from Congress in 2005 when it provided $1.5 million. H.R.Rep. No. 109-272, at 121 (2005) (Conf. Rep.). As a result, a diverse committee of forensic experts, scientists, and members of the legal community, conducted several years of research and concluded that the pervasive sentiment was that "[t]he forensic science system, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to overhaul the current structure that supports the forensic science community in this country." National Academy Report Preface, at xx (Emphasis omitted). Among its many findings, the committee noted that forensic scientists "sometimes face pressure to sacrifice appropriate methodology for the sake of expediency." Id. Summary, at 24. The committee further found that "[t]here are many hard-working and conscientious people in the forensic science community, but [] under-resourcing inherently limits their ability to do their best work." Id. at 15.
In the case sub judice our determination is guided in part by precedent, enactments of the General Assembly, and Special Agent Allcox's own testimony. We conclude that the visual inspection methodology Special Agent Allcox proffered as an area for expert testimony is not sufficiently reliable to identify the substances at issue.
In State v. Llamas-Hernandez a jury found the defendant guilty of trafficking in cocaine after hearing lay witness testimony from two law enforcement detectives who seized "a white powdery substance weighing approximately 55 grams" at a residence where the defendant was a co-tenant. 189 N.C.App. 640, 643, 659 S.E.2d 79, 81 (2008), rev'd per curiam, 363 N.C. 8, 673 S.E.2d 658 (2009). The substance was chemically analyzed *744 nine months before trial, but the laboratory report was not admitted into evidence as a sanction against the State for discovery violations. Id. at 651, 659 S.E.2d at 86 (Steelman, J., concurring in part and dissenting in part). The trial court allowed the detectives to testify as lay witnesses that the substance was powder cocaine based on their law enforcement experience and training in identifying controlled substances. Id. at 643, 647, 659 S.E.2d at 81, 83 (majority).
Subsequently, this Court reversed the Court of Appeals majority decision for "the reasons stated in the dissenting opinion." Llamas-Hernandez, 363 N.C. at 8, 673 S.E.2d at 658. The dissenting judge concluded that by providing "procedures for the admissibility of [] laboratory reports" and "enacting such a technical, scientific definition of cocaine, it is clear that the General Assembly intended that expert testimony be required to establish that a substance is in fact a controlled substance." Llamas-Hernandez, 189 N.C.App. at 652, 659 S.E.2d at 86-87 (Steelman, J., concurring in part and dissenting in part) (citing N.C.G.S. § 90-90(1)(d) (2007) (defining cocaine) and id. §§ 8-58.20, 90-95(g), (g1) (2007) (establishing procedures for admitting laboratory reports)). The dissent argued that "if it was intended by the General Assembly that an officer could make a visual identification of a controlled substance, then such provisions in the statutes would be unnecessary." Id. at 653, 659 S.E.2d at 87. The natural next step following our decision to adopt the reasoning of the dissenting judge in Llamas-Hernandez is to conclude here that the expert witness testimony required to establish that the substances introduced here are in fact controlled substances must be based on a scientifically valid chemical analysis and not mere visual inspection.[4]
Next, as in Llamas-Hernandez, we find acts of the General Assembly relevant to our decision. First and foremost is the obvious point that throughout the lists of Schedule I through VI controlled substances found in sections 90-89 through 90-94, care is taken to provide very technical and "specific chemical designation[s]" for the materials referenced therein. E.g., N.C.G.S. §§ 90-89(1) (opiates), -90(2) (opiates), -91(j) (stimulants), -92(a)(1) (depressants). These scientific definitions imply the necessity of performing a chemical analysis to accurately identify controlled substances before the criminal penalties in N.C.G.S. § 90-95 are imposed.
Furthermore, the legislature has made it unlawful not only to "manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance," id. § 90-95(a)(1), but it is also illegal to "create, sell or deliver, or possess with intent to sell or deliver, a counterfeit controlled substance," id. § 90-95(a)(2) (emphasis added). The statutory definition of "[c]ounterfeit controlled substance," id. § 90-87(6), designates three factors that collectively indicate evidence of an intent to misrepresent a controlled substance. One of the factors is that the "physical appearance of the tablets, capsules or other finished product containing the substance is substantially identical to a specified controlled substance." Id. § 90-87(6)(b)(3). Clearly, the General Assembly contemplated that anyone manufacturing a *745 counterfeit substance would make it look as close to the genuine product as possible. By imposing criminal liability for actions related to counterfeit controlled substances, the legislature not only acknowledged that their very existence poses a threat to the health and well-being of citizens in our state, but that a scientific, chemical analysis must be employed to properly differentiate between the real and the counterfeit. Even a different felony class level is assigned for sentencing purposes based on whether a particular item is a genuine or fake controlled substance. Compare id. § 90-95(b) (assigning various felony levels to criminal activity relating to controlled substances, including Classes C, G, H, and I) with id. § 90-95(c) (stating that "[a]ny person who violates G.S. 90-95(a)(2) [the counterfeit controlled substance provision] shall be punished as a Class I felon"). As such, a scientifically valid chemical analysis of alleged controlled substances is critical to properly enforcing the North Carolina Controlled Substances Act.
In addition to the guidance we receive from precedent and enactments of the General Assembly, we may also "`look to testimony by an expert specifically relating to the reliability'" of the method of proof. Howerton, 358 N.C. at 459, 597 S.E.2d at 687 (quoting Goode, 341 N.C. at 530, 461 S.E.2d at 641). Here, Special Agent Allcox's testimony is lacking in sufficient credible indicators to support the reliability of his visual inspection methodology. There is little evidence in the record either implying that identification of controlled substances by mere visual inspection is scientifically reliable or suggesting that Special Agent Allcox's particular methodology was uniquely reliable. His testimony is completely devoid of any scientific data or demonstration of the reliability of his methodology. Moreover, in stating, "I have not seen counterfeit pharmaceuticals that you cannot look at and see that they were counterfeit," and "I have seen very few pharmaceutical counterfeits over the years," Special Agent Allcox did not provide positive proof for the reliability of his methodology, especially when "the rising occurrence of potentially unsafe counterfeit drugs" is considered. U.S. Food & Drug Admin., FDA Initiative to Combat Counterfeit Drugs, http://www.fda.gov/Drugs/Drug Safety/ucm180899.htm (last visited June 4, 2010) (emphasis added); see also Pharmaceutical Supply Chain Security: Hearing Before the H. Subcomm. on Criminal Justice, Drug Policy, and Human Resources of the Comm. on Government Reform, 109th Cong. 24 (2006) ("`Counterfeit prescription drugs ... pose a serious threat to the public health. Many are visually indistinguishable from authentic drugs.'" (emphasis added) (quoting U.S. Food & Drug Admin., FDA Counterfeit Drug Task Force Report: 2006 Update, at 1, available at http://www.fda.gov/ Drugs/DrugSafety/ucm172773.htm)); Robert C. Bird, Counterfeit Drugs: A Global Consumer Perspective, 8 Wake Forest Intell. Prop. L.J. 387, 387, 389 (2008) ("The proliferation of counterfeit medicines is one of the most pressing issues facing the pharmaceutical industry. ... The World Health Organization estimates that ... up to 20% [of drugs] sold in developed countries are counterfeit." (citations omitted)).
Rather than demonstrating its proven reliability, Special Agent Allcox's explanation for using Micromedex literature focused on concerns for expediency and maximizing limited laboratory resources in light of the relative seriousness of the criminal charges. The SBI's own website states that "chemists perform the chemical analysis of evidence from criminal investigations, such as drugs," and "chemists utilize state-of-the-art instrumentation systems to analyze evidence." N.C. Dep't of Justice, State Bureau of Investigation, Drug Chemistry & Toxicology, http:// www.ncdoj.gov/About-DOJ/State-Bureau-of-Investigation/Crime-Lab/Drug-Chemistry-and-Toxicology.aspx (last visited June 4, 2010). Apparently, however, this is not invariably the case. On cross-examination Special Agent Allcox explained: "And the procedure[] in the crime laboratory is that misdemeanor pharmaceutical cases, if it's misdemeanor amounts, less than a felony amount, then we do an identification using the Micromedics [sic] files and cases involving felony amounts, then we do a complete analysis."% (Emphasis added.) It is difficult to view this testimony as reflecting anything other than a technique for "cutting *746 corners." Thus, even Special Agent Allcox's own testimony casts an unsettling shadow of doubt on the reliability of mere visual inspection as a method of proof.
In arguing for the reliability of a visual inspection methodology, the State emphasizes Special Agent Allcox's professional experience and contends that "Micromedex is a well-established method that has been used by the crime lab for 35 years and is also used by doctors and pharmacists." The State submits that any shortcomings inherent to the visual identification process should be measured by the jury only when considering the weight of the evidence. We disagree.
Special Agent Allcox's credentials are not disputed; he appears to be eminently qualified as an expert witness in forensic chemistry. He has worked over thirty-four years with the SBI, including twenty-four years as a forensic chemist, and he handles pharmaceuticals on nearly a daily basis. The prosecutor at trial referred to him as "supremely qualified." However, the issue here concerns the reliability of his method of proof, which is a "preliminary, foundational inquiry." Howerton, 358 N.C. at 460, 597 S.E.2d at 687. "Once the trial court has determined that the method of proof is sufficiently reliable as an area for expert testimony, the next level of inquiry is whether the witness testifying at trial is qualified as an expert to apply this method to the specific facts of the case." Goode, 341 N.C. at 529, 461 S.E.2d at 640 (emphasis added) (citing N.C. R. Evid. 702).[5]
Special Agent Allcox's remarkable credentials as a forensic chemist presents a particularly compelling need to halt his testimony when it is based on an insufficient method of proof. In State v. Grier this Court held that polygraph evidence is inadmissible at trial because of the inherent unreliability of polygraph tests. 307 N.C. 628, 642-45, 300 S.E.2d 351, 359-61 (1983). As well, this Court was "disturbed by the possibility that the jury may be unduly persuaded" by the testimony of the polygraph examiner, which would likely "`be shrouded with an aura of near infallibility.'" Id. at 643, 300 S.E.2d at 360 (quoting United States v. Alexander, 526 F.2d 161, 168 (8th Cir.1975)). This Court further noted that "`[t]o the extent that the polygraph results are accepted as unimpeachable or conclusive by jurors, despite cautionary instructions by the trial judge, the jurors' traditional responsibility to collectively ascertain the facts and adjudge guilt or innocence is preempted.'" Id. at 644, 300 S.E.2d at 360 (quoting Alexander, 526 F.2d at 168). The concern in the present context is that jurors may ascribe so much authority to such a noteworthy expert in forensic chemistry that they treat his testimony as infallible and automatically accept his opinion on the chemical composition of a substance, without properly appreciatingeven with vigorous cross-examination and proper jury instructionsthat the expert chemist never even performed a scientific, chemical analysis.
Additionally, the length of time a method has been employed does not necessarily heighten its reliability or alleviate our concerns. The SBI's practice has been illuminated here due in part to the Supreme Court of the United States decision in Melendez-Diaz v. Massachusetts, in which the Court indicated that the Confrontation Clause of the Sixth Amendment to the United States Constitution applies to forensic analysts generating laboratory reports in criminal investigations because the reports are testimonial in nature. ___ U.S. at ___, 129 S.Ct. at 2531-32; see also State v. Locklear, 363 N.C. 438, 452, 681 S.E.2d 293, 304-05 (2009) (applying *747 Melendez-Diaz to a forensic analyst's autopsy report). Forensic chemists are being called upon to testify as expert witnesses so that defendants have an opportunity for cross-examination. The practical effect of the Melendez-Diaz ruling is that through cross-examination more light is being shed on the procedures expert witnesses use to support their testimony. In some instances, when practices are illuminated "in the crucible of cross-examination," their shortcomings become apparent. See Crawford v. Washington, 541 U.S. 36, 61, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). In this way, the Confrontation Clause gradually advances its "ultimate goal," which is to "ensure reliability of evidence." Id.
Furthermore, the State notes that doctors and pharmacists utilize Micromedex literature in the health care industry. However, if health care professionals make mistakes there are established legal avenues of recourse for damages. The consequences at stake in a criminal prosecution make the present situation somewhat different. The reliability of an expert witness's method of proof should be addressed before a defendant is found guilty, stripped of his liberty, and serves a sentence of incarceration.
Because the method of proof at issue is not sufficiently reliable for criminal prosecutions, we cannot conclude, as the State argues, that the deficiencies of Special Agent Allcox's visual identification process only affect the amount of weight the jury assigns to his testimony. Adopting that view would circumvent the fundamental issue at stake, that is, the reliability of the evidence, and would risk a greater number of false positive identifications.
We acknowledge that controlled substances come in many forms and that we are unable to foresee every possible scenario that may arise during a criminal prosecution. Nevertheless, the burden is on the State to establish the identity of any alleged controlled substance that is the basis of the prosecution. Unless the State establishes before the trial court that another method of identification is sufficient to establish the identity of the controlled substance beyond a reasonable doubt, some form of scientifically valid chemical analysis is required. This holding is limited to North Carolina Rule of Evidence 702. Our ruling does not affect visual identification techniques employed by law enforcement for other purposes, such as conducting criminal investigations. Moreover, common sense limits this holding regarding the scope of the chemical analysis that must be performed. The State submitted sixteen batches of items consisting of over four hundred tablets to the SBI laboratory in this case. A chemical analysis of each individual tablet is not necessary. The SBI maintains standard operating procedures for chemically analyzing batches of evidence, and the propriety of those procedures is not at issue here. A chemical analysis is required in this context, but its scope may be dictated by whatever sample is sufficient to make a reliable determination of the chemical composition of the batch of evidence under consideration. As this Court stated in Howerton, expert testimony need not be "indisputably valid before it can be admitted into evidence." 358 N.C. at 460, 597 S.E.2d at 687.
The aim is that the analysis be objective. SBI chemists are in a unique position. The SBI is "a division of the Department of Justice," and Special Agent Allcox is a sworn law enforcement officer who "work[s] closely with local police and Sheriffs, [and] district attorneys." N.C. Dep't of Justice, State Bureau of Investigation, http://www.ncdoj.gov/ about-DOJ/state-bureau-of-investigation.aspx (last visited June 4, 2010). Yet, subjectivity that may unwittingly lead to law enforcement bias is a peril that should be guarded against in the field of forensic science. In the end, our holding today will, we think, promote not merely convictions of those who have violated the Controlled Substances Act, but will help ensure true justice. Ultimately, the State is better served by identifying perpetrators with reliable evidence and reducing the likelihood that convictions rest on inaccurate data.
For the foregoing reasons we conclude that, as the proponent of Special Agent Allcox's expert witness testimony, the State has not carried its burden of demonstrating the sufficient reliability of his visual inspection methodology. Therefore, the trial court abused its discretion by permitting Special *748 Agent Allcox to identify certain evidence as controlled substances based merely on visual inspection as a method of proof. We affirm the Court of Appeals as to the issue before us and remand to that court for further remand to the trial court for additional proceedings not inconsistent with this opinion.
AFFIRMED AND REMANDED.
Justice NEWBY, dissenting.
In this case the trial court properly exercised its discretion to admit an expert's testimony that, based on a visual examination and comparison with a medical publication, pills seized from defendant contained controlled substances. However, the majority concludes that the expert's method of visually identifying controlled substances is unreliable and that the trial court's decision to the contrary was an abuse of discretion. The majority's approach alters the law of this state as it pertains to the admission of expert opinion testimony. Accordingly, I respectfully dissent.
Special Agent Allcox of the State Bureau of Investigation ("SA Allcox") is an expert in forensic chemistry and drug analysis. He has two degrees in science, including a chemistry degree from North Carolina State University. The courses of study leading to these degrees included instruction in quantitative analysis of physical chemistry, general chemistry, organic chemistry, and qualitative analysis. In addition to his formal scientific education, SA Allcox has investigated and analyzed drugs in a professional capacity for over thirty-four years. Using this considerable education and experience, SA Allcox identified the pills seized in this case and determined that the majority of those pills contained controlled substances.
SA Allcox used a two step visual identification method to determine the composition of some of the pills seized from defendant. First, utilizing his education, training, and experience, SA Allcox examined the item and made notes of its pharmaceutical markings, its appearance, its color, its size, and its shape, and compared his findings to "a listing of all the pharmaceutical markings [used] to identify" a pill in the Micromedex publication. Second, after identifying the pill, SA Allcox determined its chemical composition from the Micromedex publication.
SA Allcox explained that the SBI laboratory normally uses this visual identification method to analyze pills in misdemeanor cases. It does so because the laboratory does not have the resources to conduct a chemical analysis of every item submitted. The SBI laboratory uses chemical analyses in its other cases to ensure that more of its resources are devoted to the more serious offenses, such as those involving cocaine and opium derivatives. SA Allcox explained that despite the lack of chemical analysis the method of visually identifying pills is reliable and proven.
SA Allcox testified that the medical industry believes that visual identification is a reliable method of determining a pill's chemical composition. He stated that "doctors in hospitals and pharmacies" rely on Micromedex "to identify prescription medicine." SA Allcox also explained that pharmacists dispense pills "based upon the markings that are on the drug" and that to identify those pills, pharmacists use the same Micromedex database that is used by the SBI laboratory. The clear implication from this testimony is that medical professionals believe this visual identification method is sufficiently reliable to stake their professional licenses, reputations, and patients' well-being on the accuracy and reliability of its results.
Furthermore, SA Allcox indicated that the SBI itself believes this method is reliable. SA Allcox stated that the SBI laboratory has used Micromedex "for the 35 years that [he has] been associated with the crime laboratory" and trusts the accuracy of the results achieved using it. His testimony further demonstrates this belief. After visually examining the pills in State's Exhibit 26-B-2, SA Allcox determined from Micromedex that the pills were Carisoprodol, which contains no controlled substances. Once he made this conclusion he conducted no further testing on these pills.
SA Allcox testified that the possibility of counterfeit pills does not render the visual identification method unsound or unreliable. SA Allcox explained that generally, he sees *749 prescription tablets frequently and "test[s] them ... on a daily basis in the crime laboratory." Further, SA Allcox indicated that he is aware of counterfeit pharmaceutical pills and stated that in his time with the SBI he has seen such pills. However, SA Allcox also explained that the "pharmaceutical industry is very closely regulated" and genuine "pharmaceutical tablets are very uniform in size and appearance and color." On the other hand, SA Allcox recalled that his experience had shown counterfeit tablets to be "very mismatched [and] not uniform in appearance." Regarding the tablets examined in this case, SA Allcox said they appear to be authentic. Generally, as noted by the majority, defendant conceded the authenticity of "most of the seized items."
Before an expert's opinion is admissible at trial, the trial court must conclude the expert's "method of proof" is sufficiently reliable. Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004) (citing State v. Goode, 341 N.C. 513, 527-29, 461 S.E.2d 631, 639-40 (1995)). That determination is a "preliminary, foundational inquiry," id. at 460, 597 S.E.2d at 687, consistent with our trial courts' responsibility under the Rules of Evidence to decide "preliminary questions concerning... the admissibility of expert testimony," id. at 458, 597 S.E.2d at 686 (citing N.C.G.S. § 8C-1, Rule 104(a) (2003)). In performing this task "trial courts are afforded wide latitude of discretion" that will be upset on appeal only if the trial court abuses its discretion. Id. (citations and internal quotation marks omitted).
In State v. Goode this Court recognized that to be admissible an expert's method of proof must be sufficiently reliable. 341 N.C. 513, 527-29, 461 S.E.2d 631, 639-40. A trial court may consider expert testimony related to reliability, take judicial notice of the method's reliability, or rely on some combination of the two to make its decision. Id. at 530, 461 S.E.2d at 641 (citations omitted). In Goode the trial court heard testimony from the State's proffered expert regarding the reliability of bloodstain pattern interpretation. Id. We determined that the expert's testimony was sufficient to satisfy our reliability standard. Id. Additionally, we noted that our appellate courts had previously "implicitly accepted bloodstain pattern interpretation as a scientific method of proof." 341 N.C. at 530-31, 461 S.E.2d at 641. Accordingly, we determined that the trial court properly admitted expert testimony interpreting bloodstain patterns from a crime scene. Id. at 524, 530-31, 461 S.E.2d at 637-38, 641-42.
Several years later, in Howerton v. Arai Helmet, Ltd., we examined the reliability standard of Goode and compared it with the reliability standard under the federal evidentiary rules to determine whether the standards are the same. Ultimately, we concluded that our trial courts are not required to thoroughly scrutinize an expert's scientific method like the Supreme Court of the United States required of federal trial courts in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Howerton, 358 N.C. at 455-69, 597 S.E.2d at 684-93. While Daubert required federal trial courts to determine, inter alia, whether an expert's method of proof is "`scientifically valid,'" id. at 456, 597 S.E.2d at 685 (quoting Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796, 125 L.Ed.2d at 482), the Goode standard requires our trial courts to inquire only into the "basic methodological adequacy" of an expert's method of proof, id. at 460, 597 S.E.2d at 687.
Perhaps most importantly, we emphasized that the Goode standard does not require an expert's method "to be proven conclusively reliable or indisputably valid." Id. We explained there is a "fundamental distinction between the admissibility" and the credibility of evidence. Id. (citing Queen City Coach Co. v. Lee, 218 N.C. 320, 323, 11 S.E.2d 341, 343 (1940)). We recognized that even after satisfying our admissibility standard, there may be "lingering questions or controversy concerning the quality of the expert's conclusions," but added that those matters affect the testimony's weight and credibility, not its admissibility. 358 N.C. at 461, 597 S.E.2d at 688 (citations omitted). We reminded the bench and the bar that "`[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate *750 means of attacking shaky but admissible evidence.'" Id. (quoting Daubert, 509 U.S. at 596, 113 S.Ct. at 2798, 125 L.Ed.2d at 484) (alteration in original).
The standard of reliability for admitting expert testimony in our trial courts was illustrated just last year in Crocker v. Roethling, 363 N.C. 140, 675 S.E.2d 625 (2009).[6] In that case the plaintiffs sought to demonstrate that the defendant medical doctor breached the applicable "same or similar community" standard of care when he failed to perform a Zavanelli maneuver during delivery of their daughter. 363 N.C. at 141, 675 S.E.2d at 627 (Hudson & Timmons-Goodson, JJ.). The trial court excluded testimony from the plaintiffs' expert, John P. Elliott, M.D., as it appeared that he was "insufficiently familiar" with the applicable standard of care, id. at 143, 675 S.E.2d at 628, and that he failed to demonstrate a reliable method by which he formed his opinion on the content of the applicable standard of care, 363 N.C. at 158, 675 S.E.2d at 637-38 (Newby, J., Parker, C.J. & Brady, J., dissenting).
This Court reversed the exclusion of that testimony even though "Dr. Elliott had never practiced in Goldsboro and admitted in his deposition that he had never even practiced in a community similar to Goldsboro." Id. at 160, 675 S.E.2d at 639. Further, Dr. Elliott testified at his deposition that he "had never performed the Zavanelli maneuver, nor had he ever observed it performed during his twenty-four years of practice in Phoenix." Id. at 150-51, 675 S.E.2d at 633 (Martin & Edmunds, JJ., concurring). In fact, he formed his opinion "in part on a worldwide study that found only about one hundred reported cases in which the Zavanelli maneuver was used between 1985, when the maneuver was first mentioned in medical literature, and 1997, four years before [plaintiffs' daughter's] birth." Id. at 162, 675 S.E.2d at 640 (Newby, J., dissenting).
In reversing the trial court's decision excluding the expert's opinion, the opinions composing the majority emphasized that the threshold reliability standard in this state is not exacting. Justice Hudson's opinion indicated that the threshold admissibility standard is met if the expert asserted familiarity with the applicable standard of care. Id. at 148, 675 S.E.2d at 631 (Hudson, J.). Justice Martin's opinion echoed that sentiment, stating that the foundational inquiry does not require conclusive reliability. Id. at 149, 675 S.E.2d at 632 (Martin, J., concurring). Justice Martin's opinion explained that "[e]vidence may be `"`shaky but admissible,'"' and it is the role of the jury to make any final determination regarding the weight to be afforded to the evidence." Id. at 150, 675 S.E.2d at 632 (quoting Howerton, 358 N.C. at 460-61, 597 S.E.2d at 687-88).
Additionally, the Court made clear that there is no particular scientific method required to satisfy the reliability standard of Goode. Justice Hudson's opinion explained that "our statutes [and] case law ... do [not] prescribe any particular method by which a medical doctor must become `familiar' with a given community. Many methods are possible, and our jurisprudence indicates our desire to preserve flexibility in such proceedings." Id. at 147, 675 S.E.2d at 631 (Hudson, J.). The other two opinions agreed. Id. at 151, 675 S.E.2d at 633 (Martin, J., concurring); id. at 158, 675 S.E.2d at 637 (Newby, J., dissenting).
Finally, the opinions composing the majority reminded our trial courts that they should not exercise their discretion in a manner that excludes "shaky" expert testimony. Justice Hudson's opinion stated that this Court has "cautioned trial courts against `asserting sweeping pre-trial "gatekeeping" authority... [which] may unnecessarily encroach upon the constitutionally-mandated function of the jury to decide issues of fact and to assess the weight of the evidence.'" Id. at 147-48, 675 S.E.2d at 631 (Hudson, J.) (citations omitted). Similarly, Justice Martin's opinion emphasized the distinction this Court drew in Howerton between the stringent federal standard and our flexible standard that preserves the *751 constitutional role of the jury. Id. at 150, 675 S.E.2d at 632-33 (Martin, J., concurring).
Crocker demonstrates the reliability of SA Allcox's method in the case sub judice. In Crocker the expert's testimony was markedly less reliable than SA Allcox's testimony. The expert in Crocker had never performed or seen a Zavanelli maneuver during roughly twenty-five years of practice. This patent lack of experience notwithstanding, this Court concluded that the trial court committed reversible error by excluding his testimony opining that such a maneuver was part of the standard of care for a medical doctor practicing in Goldsboro because, in part, a study found that roughly ten Zavanelli maneuvers were performed worldwide each year between 1985 and 1997. See 363 N.C. at 162, 675 S.E.2d at 640 (Newby, J., dissenting). If the trial court in Crocker committed reversible error by excluding the expert's testimony, then SA Allcox's method of proofutilizing over thirty-four years of experience in performing an analysis relied upon by both law enforcement and medical professionalsis sufficiently reliable under the Goode standard. If visual identification is sufficiently reliable in potentially life-and-death scenarios, it is difficult to fathom how the majority concludes the method is legally inadequate.
Furthermore, our recent decision in State v. Llamas-Hernandez, reversing the decision of the Court of Appeals "[f]or the reasons stated in the dissenting opinion," 363 N.C. 8, 673 S.E.2d 658 (2009), demonstrates that the trial court here did not abuse its discretion. In Llamas-Hernandez the dissenting opinion determined that the trial court abused its discretion when it allowed a police detective to provide lay opinion testimony that non-descript white powder was cocaine. 189 N.C.App. 640, 651, 654, 659 S.E.2d 79, 86, 88 (Steelman, J., concurring in part and dissenting in part).
The dissenting judge in Llamas-Hernandez offered several reasons for his conclusion. First, his opinion explains that, because our General Statutes contain technical definitions of controlled substances and procedures for admitting and allowing access to laboratory reports, expert testimony (rather than lay testimony) is needed to prove the existence of a controlled substance. Id. at 652-53, 659 S.E.2d at 86-87 (citations omitted). Second, the dissenting judge opined that the white powder had no characteristics that could be distinguished by sight. The dissenting opinion explained that while crack cocaine "pills" may be susceptible to visual identification because of their "distinctive color, texture, and appearance," id. at 654, 659 S.E.2d at 87, powdered cocaine is "a non-descript white powder" not conducive to a visual identification, id. The dissenting opinion's reasoning was consistent with long-standing precedent regarding the visual identification of controlled substances. See State v. Fletcher, 92 N.C.App. 50, 56-58, 373 S.E.2d 681, 685-86 (1988) (upholding the trial court's admission of expert testimony based on a visual examination that a substance was marijuana while stating that evidence of a chemical analysis would be entitled to greater weight).
In the case sub judice, an expert visually identified controlled substances with distinguishing characteristics. It is already established that SA Allcox is a qualified expert. Furthermore, SA Allcox explained that the manner in which he performed his analysis was to first "make notes of its pharmaceutical markings, its appearance, its color, its size, and its shape." These are all distinctive characteristics. SA Allcox would then locate the matching tablet in the Micromedex publication, from which he learned the "contents, the manufacturer and the type of substances in the tablets." In other words, SA Allcox described to the trial court the manner in which he used his experience and credentials to not only ascertain the distinctive characteristics of the pills he was examining and then determine their composition from Micromedex, but also to ensure that the pills were not counterfeit. As such, the trial court soundly exercised its discretion.
The majority's decision to the contrary significantly alters the law of this state as it pertains to the admission of expert testimony. At the outset, the majority's holding is essentially contrary to a point on which this Court unanimously agreed in Crocker: that because the Goode standard can be satisfied in any number of ways, trial courts should *752 not lightly dismiss a particular method. Crocker, 363 N.C. at 147, 675 S.E.2d at 631 (Hudson, J.); id. at 151, 675 S.E.2d at 633 (Martin, J., concurring); id. at 158, 675 S.E.2d at 637 (Newby, J., dissenting). However, today the majority determines that "[u]nless the State establishes ... another method of identification is sufficient to establish the identity of the controlled substance beyond a reasonable doubt, some form of scientifically valid chemical analysis is required." This holding expressly limits the manner in which an expert may arrive at his or her opinion, in direct contradiction of this Court's statements in Crocker.
Further, the majority's decision appears to raise the threshold for the admission of expert testimony from the level established in Crocker. In Crocker we determined that the trial court erred by excluding expert testimony regarding the propriety of a rarely used procedure in a small community from an expert who utilized no relevant experience in his method of proof. Yet here the Court concludes that an expert's method of proof is unreliable despite his many years of experience performing the method and its use in the medical community. Such a conclusion most assuredly raises the admissibility standard from where it stood after Crocker.
Perhaps most significantly, the majority changes the foundational inquiry our trial judges must conduct prior to admitting an expert's opinion. In Howerton we explained that the federal trial courts are required to thoroughly scrutinize and determine that an expert's method of proof is "scientifically valid" before admitting that opinion. 358 N.C. at 456, 597 S.E.2d at 685 (quoting Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796, 125 L.Ed.2d at 482). We then distinguished our approach as "decidedly less mechanistic and rigorous than the exacting standards of reliability demanded by the federal approach." Id. at 464, 597 S.E.2d at 690 (citation and internal quotation marks omitted). Despite this illustration, the majority today emphasizes on several occasions that the trial court abused its discretion by admitting the expert's opinion in this case because the expert's method of proof is not "scientifically valid." Accordingly, it seems the majority's decision has altered the inquiry our trial courts must conduct.
The majority's attempt to use the present case's status as a criminal prosecution to justify its decision is unpersuasive. There is only one evidentiary standard for expert testimony. See N.C.G.S. § 8C-1, Rule 702 (2009). Further, we relied upon Goode, a criminal case, to provide our admissibility framework in Howerton and Crocker, both civil cases. The majority approves of such interchangeable use because its opinion relies upon Goode, Howerton, and Crocker. Nonetheless, the majority relies on Confrontation Clause cases to support its conclusion that SA Allcox's method of proof "is not sufficiently reliable for criminal prosecutions." (Emphasis added.) The majority advances as the purpose of the Confrontation Clause to "`ensure reliability of evidence.'" (Quoting Crawford v. Washington, 541 U.S. 36, 61, 124 S. Ct. 1354, 1370, 158 L. Ed. 2d 177, 199 (2004).) The majority opinion correctly recites the Clause's purpose, but misses its focus. The Confrontation Clause is a "procedural... guarantee." Crawford, 541 U.S. at 61, 124 S.Ct. at 1370, 158 L.Ed.2d at 199. Those accused of criminal offenses are entitled to cross-examine the witnesses against them. This is the same procedural protection we afford in regard to all expert witnesses. As we said in Howerton, "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." 358 N.C. at 461, 597 S.E.2d at 688 (citations and internal quotation marks omitted) (alteration in original). Therefore, whether a case is criminal or civil in nature does not change the tenet that cross-examination is properly used to illustrate to the jury an opinion's shortcomings. However, the Confrontation Clause should not prevent the jury from considering the opinion altogether.
Moreover, the majority's attempt to justify its reasoning by noting the allegedly increasing incidents of counterfeit pharmaceutical drugs is similarly unavailing. Initially, there is some question regarding the propriety of reversing a discretionary decision of a trial *753 court in reliance upon facts not presented to the trial court and that are not part of the record on appeal. In any event, the majority's creation of a prophylactic measure intended to prevent confusing a fake controlled substance with the genuine article is unwarranted. The General Assembly has provided a mechanism for a defendant to obtain evidence against him and have it tested. N.C.G.S. § 15A-903(a)(1) (2009). A defendant simply has to ask the trial court to order the State to produce the physical evidence, and the court must do so. Id. As the General Assembly has enacted this safeguard, the majority's attempt to use this case's classification as a criminal prosecution to justify its alteration of our evidence law is unfounded.
The majority concedes that the medical profession uses the Micromedex publication to identify medications when accurate identification could mean the difference between life and death. Yet the majority concludes that an expert opinion based on Micromedex is not sufficiently reliable to even be presented as potentially persuasive evidence to a criminal jury. Notwithstanding the majority's implications to the contrary, I believe that the medical profession's desire for appropriate diagnosis and treatment is as significant as that of our judicial system for accurate verdicts.
Whereas the majority concludes that the trial court's decision lacked a basis in reason, I believe the trial court exercised its discretion in a manner that comports with the law of this state regarding admission of expert testimony. Accordingly, I respectfully dissent.
Justice TIMMONS-GOODSON concurs in the result only.
NOTES
[1] The transcript of Special Agent Allcox's testimony reflects the spelling, "Micromedics," and the Court of Appeals presumably adopted that spelling based on the transcript. See State v. Ward, ___ N.C.App. ___, ___, 681 S.E.2d 354, 369, 372-73 (2009). However, both parties agree before this Court that "Micromedex" is the correct name. See, e.g., Wright v. Abbott Labs., 62 F. Supp. 2d 1186, 1195 (D.Kan. 1999) (referencing "the Micromedex drug information program"), aff'd, 259 F.3d 1226 (10th Cir.2001); Schroeder v. Nw. Cmty. Hosp., 371 Ill.App.3d 584, 588, 308 Ill. Dec. 808, 862 N.E.2d 1011, 1015-16 (2006) (same), appeal denied, 224 Ill. 2d 593, 312 Ill. Dec. 661, 871 N.E.2d 61 (2007); http://www. micromedex.com. Accordingly, we will adopt the spelling "Micromedex" to refer to the literature utilized by Special Agent Allcox.
[2] Special Agent Allcox conducted a chemical analysis of the following substances: (1) State's Exhibit 26-A-1, determined to be crack cocaine, a Schedule II controlled substance, with a weight of 3.0 grams; (2) State's Exhibit 26-A-3, consisting of 94 green tablets, determined to contain Dihydrocodeinone (Hydrocodone), a Schedule III preparation, with a weight of 76.8 grams; (3) State's Exhibit 26-B-1, consisting of 18½ blue tablets, determined to contain Dihydrocodeinone (Hydrocodone), a Schedule III preparation, with a weight of 15.7 grams; (4) State's Exhibit 26-B-4, consisting of 66 blue tablets, determined to contain Dihydrocodeinone (Hydrocodone), a Schedule III preparation, with a weight of 55.36 grams; (5) State's Exhibit 26-B-6, consisting in part of 13 orange tablets, determined to contain Amphetamine (Adderall), a Schedule II preparation, with a weight of 4.7 grams; (6) State's Exhibit 26-B-7, consisting of 19 white tablets, determined to contain Hydrocodone/Dihydrocodeinone, a Schedule III preparation, with a weight of 12.24 grams; and (7) State's Exhibit 26-B-12, consisting of 13 white tablets and determined to contain Dihydrocodeinone (Hydrocodone), a Schedule III preparation, with a weight of 9.5 grams.
[3] Identification by visual inspection alone was made as to the following: (1) State's Exhibit 3-A, consisting of 30 blue tablets, determined to contain Dihydrocodeinone (Hydrocodone), a Schedule III controlled substance, with a total weight of 24 grams; (2) State's Exhibit 26-A-4, consisting of 3 blue tablets and fragments, identified as containing Amphetamine (Adderall), a Schedule II controlled substance; (3) State's Exhibit 26-B-3, consisting of (a) 83½ small, blue, oval tablets, identified as containing Alprazolam (Xanax), a Schedule IV controlled substance, (b) 14 round, blue tablets, identified as containing Diazepam (Valium), a Schedule IV controlled substance, and (c) 15½ orange tablets, identified as containing Methylphenidate (Ritalin), a Schedule II controlled substance; (4) State's Exhibit 26-B-5, containing 23 white tablets, identified as Oxycodone, a Schedule II controlled substance; (5) State's Exhibit 26-B-6, containing 5½ white tablets, identified as Methylphenidate (Ritalin), a Schedule II controlled substance; and (6) State's Exhibit 26-B-9, containing 13 blue tablets, identified as Oxycodone, a Schedule II controlled substance.
[4] Although not binding on this Court, we also note that courts in other jurisdictions have reached similar conclusions. In an analogous case from Illinois, an appellate court held that expert witness testimony identifying tablets as containing controlled substances based on comparing them "to pictures in a book" amounted to "conjecture" and "speculat[ion]" and was not a "conclusive scientific analysis" on which the prosecution could rely to carry its burden of proof. People v. Mocaby, 378 Ill.App.3d 1095, 1100, 318 Ill. Dec. 39, 882 N.E.2d 1162, 1167 (2008); see also State v. Colquitt, 133 Wash.App. 789, 794, 137 P.3d 892, 894 (2006) (overturning a conviction when the prosecutor offered as evidence that a law enforcement officer believed the substance at issue was cocaine and conducted a field test that was never verified by further laboratory testing).
The State cites decisions from other jurisdictions that appear to allow the type of visual inspection process at issue for identifying controlled substances. See State v. Carter, 07-1237, p. 14-16 (La.App. 3 Cir. 4/9/08); 981 So. 2d 734, 744-45; State v. Clark, 2008 MT 419, ¶¶ 40-43, 347 Mont. 354, ¶¶ 40-43, 198 P.3d 809, ¶¶ 40-43 (2008); State v. Stank, 2005 WI App 236, ¶¶ 40-44, 288 Wis. 2d 414, ¶¶ 40-44, 708 N.W.2d 43, ¶¶ 40-44, rev. dismissed, 2006 WI 3, 286 Wis. 2d 664, 708 N.W.2d 695 (2005). To the extent these cases support the State's argument, we find them unpersuasive to our holding.
[5] We note that although Special Agent Allcox's background is impressive in the field of analytical chemistry, he stated that he lacks a pharmaceutical degree or specialized training in pharmaceuticals. He testified that he holds a bachelor of science degree with a major in chemistry from North Carolina State University. While not the primary issue before us, we take this opportunity to note that "[c]aution should be exercised in assuring that the subject matter of the expert witness's testimony relates to the expertise the witness brings to the courtroom." Walker Jameson Blakey et al., North Carolina Evidence: 2010 Courtroom Manual 241 (2010). Beyond his routine use of Micromedex literature to visually identify substances, there is little indication in the record that Special Agent Allcox was better qualified to visually identify a tablet than the average juror with ordinary perceptive abilities who, if called upon, could compare a tablet to a photograph and other descriptive literature.
[6] There is no majority opinion in this case. Justice Hudson filed an opinion in which Justice Timmons-Goodson joined. Justice Martin filed an opinion in which Justice Edmunds joined. Together, these opinions constituted "a majority of the Court in favor of reversing and remanding." Crocker, 363 N.C. at 154 n. 1, 675 S.E.2d at 635 n. 1 (Newby, J., dissenting). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316039/ | 694 S.E.2d 720 (2010)
CABRERA
v.
The STATE.
No. A09A1658.
Court of Appeals of Georgia.
April 12, 2010.
*721 Nicki N. Vaughan, Adam S. Levin, Richard J. Silver, for appellant.
Lee Darragh, Dist. Atty., John G. Wilbanks, Jr., Asst. Dist. Atty., for appellee.
SMITH, Presiding Judge.
Rodolfo Cabrera appeals from his conviction for trafficking in methamphetamine. He asserts that insufficient evidence supports his conviction and that he received ineffective assistance of counsel. Although sufficient evidence supports Cabrera's conviction, we must reverse and grant him a new trial because he received ineffective assistance of counsel.
Viewed in the light most favorable to the verdict, the record shows that a confidential informant arranged for a person named Arroyo to deliver two pounds of methamphetamine at a location in Hall County. Police officers set up surveillance at the delivery location and observed a sport utility vehicle park next to the confidential informant's vehicle. Cabrera was the driver, and Arroyo was seated in the front passenger seat. After the confidential informant identified Arroyo, the police detained both Arroyo and Cabrera. Two dogs trained to detect the odor of drugs separately showed "a strong odor response" to the center console between where Arroyo and Cabrera had been sitting, but the officers did not find any drugs in it. An officer "standing at the back area of the vehicle" saw "a crack on the left-hand side of the vehicle on the interior in the storage area on the plastic on the side of the vehicle." Another officer went "to the back area," and after the plastic in the cargo area was pulled out, "reached in and recovered a bag which contained two Tupperware containers which contained ... approximate[ly] two pounds of methamphetamine" worth $89,600. The registered owner of the sport utility vehicle lived at the same address as Cabrera. The police did not find any contraband on Cabrera's person.
After entering into a guilty plea agreement with Arroyo shortly before Cabrera's trial, the State called Arroyo as a witness. After Arroyo acknowledged that he had been charged with trafficking in methamphetamine, Arroyo answered the State's follow-up questions as follows:
Q. Mr. Arroyo, did you plead guilty to trafficking in methamphetamine on Friday here in this court?
A. Yes, sir.
Q. And you were represented by attorney Michael Friedman?
A. Yes, sir.
Q. And as part of that being in court you were under oath and were asked questions and answered them, is that correct?
A. Yes.
Q. I'm going to ask you some of those same questions. Mr. Arroyo, on or about *722 June the 22nd of 2005, did you have a conversation with someone here in Hall County and agree to secure methamphetamine for them?
A. I can't answer any questions.
Q. You answered that yes on Friday, didn't you?
A. I'm not going to answer any questions.
Q. Mr. Arroyo, did I ask you strike that. Did you contact someone to get that methamphetamine from the person?
A. I'm not going to answer any questions.
Q. Mr. Arroyo, didn't you answer that under oath yes on Friday?
A. I'm not going to answer questions.
Q. Who was that person, Mr. Arroyo?
A. I'm not going to answer.
Q. Didn't you answer that it was Rudolf Cabrera?
A. I'm not going to answer.
Q. Mr. Arroyo, have you been threatened since you were in court on Friday?
A. I will not answer any questions.
Q. You have been in contact with Mr. Cabrera in the Hall County jail, haven't you?
A. I will not answer any questions.
Q. And he found out you were going to testify Friday, didn't he?
At this point, Cabrera's counsel objected on the ground that it was a leading question. The trial court overruled it after clarifying that the "objection voiced ... was to ... leading questions." The State then resumed its questioning of Arroyo as follows:
Q. And, Mr. Arroyo, did you, in fact, travel to meet with Mr. Carbrera about obtaining methamphetamine?
A. I will not answer any questions.
Q. Isn't it true, Mr. Arroyo, that you testified, yes, that you met with Mr. Cabrera about obtaining methamphetamine?
A. I will not answer any questions.
Q. Mr. Arroyo, what amount of methamphetamine were you obtaining from Mr. Cabrera?
A. I will not answer any questions.
Q. Mr. Arroyo, isn't it true under oath on Friday you answered that two pounds of methamphetamine?
A. I will not answer any questions.
Q. Mr. Arroyo, how much were you going to sell the two pounds of methamphetamine for?
A. I will not answer any questions.
Q. Mr. Arroyo, isn't it true that you answered that under oath on Friday as being $20,000?
A. I will not answer any questions.
Q. Mr. Arroyo, where did you meet Mr. Cabrera at to obtain the two pounds of methamphetamine?
A. I will not answer any questions.
Q. Mr. Arroyo, isn't it true that you answered that under oath on Friday that you met him at a gas station?
A. I will not answer any questions.
Q. Mr. Arroyo, did he did he, being Mr. Cabrera, agree to come back and deliver the two pounds of methamphetamine with you?
A. I will not answer.
Q. Mr. Arroyo, isn't is true that you answered that yes under oath on Friday?
A. I will not answer.
Q. Mr. Arroyo, who was driving the vehicle when y'all attempted to deliver the two pounds of methamphetamine?
A. I will not answer any questions.
Q. Mr. Arroyo, isn't it true that you answered that under oath on Friday?
A. I will not answer any questions.
Q. Mr. Arroyo, whose car or vehicle were you traveling in to deliver the methamphetamine?
A. I will not answer any questions.
Q. Isn't it true, Mr. Arroyo, that you answered that under oath on Friday?
A. I will not answer any questions.
Q. Mr. Arroyo, when you arrived at the location for the delivery with Mr. Cabrera, were you both arrested?
A. I will not answer any questions.
Q. Isn't it true that you answered under oath on Friday that, yes, you and Mr. Cabrera were arrested?
*723 A. I will not answer any questions.
Q. Mr. Arroyo, how long have you known Mr. Cabrera?
A. I will not answer any questions.
Q. Isn't it true that you stated under oath here Friday that you had known him two years?
A. I will not answer any questions.
Q. Mr. Arroyo, has he provided methamphetamine for you on previous occasions?
. . .
A. I will not answer any questions.
Q. Didn't you say he had provided methamphetamine for you on previous occasions under oath on Friday?
A. I will not answer any questions.
Q. Mr. Arroyo, how much was Rudolf Cabrera charging you per pound for methamphetamine?
A. I will not answer any questions.
Q. Isn't it true that you answered under oath on Friday that you were paying $19,000 for the two pounds of methamphetamine?
A. I will not answer any questions.
Q. Mr. Arroyo, how much money did you were you to make off the methamphetamine sale?
A. I will not answer any questions.
Q. Mr. Arroyo, isn't it true that you stated you were to make $1,000 in profit on Friday under oath?
A. I will not answer any questions.
Q. Mr. Arroyo, do you agree those are the questions I asked you Friday under oath before Judge Fuller
A. I will not answer any questions.
Q. when you were represented by Michael Friedman, your attorney, who was present?
A. I will not answer any questions.
Q. Mr. Arroyo, weren't you sentenced under your trafficking plea to 25 years to serve 15 in the penitentiary?
A. I will not answer any questions.
Q. And to pay a fine of $400,000 plus all the surcharges?
A. I will not answer any questions.
Q. Mr. Arroyo, do you remember the court reporter, Mr. Bill Abel, taking down your testimony under oath on Friday?
A. I will not answer any questions.
Q. Mr. Arroyo, what has happened between Friday and today to cause you to refuse to testify here today?
A. I will not answer any questions.
Q. Mr. Arroyo, were you present at the time of your plea when your attorney and I and the judge discussed segregating you from Mr. Cabrera in the jail.
A. I will not answer any questions.
Q. And isn't it true that you've been in the same cell block as Mr. Cabrera since Friday until yesterday when you came to court?
A. I will not answer any questions.
At the conclusion of its direct examination, the State introduced into evidence, without objection from defense counsel, a transcript from Arroyo's guilty plea hearing. Later in the trial, defense counsel made a continuing witness objection to the plea colloquy being considered by the jury during their deliberations, and the trial court sustained the objection. A review of the transcript does not reveal that the plea colloquy was ever published or read to the jury.
At defense counsel's request, the trial court charged the jury that "[e]vidence does not include ... the content of any questions asked by the attorneys." The trial court also reminded the jury before the closing arguments of counsel "that nothing that the attorneys have said or might have implied through their questions is evidence for your consideration. ..."
1. Cabrera contends that insufficient evidence supports his conviction because he was merely present near hidden contraband. We have excluded from our review of this issue the State's leading questions to Arroyo and the plea colloquy. "[H]earsay testimony is not only inadmissible but wholly without probative value, and its introduction without objection does not give it any weight or force whatever in establishing a fact." (Citations and punctuation omitted.) In re Burton, 271 Ga. 491, 494(3), 521 S.E.2d 568 (1999). See also Barksdale v. *724 State, 265 Ga. 9, 10-11(2)(a), 453 S.E.2d 2 (1995) (co-defendant's statement inadmissible hearsay because he refused to answer any questions in court); Lingerfelt v. State, 235 Ga. 139, 140, 218 S.E.2d 752 (1975) (State cannot introduce co-indictee's statement through leading questions when co-indictee refuses to testify).
The remaining evidence against Cabrera establishes that he did not own the SUV he was driving at the time of his arrest, that the owner lived at the same address as Cabrera, that the methamphetamine was hidden in the rear compartment of the car, that his passenger arranged for the sale of the same quantity of methamphetamine found in the SUV, that the informant talked to Arroyo several times to provide directions while Arroyo was on his way with the methamphetamine, and that Cabrera drove to the location arranged by the informant and Arroyo for pick-up of the methamphetamine.
Where the State is unable to provide evidence of actual possession, it may sustain a conviction based upon evidence of constructive possession. Johnson v. State, 282 Ga.App. 52, 54(1), 637 S.E.2d 775 (2006). Constructive possession requires proof that the accused "knowingly had both the power and the intention at a given time to exercise control over the drugs." (Citation, punctuation and footnote omitted.) Id. In cases involving contraband found in automobiles, the State is generally entitled to an evidentiary presumption that the owner or driver of the automobile is in constructive possession of the contraband. See Ramirez v. State, 290 Ga.App. 3, 4(1), 658 S.E.2d 790 (2008). That presumption does not apply, however, where there is evidence that persons other than the accused had equal access to the vehicle prior to the discovery of the drugs. Farmer v. State, 152 Ga.App. 792, 796, 264 S.E.2d 235 (1979). But "the equal access rule does not apply to eliminate the presumption of possession where all persons allegedly having equal access to the contraband are alleged to have been in joint constructive possession of the contraband." (Citation and punctuation omitted.) Ramirez, supra, 290 Ga.App. at 4(1), 658 S.E.2d 790.
In this case, Cabrera was not entitled to the benefit of the equal access rule because the State also indicted Arroyo for possessing the methamphetamine. Id. at 4-5(1), 658 S.E.2d 790. Based upon the rebuttable presumption that Cabrera constructively possessed the methamphetamine found in the car in which he was driving and all of the other non-hearsay evidence submitted by the State, we conclude that sufficient evidence supports his conviction. Id.
2. In his remaining enumeration of error, Cabrera asserts he received ineffective assistance of counsel because his lawyer failed to raise a Confrontation Clause objection when the State began asking leading questions after Arroyo refused to testify. Cabrera contends his counsel should also have objected to the introduction of Cabrera's plea colloquy into evidence.
The two-prong test for determining the validity of a claim of ineffectiveness of counsel provided in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) asks whether counsel's performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel's deficiency.
(Citation, punctuation and footnote omitted.) Bruce v. State, 252 Ga.App. 494, 498(2), 555 S.E.2d 819 (2001).
We recognize that trial counsel agreed in the motion for new trial hearing that "these issues of objection were strategic in nature" based upon her defense theory that Cabrera was simply an innocent driver who gave a ride to the wrong person. She also testified, however, that she did not have a problem with the jury hearing the contents of Arroyo's plea colloquy through the State's leading questions because she had expected Arroyo to testify about his involvement with the drugs. Finally, she acknowledged that if she had been "aware of common law that said a plea was inadmissible in the face of a co-defendant's refusal to testify, were I aware of a piece of law that said that, I would have kept it out."
*725 Based on the well-established law that the State cannot introduce a co-indictee's statement through leading questions when the co-indictee refuses to testify, we must conclude that trial counsel provided ineffective assistance by failing to object. Lingerfelt v. State, 235 Ga. 139, 140, 218 S.E.2d 752 (1975). To the extent she may have failed to object based upon trial strategy, we find that it was "not a reasonable decision a competent attorney would have made under the same circumstances." Benham v. State, 277 Ga. 516, 518, 591 S.E.2d 824 (2004). "[I]nvoking the words `tactics' and `strategy' does not automatically immunize trial counsel against" an ineffective assistance of counsel claim. (Citation and punctuation omitted.) Id.
We also find that Cabrera has demonstrated a reasonable probability that the outcome would have been different if his trial counsel had made the proper objection to the prosecutor's questioning of Arroyo. The questioning refuted the defense theory that Cabrera was an innocent driver who was not involved in the drug transaction. It also implied that Cabrera had threatened Arroyo into refusing to testify against him.
In Bruton, the U.S. Supreme Court ruled that the admission of the confession of a non-testifying co-defendant inculpating the defendant deprived the defendant of the right to cross-examine witnesses, included in the Sixth Amendment right to confront witnesses, even when the admission of the co-defendant's statement was accompanied by an instruction limiting the jury's consideration of the confession to the case against the confessing co-defendant. The court based its holding on the recognition that deliberately spreading before the jury the "powerfully incriminating extrajudicial statements of a co-defendant" untested by cross-examination was a threat to a fair trial as it presented a situation "in which the risk that the jury will not, or cannot, follow instructions [to consider the confession only against its maker] is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored."
(Citation and footnote omitted.) Hanifa v. State, 269 Ga. 797, 801(2), 505 S.E.2d 731 (1998).
In this case, the numerous questions posed by the State were so powerfully incriminating that we cannot presume that the jury followed the trial court's instruction against treating the questions posed by the lawyers as evidence. Compare Wilcox v. State, 297 Ga.App. 201, 205(2), 677 S.E.2d 142 (2009) (based upon trial court's limiting instruction, defendant could not demonstrate prejudice from trial counsel's failure to object to prosecutor's reference to the co-defendant's guilty plea during opening statement). Our opinion in Wilcox does not require a different result because in Wilcox, the evidence brought before the jury was the mere fact that the co-defendant had pled guilty. In this case, Arroyo was called to the witness stand and asked numerous questions inculpating Cabrera in the crime, all of which Arroyo refused to answer. Based upon the particular facts and circumstances of this case, trial counsel provided ineffective assistance of counsel by failing to object to this violation of her client's right to effective cross-examination under the Confrontation Clause of the Sixth Amendment, and Cabrera is therefore entitled to a new trial.
Judgment reversed.
PHIPPS and BERNES, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316053/ | 694 S.E.2d 185 (2010)
HENDERSON
v.
The STATE.
No. A10A0305.
Court of Appeals of Georgia.
April 7, 2010.
*187 Patrick G. Longhi, Atlanta, for appellant.
Garry T. Moss, Dist. Atty., Holly L. Varner, Asst. Dist. Atty., for appellee.
MIKELL, Judge.
After a jury trial, Cecil Henderson was convicted of aggravated sexual battery (Count 12), four counts of sexual battery (Counts 3, 6, 9, 15), five counts of enticing a child for indecent purposes (Counts 1, 4, 7, 10, 13), and five counts of child molestation (Counts 2, 5, 8, 11, 14). Henderson was sentenced to a total of 25 years.[1] On appeal, Henderson argues that his trial counsel was ineffective and that the trial court erred in denying his motion for directed verdict of acquittal and in admitting similar transaction evidence. Because we reverse Henderson's convictions for enticing a child for indecent purposes, we affirm in part and reverse in part.
"On appeals from criminal convictions, the appellate court views the evidence in the light most favorable to the verdict. We no longer presume the defendant is innocent, nor do we weigh the evidence or decide the witnesses' credibility, but only determine if the evidence is sufficient to sustain the convictions."[2] So viewed, the record shows that 11-year-old S.H. testified that her grandfather, the appellant, molested her several times. S.H. testified that on the first occasion, she was leaving her grandparents' home. Henderson asked her to touch her private area and placed his finger inside her underwear. On a different occasion when she was spending the night at her grandparents' home, Henderson inserted his finger into her vagina and moved it up and down and made her touch his penis. The last incident involved Henderson touching her bottom while they were in bed, and she cried and pretended that she was ill so that he would stop. S.H. recalled that on that occasion, Henderson took her back to her own home during the night because she said she was sick. S.H. also testified that she talked with her little brother, M.H., about their grandfather and learned that Henderson was also touching him. When asked why she did not tell her parents about the incidents, S.H. testified that she was afraid of Henderson and that she did not think her parents would believe her.
Eight-year-old M.H. testified that Henderson had touched his private part, but he did not remember how many times it had happened nor had he talked to anyone about it other than S.H. before the investigation began. Brett Henderson, M.H. and S.H.'s father, testified that his family spent quite a bit of time with his parents, as they often picked the children up from school, and that the children regularly spent nights with them. He recalled that on one occasion when his mother was out of town, the children went to spend the night with Henderson, who brought them home in the middle of the night.
On the day that Brett learned of the molestation, his older daughter, Jessica, called him at work and told him that S.H. and M.H. had gone down to the pond behind their house and would not come back. Brett told Jessica to call Henderson and to ask him to come over to get M.H. and S.H. away from *188 the pond. When Brett arrived home, Jessica told him that M.H. and S.H. told her that they did not want to go with Henderson because he had hurt them. Brett asked the children if Henderson had ever touched their private parts, and they replied that he had. Brett testified that he told his wife about the abuse and confronted his father before going to the police to report the molestation.
1. In a one-paragraph argument that his trial counsel was ineffective, Henderson lists several things that his trial counsel failed to do. Specifically, Henderson maintains that trial counsel did not present an adequate defense or consult with him about witnesses who were subpoenaed but did not testify. Additionally, trial counsel did not explain to him the law about character witnesses, adequately investigate a similar transaction witness, or explore fully during trial the motives of adults who coach children to lie.
Henderson does not support his argument with citation to the record nor does he provide citation of authority to support each alleged instance of ineffectiveness.
To establish ineffective assistance of counsel under Strickland v. Washington[3] a defendant must demonstrate (1) that his trial counsel's performance was deficient, and (2) that counsel's deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. To make that showing, [Henderson] must rebut the strong presumption that his lawyer's conduct falls within the wide range of reasonable professional assistance. As a general rule, matters of reasonable trial tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel. We will not reverse a trial court's findings regarding either the deficiency or prejudice prong of the Strickland test unless clearly erroneous.[4]
Despite Henderson's list of alleged deficiencies in his trial counsel's performance, Henderson has not demonstrated that he was prejudiced. As stated above, "[i]t is well settled that in order to prove the defense has been prejudiced, defendant must show there is a reasonable probability that the result of the proceedings would have been different but for counsel's unprofessional deficiencies."[5] As Henderson has not made this requisite showing, we affirm the trial court's denial of his motion for new trial.
2. In his next enumeration of error, Henderson argues that the trial court erred when it denied his motion for directed verdict of acquittal as to Counts 1, 4, 7, 10, and 13, all of which charged Henderson with enticing a child for indecent purposes by unlawfully soliciting, enticing, and taking the children to his home for the purpose of child molestation and indecent acts. Henderson contends that these convictions cannot stand because the children came to his home regularly and voluntarily and with their parents' consent. For the reasons that follow, we reverse these convictions.
Pursuant to OCGA § 16-6-5(a) "[a] person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts." The statute has been held to include the element of "asportation,"[6] and our Supreme Court has held that this element "is satisfied whether the `taking' involves physical force, enticement, or persuasion."[7] "[A]ny asportation, however slight, is sufficient to show the taking element of enticing a child for indecent purposes."[8] But there is *189 no evidence of a taking or asportation in the instant case. The videotaped statement of M.H., the victim in Counts 1, 4, and 7 of the indictment, was played for the jury. M.H. stated that he was touched by Henderson on two separate occasions in Henderson's bedroom and once in the bathroom, and in these instances, Henderson closed the doors to the rooms. S.H. testified that the incidents occurred while she was in her grandmother's bed and was joined by Henderson, or when she was in other areas of the house. However, there was no evidence that he enticed, persuaded, or lured the children into any area of the house. "[I]n the absence of sufficient probative evidence that appellant himself enticed the victims onto the premises with the present intention to commit acts of indecency or child molestation after they had been enticed there, his convictions for violating OCGA § 16-6-5 cannot stand."[9] Accordingly, we reverse Henderson's convictions of enticing a child for indecent purposes and vacate the sentences imposed thereon.[10]
3. In his last enumerated error, Henderson argues that the trial court erroneously admitted similar transaction evidence from Cheryl Turner and Randi Leigh Henderson. Specifically, Henderson contends that Turner's testimony was too remote and that Randi Leigh impeached herself when she admitted that she has told lies during most of her life. We find no error.
The decision of a trial court to admit evidence of similar transactions will be upheld unless clearly erroneous. To be admissible for the purposes of establishing motive, intent, course of conduct or bent of mind, the State must show (a) sufficient evidence that the similar transaction occurred and (b) sufficient connection or similarity between the similar transaction and the crime alleged so proof of the former tends to prove the latter. When considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate crime and the crime in question. This rule is most liberally extended in cases involving sexual offenses because such evidence tends to establish that a defendant has such bent of mind as to initiate or continue a sexual encounter without a person's consent.[11]
Turner testified that she was Henderson's niece and that he molested her when she was four years old and again when she was seven or eight. At the time of trial, Turner was 49 years old, so the alleged molestation occurred, at the very least, 41 years earlier. Randi Leigh testified that she was Henderson's granddaughter and acknowledged that she gave a statement that Henderson had molested her twenty times when she was between the ages of seven and nine. Randi Leigh was 20 years old when she gave the statement; thus, the abuse occurred approximately 15 years before the trial.
As a general rule, the lapse of time generally goes to the weight and credibility of the evidence, not to its admissibility. Nonetheless, where similar transactions are particularly remote because they were committed decades in the past, the passage of time is one of the more important factors to weigh in considering the admissibility of the evidence in question, although it is not wholly determinative. This factor takes on heightened significance when the similar transaction evidence is comprised of alleged acts for which there is no prior record of their occurrence.[12]
*190 However, "[w]here different generations are involved, as in the case sub judice, obviously many years are going to lapse between the acts."[13] Accordingly, we have held that "similar transaction evidence that shows a pattern of sexual abuse against several generations of members of the same family is admissible despite the lapse of time between the acts."[14] Therefore, in such cases, evidence that was decades old has been admitted as similar transaction evidence.[15]
Although our Supreme Court held in Gilstrap v. State[16] that an event that occurred 31 years in the past was too remote to be admitted as similar transaction evidence,[17] it nonetheless declined to establish a bright-line rule from its holding in Gilstrap, stating in Pareja[18] that "[t]he determination of the admissibility of similar transaction evidence requires a balancing of probative value and prejudice which is individualized to the facts of each specific case."[19] The Court stated that "while a 31-year-old similar transaction was inadmissible in Gilstrap, an equally remote or older similar transaction might be admissible in a case involving a divergent set of facts."[20]
Here, the evidence displayed a course of conduct of Henderson's that involved the abuse of many generations of his family. Therefore, despite the lapse of time, we cannot conclude that the trial court abused its discretion when it admitted this evidence. Consequently, Henderson's enumerated error fails. We also point out that Henderson's argument that Randi Leigh's testimony should have been excluded because it was not credible is not pertinent to his similar transaction challenge. The issue of the witness's credibility was a matter for the jury's determination, not for this appellate court.[21]
Judgment affirmed in part and reversed in part.
SMITH, P.J., and ADAMS, J., concur.
NOTES
[1] Henderson's sentence included 20 years to serve on Counts 2, 5, 8, 11, 12, and 14, to run concurrently; 5 years to serve on Counts 3, 6, and 9, to run consecutive to the sentence imposed on Count 2; 20 years probation on Counts 1, 4, 7, 10, and 13, to run concurrent with Count 2; and 5 years probation on Count 15, to run consecutive to Count 2.
[2] (Citations omitted.) Foster v. State, 300 Ga. App. 446, 447(1), 685 S.E.2d 422 (2009).
[3] 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
[4] (Punctuation and footnotes omitted; emphasis supplied.) Bazin v. State, 299 Ga.App. 875, 876-877, 683 S.E.2d 917 (2009).
[5] (Citation and punctuation omitted.) Nelson v. State, 255 Ga.App. 315, 322-323(10), 565 S.E.2d 551 (2002).
[6] Cimildoro v. State, 259 Ga. 788, 789(1), 387 S.E.2d 335 (1990).
[7] Id.
[8] (Punctuation omitted.) Hicks v. State, 254 Ga. App. 814, 816(3), 563 S.E.2d 897 (2002), citing Bragg v. State, 217 Ga.App. 342(1), 457 S.E.2d 262 (1995).
[9] (Citations and punctuation omitted; emphasis omitted.) Bragg, supra at 343(1), 457 S.E.2d 262. Accord Lasseter v. State, 197 Ga.App. 498, 499-500(1), 399 S.E.2d 85 (1990).
[10] See Sanders v. State, 145 Ga.App. 73, 74, 243 S.E.2d 274 (1978) (convictions reversed where evidence showed that indecent acts were committed but that the victims were not enticed to the premises).
[11] (Citations and punctuation omitted.) Payne v. State, 285 Ga. 137, 138, 674 S.E.2d 298 (2009).
[12] (Citations and punctuation omitted; emphasis omitted.) Pareja v. State, 286 Ga. 117, 119, 686 S.E.2d 232 (2009).
[13] (Citation omitted.) Bryson v. State, 210 Ga. App. 642, 644(2), 437 S.E.2d 352 (1993).
[14] (Footnote omitted.) Wright v. State, 259 Ga. App. 74, 75(1), 576 S.E.2d 64 (2003). Accord Corbitt v. State, 301 Ga.App. 665, 666-667(2), 688 S.E.2d 642 (2009).
[15] See Wright, supra at 75-76(1), 576 S.E.2d 64 (34 years not too remote); Bryson, supra at 643-644(2), 437 S.E.2d 352 (31 years not too remote).
[16] 261 Ga. 798, 410 S.E.2d 423 (1991).
[17] Id. at 799(1)(b), 410 S.E.2d 423.
[18] Supra.
[19] Id. at 121, 686 S.E.2d 232.
[20] (Footnote omitted.) Id.
[21] See Huggins v. State, 239 Ga.App. 727, 728(1), 521 S.E.2d 888 (1999). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316052/ | 387 S.C. 640 (2010)
694 S.E.2d 18
SOUTH CAROLINA DEPARTMENT OF CORRECTIONS, Respondent,
v.
Billy Joe CARTRETTE, Appellant.
No. 4670.
Court of Appeals of South Carolina.
Submitted March 1, 2010.
Decided April 5, 2010.
Withdrawn, Substituted and Refiled May 28, 2010.
Rehearing Denied May 28, 2010.
*641 Billy J. Cartrette, pro se, for Appellant.
*642 Lake E. Summers, of Columbia, for Respondent.
CURETON, A.J.
Billy Joe Cartrette filed a grievance with the South Carolina Department of Corrections concerning conditions of his participation in the Prison Industries Program (PIP). Cartrette appeals the circuit court's order remanding his case to the Administrative Law Court (ALC) for a determination of the prevailing wage for similar work, reversing the ALC's finding that Cartrette was an employee of the private sponsor, affirming the ALC's denial of overtime wages, and affirming the ALC's denial of reimbursement for certain pay deductions.[1] We reverse as to overtime wages, remand that issue to the ALC for further proceedings as outlined in this opinion, and affirm the circuit court's decisions on all remaining issues.[2]
After we issued our original opinion affirming in part and reversing in part, both parties petitioned for rehearing. We deny Cartrette's petition for rehearing, grant the Department's petition for rehearing, withdraw our previous opinion, and substitute this opinion.
FACTS
Cartrette was an inmate of the Ridgeland Correctional Institution. As a participant in PIP, Cartrette provided on-site labor at the Ridgeland Correctional Institution, sometimes working in excess of ninety hours per two-week period, for PIP sponsor Kwalu Furniture. Cartrette was compensated at a rate of $5.50 per hour. Cartrette filed a grievance with the Department complaining his hourly wage was insufficient compared to the prevailing wage for similar work performed in the private sector. He asserted non-inmate employees earned $11.00 to $14.00 per hour for the same work. Cartrette further complained he did not receive additional pay for overtime hours and the Department improperly withheld *643 funds from his paychecks. Specifically, Cartrette challenged as unconstitutional the withholding of funds for his room and board and additional funds for Victim's Assistance.[3]
The Department denied Cartrette's grievance, and Cartrette appealed to the ALC. The ALC reversed the Department's refusal to pay Cartrette the prevailing wage and found the prevailing wage was $5.25. Furthermore, the ALC affirmed the Department's denials of overtime and reimbursement for wage deductions.
Both Cartrette and the Department then appealed to the circuit court. After a hearing, the circuit court found $5.25 was not the prevailing wage and remanded that issue to the ALC with seven questions for the ALC to consider in determining the correct prevailing wage. The circuit court reversed the ALC's apparent finding that Cartrette "worked for... or was otherwise ever an employee of Kwalu." Finally, the circuit court affirmed the ALC's determinations Cartrette was ineligible for overtime or reimbursement of wage deductions for room and board and for Victims Assistance. Cartrette now appeals.
STANDARD OF REVIEW
The ALC has subject matter jurisdiction under the Administrative Procedures Act (APA) to hear properly perfected appeals from the Department's final orders in administrative or non-collateral matters. Slezak v. S.C. Dep't of Corr., 361 S.C. 327, 331, 605 S.E.2d 506, 507 (2004). Our standard of review derives from the APA. Al-Shabazz v. State, 338 S.C. 354, 379, 527 S.E.2d 742, 755 (2000). We may affirm, remand, reverse, or modify the appealed decision if the appellant's substantive rights have suffered prejudice because the decision is:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
*644 (c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
S.C.Code Ann. § 1-23-610(B) (Supp.2009).
LAW/ANALYSIS
I. Overtime Pay
Cartrette contends he is entitled to time-and-a-half pay for overtime worked. We agree.
In South Carolina, a non-inmate employee's right of action for overtime pay lies in § 207(a)(1) of the Federal Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C.A. §§ 201-219 (1998 & Supp.2009). Under the FLSA, non-inmate workers receive compensation at a rate of one and one-half times their hourly rate for hours worked in excess of forty per week. 29 U.S.C.A. § 207(a)(2) (1998). This court recently examined the legislative intent underlying the FLSA and found:
The purpose of the FLSA is to protect "the rights of those who toil, of those who sacrifice a full measure of their freedom and talents to the use and profit of others." Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597, 64 S. Ct. 698, 88 L. Ed. 949 (1944). The FLSA was enacted in response to a congressional finding that some industries, engaged in commerce, maintained labor conditions which were detrimental to a minimum standard of living necessary for health, efficiency, and the general well-being of workers. See 29 U.S.C. § 202(a) (1998). The Act attempts to eliminate unfair labor practices without substantially curtailing employment or earning power. 29 U.S.C. § 202(b). Because the FLSA is remedial and humanitarian in purpose, it should be broadly interpreted and applied to effectuate its goals. Tennessee Coal, Iron & R.R. Co., 321 U.S. at 597, 64 S. Ct. 698; Benshoff v. City of Virginia Beach, 180 F.3d 136 (4th Cir.1999).
Miller v. Blumenthal Mills, Inc., 365 S.C. 204, 221, 616 S.E.2d 722, 730 (Ct.App.2005).
*645 Our supreme court has held the FLSA does not extend to inmate workers because, for purposes of payment of wages, inmate workers are not employees of PIP sponsors. Williams v. S.C. Dep't of Corr., 372 S.C. 255, 260, 641 S.E.2d 885, 888 (2007). Other courts, including the Federal Court of Appeals for the Fourth Circuit, have also declined to extend the protections of the FLSA and state labor statutes to inmates. See, e.g., Harker v. State Use Indus., 990 F.2d 131, 135 (4th Cir.1993).
Nonetheless, South Carolina law requires that inmate workers in a PIP enjoy pay and working conditions comparable to those enjoyed by non-inmate workers. According to our supreme court, the overall purpose of these statutes "is to prevent unfair competition." Adkins v. S.C. Dep't of Corr., 360 S.C. 413, 418, 602 S.E.2d 51, 54 (2004).
The [Department] must determine prior to using inmate labor in a [PIP] that it will not displace employed workers, that the locality does not have a surplus of available labor for the skills, crafts, or trades that would utilize inmate labor, and that the rates of pay and other conditions of employment are not less than those paid and provided for work of [a] similar nature in the locality in which the work is performed.
S.C.Code Ann. § 24-3-315 (2007). "No inmate participating in [PIP] may earn less than the prevailing wage for work of [a] similar nature in the private sector." S.C.Code Ann. § 24-3-430(D) (2007). "Inmate participation in the program may not result in the displacement of employed workers in the State of South Carolina and may not impair existing contracts for services." S.C.Code Ann. § 24-3-430(E) (2007). While inmates are not entitled to a private right of action in tort, they may protest through the grievance process the Department's failure to comply with these statutes. Adkins, 360 S.C. at 419, 602 S.E.2d at 55.
We expand upon the analysis of this issue in our original opinion, as that analysis appears to have been incomplete. Cartrette properly brought this matter as a grievance and alleged the Department denied him time-and-a-half overtime wages for the hours he worked beyond forty each week. As observed above, both federal and South Carolina courts have held inmate workers do not qualify as "employees" and *646 are therefore excluded from the coverage of the FLSA.[4]See Williams, 372 S.C. at 260, 641 S.E.2d at 888; Harker, 990 F.2d at 135. However, our General Assembly has required the Department to ensure inmate workers receive "rates of pay and other conditions of employment" comparable to those afforded non-inmate workers performing similar labor in the same locality. See § 24-3-315. Consequently, we hold that although the FLSA does not apply to inmate workers, sections 24-3-315 and 24-3-430(D) compel the Department to ensure inmate workers who are employed under those sections receive the same pay rates and employment conditions as their non-inmate peers.[5]
The statutory mandate of comparable pay rates and employment conditions does not expressly exclude time-and-a-half pay for overtime hours worked. Instead, sections 24-3-315 and 24-3-430(E) require that inmate workers receive comparable compensation and prohibit inmate workers from displacing non-inmate workers. These provisions appear to support Cartrette's argument for overtime pay. Failure of the Department's contracts with PIP sponsors to provide inmate workers with time-and-a-half pay for overtime hours when their non-inmate counterparts receive it would create an impermissible and unfair advantage for inmate labor over private labor. Moreover, any failure on the Department's behalf to pay inmates time-and-a-half overtime pay when non-inmate workers receive it for comparable work in the same area contradicts the Department's obligation under section 24-3-315.[6] Consequently, the circuit court erred in denying Cartrette *647 time-and-a-half pay for overtime work without first determining whether non-inmate workers performing the same work in the same locality receive time-and-a-half pay for overtime.[7]
In addition, we observe section 24-3-430(D) requires inmates receive the "prevailing wage" paid to their non-inmate peers for comparable work. However, the question of the prevailing wage to which Cartrette is entitled has been remanded to the ALC for further proceedings. We nonetheless have jurisdiction to consider whether the prevailing wage language of section 24-3-430(D) entitles Cartrette to overtime pay because the issue remanded concerned the proper hourly *648 rate, only. However, because we have found section 24-3-315 resolves Cartrette's dispute, we need not address this argument. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding appellate court need not discuss remaining issues when decision on prior issue disposes of appeal).
For the foregoing reasons, we reverse the circuit court's decision concerning overtime pay and remand this issue to the ALC for a determination of whether the Department failed to pay Cartrette at the time-and-a-half rate for the hours he worked in excess of forty per week. In the event of such a failure, we instruct the ALC to determine the rate of compensation to which Cartrette was entitled, the number of overtime hours that were underpaid, and the amount the Department owes Cartrette for his labor.
II. Remaining Issues
With regard to Cartrette's remaining issues, we affirm based upon the following authorities:
1. As to the circuit court's remand to the ALC for determination of the prevailing wage: Condor, Inc. v. Bd. of Zoning Appeals, City of N. Charleston, 328 S.C. 173, 178, 493 S.E.2d 342, 344 (1997) (preventing an appellant from arguing on appeal an issue conceded in the trial court); Bowman v. Bowman, 357 S.C. 146, 160, 591 S.E.2d 654, 661 (Ct.App.2004) (holding a party cannot seek and receive a particular result at trial and then challenge it on appeal).
2. As to whether Cartrette was an employee of the private sponsor: S.C.Code Ann. § 24-3-40(A) (2007) ("Unless otherwise provided by law, the employer of a prisoner authorized to work . . . in a prison industry program provided under Article 3 of this chapter shall pay the prisoner's wages directly to the Department of Corrections."); Williams v. S.C. Dep't of Corr., 372 S.C. 255, 258-59, 641 S.E.2d 885, 887 (2007) (holding a prison industries program sponsor is not an employer of inmates because the sponsor does not exclusively control the payment of inmate wages and finding agreement among other jurisdictions that examined this issue).
3. As to whether Cartrette is entitled to reimbursement of monies deducted from his pay for room and board because he *649 was double-billed for this cost: Rule 210(h), SCACR (limiting appellate review to facts appearing in the record on appeal); State v. Mitchell, 330 S.C. 189, 199, 498 S.E.2d 642, 647 (1998) (placing on appellant the burden of presenting a sufficient record to allow appellate review).
4. As to whether Cartrette is entitled to reimbursement of monies deducted from his pay for room and board because the deduction was unconstitutional: S.C. Const. art. XII, § 2 ("The General Assembly shall establish institutions for the confinement of all persons convicted of such crimes as may be designated by law, and shall provide for the custody, maintenance, health, welfare, education, and rehabilitation of the inmates."); S.C.Code Ann. § 24-3-40 (2007) (allocating portions of inmates' wages for restitution, the State Office of Victim Assistance, child support, room and board, and inmate use); Brown v. S.C. Dep't of Health & Envtl. Control, 348 S.C. 507, 515, 560 S.E.2d 410, 414 (2002) ("An appellate court cannot construe a statute without regard to its plain meaning and may not resort to a forced interpretation in an attempt to expand or limit the scope of a statute.").
5. As to whether Cartrette is entitled to reimbursement of monies deducted from his pay for victim's assistance because inmate wages are outside the funds available for appropriations by the General Assembly: S.C.Code Ann. § 24-3-40 (2007) (allocating portions of inmates' wages for restitution, the State Office of Victim Assistance, child support, room and board, and inmate use); S.C.Code Ann. § 16-3-1260 (2003) (requiring persons convicted of criminal acts to reimburse the State and directing such payments to be made from inmate wages to the State Office of Victim Assistance); S.C.Code Ann. § 16-3-1290 (2003) (establishing Victim's Compensation Fund from which State Office of Victim Assistance may pay victims' claims).
CONCLUSION
We find sections 24-3-315 and 24-3-430(D) entitle inmate workers in a PIP to pay and working conditions comparable to those enjoyed by workers in private industry, including time-and-a-half pay for overtime hours worked. Accordingly, we reverse the circuit court's decision on this issue and remand to *650 the ALC for additional proceedings consistent with this opinion. For the foregoing reasons, we affirm the circuit court's decision on the remaining issues.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
GEATHERS, J., concurs.
PIEPER, J., concurring in part and dissenting in part.
I concur in the majority's conclusion to affirm the decision to remand to determine a prevailing wage. I also concur in the determination that the inmate is not an employee of the private sponsor or entitled to reimbursement for room and board and other costs. However, I respectfully dissent as to any finding that the inmate is entitled to overtime pay. Section 24-3-430 establishes an inmate's right to the prevailing wage, stating "[n]o inmate participating in the program may earn less than the prevailing wage for work of similar nature in the private sector." S.C.Code Ann. § 24-3-430(D) (2007). Our supreme court recognizes that a critical purpose of the prevailing wage provision is to prevent unfair competition. Adkins v. S.C. Dep't of Corr., 360 S.C. 413, 418, 602 S.E.2d 51, 54 (2004). Nonetheless, I would distinguish between prevailing wages and any right to overtime pay for inmates participating in a prison industries program. In fact, there is no authority within the applicable state statutory scheme recognizing any right to overtime pay for inmates.[8]See § 24-3-430(D) (2007) (stating only that no inmate participating in the program may earn less than the prevailing wage). Moreover, the inmate never specifically raised the *651 issue of whether a particular federal program provides for the right to overtime pay.
While the Fair Labor Standards Act (FLSA) provides a right to overtime pay for certain employees, the protections of the act do not apply to inmates working within the prison setting. See Harker v. State Use Indus., 990 F.2d 131, 136 (4th Cir.1993) ("For more than fifty years, Congress has operated on the assumption that the FLSA does not apply to inmate labor. If the FLSA's coverage is to extend within prison walls, Congress must say so, not the courts."). As noted by the Fourth Circuit in Harker, inmates participating in these types of programs perform work not to "turn profits for their supposed employer, but rather as a means of rehabilitation and job training." Id. at 133.
In sum, I am not convinced the current statutory scheme provides for overtime pay to inmates. Inmates are not employees entitled to the protections of the FLSA, and I do not find it appropriate to read into the prevailing wage statute any such right to inmates voluntarily participating in a prison industries program.[9] As Judge Posner of the Seventh Circuit has explained:
People are not imprisoned for the purpose of enabling them to earn a living. The prison pays for their keep. If it puts them to work, it is to offset some of the cost of keeping them, or to keep them out of mischief, or to ease their transition to the world outside, or to equip them with skills and habits that will make them less likely to return to crime outside. None of these goals is compatible with federal regulation of their wages and hours. The reason the FLSA contains no express exception for prisoners is probably that the idea was too outlandish to occur to anyone when the legislation was under consideration by Congress.
Bennett v. Frank, 395 F.3d 409, 410 (7th Cir.2005). Accordingly, I concur in the decision of the majority to affirm the circuit court and remand to the ALC to determine a prevailing *652 wage; however, I respectfully dissent as to the overtime issue, and I would affirm the finding of the ALC and the circuit court that the inmate is not entitled to overtime pay.
NOTES
[1] This appeal is being considered alongside S.C. Dep't of Corr. v. George Lee Tomlin, 387 S.C. 652, 694 S.E.2d 25 (App.2010). The material facts, substantive arguments, and procedural postures of these two appeals are identical.
[2] We decide this case without oral argument pursuant to Rule 215, SCACR.
[3] See S.C.Code Ann. § 16-3-1290 (2003) (establishing Victim's Compensation Fund from which State Office of Victim Assistance may pay victims' claims); S.C.Code Ann. § 16-3-1260 (2003) (requiring persons convicted of criminal acts to reimburse the State and directing such payments to be made from inmate wages to the State Office of Victim Assistance).
[4] We specifically reject Cartrette's contention that Hamilton v. Daniel Int'l Corp., 273 S.C. 409, 257 S.E.2d 157 (1979), established his right to time-and-a-half pay for overtime work. Although the Hamilton court cited to statutory language similar to that found in section 24-3-315, it did not contemplate overtime work. Id. at 410, 257 S.E.2d at 158. The issue in that case concerned the right of an inmate participating in a work-release program to benefits under the Worker's Compensation Act. Id. at 410-11, 257 S.E.2d at 158.
[5] While the Department argues our opinion impacts three of its PIPs, this opinion is limited solely to the program in which Cartrette was involved and that was promulgated and operated pursuant to sections 24-3-315 and 24-3-430.
[6] In its petition for rehearing, the Department declares the majority's analysis of section 24-3-430's provision of a prevailing wage for inmate labor "obviously overlooked the explicit intent of our General Assembly" regarding inmate labor. The Department cites section 24-3-310 of the South Carolina Code (2007), which indicates the purposes of inmate labor include self-maintenance, reimbursement of the State, restitution, and child support. In our opinion, these purposes harmonize with the General Assembly's mandate that inmate labor not unfairly compete with non-inmate labor. See §§ 24-3-315 & -430(E); see also Adkins, 360 S.C. at 418, 602 S.E.2d at 54 (finding the overall purpose of these statutes "is to prevent unfair competition"). By statute, seventy percent or more of each inmate worker's pay is diverted for restitution, victim's programs, child support, room and board, or taxes. S.C.Code Ann. § 24-3-40 (2007). Increased pay, including overtime pay, for inmate workers ultimately benefits the Department by increasing the funds available to relieve the burden of inmate housing and care; benefits crime victims, both directly through fulfillment of inmates' restitution obligations and indirectly by funding state agencies that provide victim assistance; and benefits inmates' minor children by increasing the amount available for child support. We believe that in crafting these statutes, our General Assembly carefully balanced its desire to maximize inmates' financial contributions against the need to ensure inmate workers do not supplant non-inmate workers in the labor force.
[7] We note with some consternation that despite its persistent arguments against paying Cartrette time-and-a-half for overtime under Cartrette's theories of entitlement, the Department admits in its petition for rehearing that applicable federal regulations "required [the Department] to pay Cartrette time-and-a-half for his overtime labor." (emphasis supplied) Furthermore, despite the fact the record in this case appears to reflect a failure to pay overtime at the time-and-a-half rate, the Department repeatedly asserts for the first time in its petition for rehearing that it did pay Cartrette time-and-a-half overtime pay for his work on Kwalu projects "on numerous and diverse occasions." We are troubled that these assertions, which might have led to a speedy disposition of this issue before the ALC, escaped counsel's attention for so long.
[8] Although not within the applicable statutory scheme, section 8-11-55 of the South Carolina Code mentions overtime in the context of state employees. That statute only applies to state employees and provides that "[a]ny state employee who is required to work overtime during any particular week may, as a result, be given compensatory time. . . ." S.C.Code Ann. § 8-11-55 (Supp.2009). The statute further provides that any compensatory time granted must be in accordance with the FLSA. As indicated, the FLSA does not apply to inmates and the prevailing wage statute at issue specifically states that inmates participating in the prison industries program are not considered employees of the state. See S.C.Code Ann. § 24-3-430(F) (2007).
[9] An inmate's participation in the prison industries program is voluntary and contingent upon consent to the conditions of the employment. S.C.Code Ann. § 24-3-430(C) (2007) ("An inmate may participate in the program established pursuant to this section only on a voluntary basis and only after he has been informed of the conditions of his employment.") (emphasis added). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316105/ | 513 S.E.2d 10 (1999)
237 Ga. App. 145
BROWN et al.
v.
BREWER et al.
No. A98A1771.
Court of Appeals of Georgia.
February 11, 1999.
Reconsideration Denied March 19, 1999.
Certiorari Denied June 3, 1999.
Stephen W. Irving, Atlanta, for appellants.
Chambers, Mabry, McClelland & Brooks, Lawrence J. Hogan, Edwin L. Hamilton, Atlanta, Stephanie V. Kandzierski, Duluth, for appellees.
*11 POPE, Presiding Judge.
Mary and Douglas Brown, individually and as guardians of their minor children Jason and Nicholas, appeal the trial court's order granting summary judgment to defendants Paul Brewer and Pamela Freeburn. Because no material issue of fact remains for jury resolution, summary judgment was proper. We therefore affirm.
"To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56(c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case." (Emphasis omitted.) Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). Our review is de novo. Bandy v. Mills, 216 Ga.App. 407, 454 S.E.2d 610 (1995).
Walker v. Virtual Packaging, 229 Ga.App. 124, 493 S.E.2d 551 (1997).
The relevant undisputed facts of this case are as follows: On February 18, 1996, a car driven by Paul Brewer crashed into the Browns' home. Brewer claims the car rolled into the house after he got out of the car to check on a dog that darted into the street and hit him. The Browns point to physical evidence that suggests that Brewer was behind the wheel when the car hit the house. Brewer, an alcoholic, was admittedly very intoxicated at the time. Brewer's car struck the front of the Brown residence and plowed into an unoccupied room. Neither the car nor any of the flying debris made physical contact with any member of the Brown family. The Browns were neither directly nor indirectly physically injured as a result of the accident. Nothing in the record suggests that Brewer had any personal animosity toward the Browns or that he intended to drive the car into their home.
The Browns sued Brewer and Freeburn to recover for their "psychic trauma, freight [sic], grave mental suffering, emotional distress and harm to their peace, happiness, and emotional stability." The Browns claimed a right to recover for mental suffering under several theories, including negligent and intentional infliction of emotional distress. The property damage claim to the home was resolved separately and was not an issue in the suit. The Browns alleged that Freeburn, Brewer's daughter and the owner of the car he was driving, was vicariously liable under the family purpose doctrine.
1. In their first and second enumerations of error, the Browns contend the grant of summary judgment to Paul Brewer[1] was error because a jury could characterize Brewer's conduct as wilful and wanton, and not merely negligent.[2] Thus, they argue, his conduct could give rise to a claim for intentional infliction of emotional distress even though the Browns experienced no physical impact or injury.
In a claim concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury. OB-GYN Assoc. v. Littleton, 259 Ga. 663, 386 S.E.2d 146 (1989). On the other hand, where the conduct is malicious, wilful or wanton, recovery can be had without the necessity of an impact. Westview Cemetery v. Blanchard, 234 Ga. 540, 216 S.E.2d 776 (1975).
Ryckeley v. Callaway, 261 Ga. 828, 412 S.E.2d 826 (1992). However, "[e]ven malicious, wilful or wanton conduct will not warrant a recovery for the infliction of emotional distress if the conduct was not directed toward the plaintiff." Id. at 829, 412 S.E.2d 826. Pretermitting whether Brewer's conduct could be characterized as malicious, wilful, *12 or wanton, there was no evidence in this case suggesting that his conduct was directed at the Browns. Absent evidence to support such a finding, the trial court was correct in granting summary judgment on the intentional infliction of emotional distress claim. Id. at 829-830, 412 S.E.2d 826.
2. In their third enumeration of error, the Browns argue that summary judgment was inappropriate because Brewer failed to refute their claim for special damages. Of course, in this case, it was not necessary to refute the damages claim to prevail at summary judgment. A moving party may demonstrate an entitlement to summary judgment by showing the court that the evidence in the record reveals
that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff's claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial.
(Emphasis supplied.) Lau's Corp. v. Haskins, supra.. For the reasons set forth in Division 1 above, the Browns' claim for intentional infliction of emotional distress fails. Further, the Browns did not challenge the court's grant of summary judgment as to their remaining claims. Thus, any remaining disputed issues of fact with regard to these claims are immaterial.
3. In their final enumeration of error, the Browns claim the trial court erred in denying their motion to compel discovery. Specifically, the Browns contend the trial court (a) should have compelled discovery of the identity of Brewer's Alcoholics Anonymous sponsor, a person with whom Brewer discussed the accident shortly after it occurred, and (2) should have compelled discovery of any written or oral statements Pamela Freeburn gave her insurer. The Browns argued in their motion to compel that the information they sought would establish that Brewer drove into the Browns' house while drunk, rather than simply allowing the car to get away from him and roll into the Browns' home.
In its March 13, 1997 order, the trial court directed Brewer to provide for an in camera inspection the name of his AA sponsor, along with a statement from him, to be held "in the event of any material contradiction between the content of the statement and the testimony at trial of defendant Paul Brewer." The court also directed Freeburn's insurer to provide the court her statements and ordered that they be held until trial and published in the event Freeburn's testimony differed from that given her insurer. In their appellate brief, the Browns argue that the information they sought was important to establish that Brewer passed out at the wheel "and, indeed, actually drove the vehicle through the property and into the home of the appellants."
"A trial court's decision on a discovery matter will not be disturbed unless a clear abuse of discretion is shown." Gazelah v. Rome Gen. Practice, P.C., 232 Ga.App. 343, 345(4), 502 S.E.2d 251 (1998). Also, to prevail on appeal, the Browns must show that the alleged error was harmful. Gantt v. Bennett, 231 Ga.App. 238, 242(3), 499 S.E.2d 75 (1998).
In this case, the trial court agreed to make the requested discovery available if it contradicted Brewer's account of how the accident occurred. Moreover, even if the requested discovery showed that the accident occurred the way the Browns claimed, it would not have raised a material issue of fact for purposes of summary judgment. See Ryckeley v. Callaway, 261 Ga. at 829-830, 412 S.E.2d 826. Because the Browns have not shown how they were harmed by the trial court's decision, we find this enumeration of error to be without merit.
Judgment affirmed.
BEASLEY, P.J., and RUFFIN, J., concur.
NOTES
[1] The Browns do not contest the grant of summary judgment to Pamela Freeburn.
[2] The Browns do not challenge the grant of summary judgment as to their claims of negligent infliction of emotional distress, invasion of privacy, or trespass. Although the court did not specifically address these claims in its final order, the Browns acknowledged in their brief that the court's order was final and that summary judgment was granted as to the entire complaint. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316113/ | 996 P.2d 419 (1999)
128 N.M. 629
2000-NMSC-006
In the Matter of the TERMINATION OF Dwayne KIBBE, a certified tenured teacher in the Elida School District.
Dwayne Kibbe, Plaintiff-Appellant,
v.
Elida School District, Defendant-Appellee.
No. 24,858.
Supreme Court of New Mexico.
December 23, 1999.
Rehearing Denied March 14, 2000.
Doerr & Knudson, P.A., Randy Knudson, Portales, for Appellant.
Simons, Cuddy & Friedman, L.L.P., John F. Kennedy, Michele Marks, Santa Fe, for Appellee.
OPINION
SERNA, Justice.
{1} Dwayne Kibbe, a certified school teacher, appeals his termination from the Elida Public Schools. Kibbe contends that his termination violated provisions of the Criminal Offender Employment Act (COEA), NMSA 1978, §§ 28-2-1 to -6 (1974, as amended through 1985, prior to 1997 amendment); alternatively, Kibbe contends that his termination is not supported by substantial evidence and is arbitrary and capricious. We agree with Kibbe that there is not substantial evidence in the record to support his termination. Because we reverse the independent arbitrator's decision upholding the local school board's termination of Kibbe on this ground, we do not reach Kibbe's arguments concerning the COEA.
I. Facts
{2} The Elida school board terminated Kibbe at the close of the 1995-1996 school year. At the time of his termination, Kibbe had been a certified school teacher for approximately twenty years. He had been employed with the Elida Public Schools as both a teacher and a coach for four years. During the 1995-1996 school year, Kibbe taught four classes, seventh-grade New Mexico history, eighth-grade U.S. history, and two classes of physical education. Kibbe also taught the driving portion of driver's education and served as the head basketball coach for the *420 Elida Public Schools. Kibbe had not previously taught driver's education.
{3} On April 13, 1996, Kibbe was arrested in Portales, New Mexico, which is approximately twenty miles from Elida, for driving while intoxicated (DWI). During the booking process at the police station, Kibbe, when told to empty his pockets, threw his change on the ground, striking a police officer in the leg. The officer told Kibbe to cooperate, and Kibbe then attempted to push his way past the officer but did not strike him. Kibbe was subsequently restrained by several officers. Following the incident, Kibbe was charged with three misdemeanor offenses: DWI, see NMSA 1978, § 66-8-102 (1994, prior to 1997 & 1999 amendments), resisting or obstructing an officer, see NMSA 1978, § 30-22-1(A) (1981), and battery, see NMSA 1978, § 30-3-4 (1963).
{4} The Elida school board notified Kibbe of the termination of his employment with Elida Public Schools on April 26, 1996, and pursuant to statute, NMSA 1978, § 22-10-14(C) (1994), Kibbe requested a written statement of the reasons for his termination. On May 8, 1996, the school board provided the following reasons for Kibbe's termination:
1. You have severely compromised your ability to be an effective teacher, coach and employee by being arrested and charged with driving under the influence of alcohol or drugs, resisting or obstructing an officer and battery, especially in your capacity as the driver's education instructor.
2. You have compromised your effectiveness as a teacher, coach and employee by the public scandal involving your behavior as set forth in the criminal complaint filed by Officer Preston Wilkerson of the Portales City Police and witnessed by Officer Gabe Chavez of the E.N.M.U. Police Department.
Kibbe challenged his termination, and after a hearing, the school board upheld the termination by a three-to-two vote. Kibbe then sought review of the school board's decision from an independent arbitrator. See NMSA 1978,§ 22-10-14.1(A) (1994).
{5} A number of witnesses testified before the independent arbitrator. Officer Chavez testified that he observed Kibbe driving his vehicle and that he called Officer Wilkerson for assistance after he witnessed Kibbe jump a curb and drive away at a high rate of speed. Officer Wilkerson testified that Kibbe was driving thirty-nine miles per hour in a thirty mile-per-hour zone. After pulling Kibbe over, Officer Wilkerson smelled alcohol and noticed that Kibbe's eyes were bloodshot and his speech was slurred. Kibbe refused to cooperate with field sobriety tests, refused to take a breath alcohol test, and told Wilkerson, "I'm drunk, and you know it." Officer Wilkerson arrested Kibbe for DWI and transported him back to the police station, where Kibbe became agitated and belligerent.
{6} Sergeant Fred Hamner testified about Kibbe's behavior at the police station. He stated that Kibbe's change hit his leg when Kibbe threw it to the ground and that Kibbe had tried to push past him. However, he testified that Kibbe did not strike him or cause serious harm. As a result, Sergeant Hamner felt that the incident did not warrant anything more than petty misdemeanor charges. Compare NMSA 1978, § 30-22-24(B) (1971) (providing that battery upon a peace officer is a fourth degree felony), with § 30-3-4 (providing that battery is a petty misdemeanor).
{7} Claude Cody, Superintendent of Elida Public Schools, also testified before the independent arbitrator. Cody testified that Elida is a small rural community with about 130 students attending Elida Public Schools. Cody stated on cross-examination that Kibbe is a very good coach and that he did a good job at Elida. He also stated that he had evaluated Kibbe's job performance as commendable on each of the four evaluations he had conducted as superintendent. Of those four evaluations, Kibbe was marked down on only one occasion, for tobacco use on school grounds. Cody testified that Kibbe's termination "ha[d] nothing to do with his ability as a coach or as a teacher in the school setting." According to Cody, almost everyone in the community was aware of Kibbe's arrest for DWI, and the majority of people were against rehiring Kibbe. He stated that Elida Public Schools could not have employees exhibiting *421 the type of behavior that Kibbe had exhibited on the night he was arrested. He asserted that being a good role model is integral to both teaching and coaching. Cody testified that he believed that the school board had just cause to terminate Kibbe.
{8} Cody also testified about another DWI incident involving a teacher from the Elida Public Schools. The parties stipulated that an Elida teacher was convicted of DWI in 1980 and that she had not been terminated from employment as a teacher. Cody testified that the teacher, who was also a substitute bus driver at the time, had three beers at a party and was stopped by a police officer while driving home. She refused to undergo field sobriety tests because, according to Cody, she had a medical condition that affected her balance; instead, she chose to plead guilty to a charge of DWI. Cody stated that the DWI conviction was referenced in the teacher's next evaluation as a "driving incident," was characterized as having been resolved, and was never placed on the teacher's permanent record. Cody confirmed that the Elida school board took no disciplinary action against the teacher. This teacher is now a head teacher at the Elida elementary school.
{9} Following the school board's presentation of evidence, Kibbe testified before the independent arbitrator. He stated that he was sorry for his actions on the night of the arrest. He testified that he had not had any alcohol since that night and that he was attending Alcoholic's Anonymous. Kibbe also explained that as a coach he taught his players to maintain a high level of fitness and instructed them not to use alcohol or drugs. He testified that he punished players for using alcohol but that he always helped the players overcome their problem and gave them a second chance. Kibbe testified that with this approach he was never forced by a repeat incident to remove a player from the team. When asked what kind of example he thought his behavior set for students, Kibbe responded that he had spoken to each of his players and many of his students and that he used his arrest as a teaching tool to convey the message that leadership is not infallible. Finally, Kibbe stated that he coached the Elida basketball team in twenty games at an independent summer basketball camp following the arrest.
{10} Pursuant to statute, the independent arbitrator conducts a de novo review of the school board's termination decision. Section 22-10-14.1(D). Specifically, the independent arbitrator assesses "whether there was just cause for the decision of the local school board ... to terminate the employee." Id. The Legislature has defined "just cause" in this context as "a reason that is rationally related to an employee's competence or turpitude or the proper performance of [the employee's] duties and that is not in violation of the employee's civil or constitutional rights." NMSA 1978, § 22-10-2(F) (1994). Before the independent arbitrator, the Elida school board bears the burden to "prove by a preponderance of the evidence that, at the time the notice of termination was served on the employee, the local school board ... had just cause to terminate the employee." Section 22-10-14.1(J). Following the presentation of evidence, the independent arbitrator affirmed the school board's decision to terminate Kibbe.
II. Procedural History and Standard of Review
{11} Although the Legislature has provided that the independent arbitrator's decision is "binding on both parties and shall be final and nonappealable except where the decision was procured by corruption, fraud, deception or collusion," Section 22-10-14.1(P), Kibbe sought review of the independent arbitrator's decision by writ of certiorari in the district court. See Rainaldi v. Public Employees Retirement Bd., 115 N.M. 650, 654, 857 P.2d 761, 765 (1993) ("A writ of certiorari ... lies when it is shown that an inferior court or tribunal has exceeded its jurisdiction or has proceeded illegally, and no appeal or other mode of review is allowed or provided."); Rule 1-075(A) NMRA 1999 (governing review by the district court of "any state or local government administrative or quasi-judicial entity" by writ of certiorari "pursuant to the New Mexico Constitution when there is no statutory right to an appeal or other statutory right of review"); cf. Roberson v. *422 Board of Educ., 78 N.M. 297, 299-300, 430 P.2d 868, 870-71 (1967) (stating that, due to the lack of statutory provision for appeal from the New Mexico State Board of Education, "the only remedy available for reviewing the actions of the State Board [affirming a local school board's discharge of a teacher] was certiorari"). In reviewing the constitutionality of a similar statute, this Court recognized that "due process, together with separation of powers considerations, requires that parties to statutorily mandated arbitration be offered meaningful review of the arbitrator's decision." Board of Educ. v. Harrell, 118 N.M. 470, 485, 882 P.2d 511, 526 (1994).
{12} Under Rule 1-075(Q),
[t]he district court may enter an order reversing the decision of the agency if it finds that:
(1) the agency acted fraudulently, arbitrarily or capriciously;
(2) based upon the whole record on review, the decision of the agency is not supported by substantial evidence;
(3) the action of the agency was outside the scope of authority of the agency; or
(4) the action of the agency was otherwise not in accordance with law.
Accord Harrell, 118 N.M. at 485, 882 P.2d at 526. Applying this standard, the district court affirmed the decision of the independent arbitrator.
{13} Kibbe appealed the district court's order to the Court of Appeals, see Rule 1-075(T), and the Court of Appeals, determining that the issue of a school board's termination of a teacher's employment for DWI and the potential impact of the COEA on that termination constitutes a matter of substantial public interest, certified the case to this Court. See NMSA 1978, § 34-5-14(C)(2) (1972). On appeal, we review the decision of the independent arbitrator under the same standard applicable in the district court. See Conwell v. City of Albuquerque, 97 N.M. 136, 138, 637 P.2d 567, 569 (1981). Thus, we must examine whether the independent arbitrator's decision that the Elida school board had just cause to terminate Kibbe is arbitrary or capricious, not supported by substantial evidence in the record as a whole, or otherwise not in accordance with law.
III. Evidence of Just Cause for Termination
{14} We begin our analysis of the independent arbitrator's decision with the plain language of the statute. See Whitely v. New Mexico State Personnel Bd., 115 N.M. 308, 311, 850 P.2d 1011, 1014 (1993) (stating that "the plain language of the statute [is] the primary indicator of legislative intent"). "`[J]ust cause' means a reason that is rationally related to an employee's competence or turpitude or the proper performance of [the employee's] duties and that is not in violation of the employee's civil or constitutional rights." Section 22-10-2(F). The school board introduced substantial evidence that Kibbe drove while under the influence of alcohol and that he did not cooperate with police officers. However, there is no evidence in the record that these actions, standing alone, have any relationship whatsoever to Kibbe's competence as a teacher and a coach. To the contrary, Superintendent Cody testified that the termination had nothing to do with Kibbe's ability to teach and coach. We also conclude that these actions do not involve moral turpitude. See, e.g., Finley v. State, 661 So. 2d 762, 765 (Ala.Crim.App.1995) (stating that resisting a police officer, assault in the third degree, and driving under the influence "are not crimes of moral turpitude"); Hall v. Hall, 261 Ga. 188, 402 S.E.2d 726, 727 (1991) ("[A] misdemeanor conviction for DUI is not a crime of moral turpitude."); Lopez v. State, 990 S.W.2d 770, 778 (Tex.App.1999, no pet.) ("A misdemeanor driving while intoxicated conviction is not an offense involving moral turpitude."); cf. State v. Lara, 109 N.M. 294, 298, 784 P.2d 1037, 1041 (Ct.App.1989) (upholding a trial court's determination that the crime of allowing oneself to be served alcohol as a minor was not an offense involving moral turpitude).
{15} The school board, in its written reasons for termination, stated that the "public scandal" caused by Kibbe's arrest "compromised [his] effectiveness as a teacher, coach *423 and employee." Before the independent arbitrator, however, the only evidence of any public scandal came from Superintendent Cody. According to Cody, almost the entire community of Elida was aware of Kibbe's arrest, and from Cody's interaction with community members, he believed that a majority of community members opposed rehiring Kibbe. Kibbe testified that each member of the community to whom he spoke had voiced support for him. Based on the record as a whole, we are unable to conclude that the school board introduced substantial evidence that a public scandal, if one existed, would have interfered with the proper performance of Kibbe's duties as a teacher and a coach in the Elida Public Schools. Pursuant to Section 22-10-14.1(J), it was incumbent upon the school board to demonstrate by a preponderance of evidence that Kibbe's actions were rationally related to his competence as an employee or to the proper performance of his duties. In this case, the school board did not present evidence that Kibbe's arrest actually affected his ability to teach effectively or to serve as a proper role model for students; instead, the school board relied on Superintendent Cody's testimony about community sentiment and the importance of a teacher and coach providing a good example for students. Because Cody merely surmised that Kibbe's job performance would be impeded by the DWI incident, however, we believe that this testimony is of limited value in assessing the relevant factor under the statute: whether the DWI incident had an actual effect on Kibbe's ability to properly perform his duties. Looking at the record as a whole, Kibbe's testimony that he spoke to his students and players about the incident, that he used the incident as a teaching device, and that he coached the Elida basketball team during the summer serves as the only relevant evidence relating to Kibbe's ability to interact with students and players following his arrest. In light of this testimony and the absence of any relevant evidence to the contrary from the school board, we believe that there is no evidence "that a reasonable mind would regard as adequate to support [the] conclusion" that Kibbe's actions prevented the proper performance of his required teaching and coaching duties. Fitzhugh v. New Mexico Dep't of Labor, 1996-NMSC-044, ¶ 24, 122 N.M. 173, 922 P.2d 555 (defining substantial evidence).
{16} With respect to Kibbe's position as a driver's education instructor, Cody testified that teaching driver's education was not a condition of Kibbe's employment. Additionally, Kibbe testified that he had not previously taught driver's education, that he was merely assisting the school by filling a position that had recently become vacant, and that he had not yet completed the necessary training to receive the mandatory certification that would have been required of him in order to serve as a driver's education instructor the following school year. Under these circumstances, while it may have been prudent to remove Kibbe from teaching the driving portion of driver's education, we believe that the school board failed to introduce substantial evidence that Kibbe's actions were rationally related to his competence in performing his required duties as a history and physical education teacher and as a coach.
{17} We believe the prior DWI incident involving another Elida teacher further supports our conclusion that the school board's termination of Kibbe must be reversed. While a school board's decision not to impose disciplinary action against an employee for certain conduct does not foreclose disciplinary action against a different employee in the future for similar conduct, the record in this case is devoid of any meaningful distinction between Kibbe's conduct and that of the other Elida school teacher. In other words, the school board introduced no evidence suggesting that Kibbe's conduct, in contrast to that of the other teacher, affected his ability to teach and coach in Elida schools. Further, Superintendent Cody ruled out the possibility that a distinction could be made based on a change in community and student attitudes toward DWI or the increased seriousness of the offense at the present time as compared to 1980. Cody testified that under no circumstances would he have recommended terminating the other Elida teacher for her behavior, even if it had occurred at the present time. From this testimony, as well as the vast difference in the treatment of the two teachers, from no disciplinary action whatsoever for the incident in 1980 to the extreme sanction of terminating Kibbe's employment, we conclude that the school *424 board's decision to terminate Kibbe for this incident was arbitrary and capricious. Cf. New Mexico State Bd. of Educ. v. Stoudt, 91 N.M. 183, 186-87, 571 P.2d 1186, 1189-90 (1977) (concluding that the State Board of Education's decision to terminate a pregnant, unmarried teacher for immoral conduct "was arbitrary, unreasonable and not supported by substantial evidence" based in part on the fact that the local school board had retained five unwed mothers and had taken no action against them).
{18} We reverse Kibbe's termination on the basis that the school board's decision is not supported by substantial evidence in the record as a whole and was arbitrary and capricious. Because we reverse Kibbe's termination on this ground, it is unnecessary for us to address Kibbe's argument that it would be anomalous to permit a teacher's termination prior to a conviction based on alleged crimes that would not subject a teacher to termination under the COEA after conviction. See NMSA 1978, § 28-2-4(A) (1985, prior to 1997 amendment) (providing that a board or agency may refuse to renew public employment if, among other things, the employee "has been convicted of a felony or a misdemeanor involving moral turpitude" and either the conviction "directly relates to the particular employment" or the employee "has not been sufficiently rehabilitated to warrant the public trust"); see also NMSA 1978, § 28-2-3(B) (1974) (providing that criminal records of misdemeanor convictions not involving moral turpitude shall not be used in connection with an application for public employment). We do, however, take note of the Legislature's expression of a public policy in the area of public employment which favors rehabilitation for crimes not directly relating to employment. See NMSA 1978, §§ 28-2-2 (1974) (stating that barriers to public employment for criminal offenders "should be removed to make rehabilitation feasible"), -4(A)(2).
IV. Conclusion
{19} Reviewing the record as a whole, we believe that the independent arbitrator's decision that the school board proved by a preponderance of evidence that Kibbe's conduct was rationally related to his competence or turpitude or the proper performance of his duties is not supported by substantial evidence. While we do not question Superintendent Cody's testimony that acting as a good role model is an integral part of teaching, the school board failed to introduce any evidence suggesting that Kibbe's DWI incident had any relationship to his competence as an employee or to the proper performance of his duties, as required by the relevant statutes. We also conclude that the drastic difference in the school board's treatment of Kibbe compared to another Elida teacher for substantially similar conduct with no explanatory evidence in the record renders Kibbe's termination arbitrary and capricious. We therefore reverse the independent arbitrator's decision. Pursuant to Section 22-10-14.1(N), we order that Kibbe shall be reinstated to his former position as a teacher and coach in the Elida School District, and we further order that Kibbe shall be "reimburse[d] for compensation during the entire period for which compensation was terminated... less an offset for any compensation received by [Kibbe] during the period the compensation was terminated."
{20} IT IS SO ORDERED.
MINZNER, C.J., and BACA, FRANCHINI, and MAES, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260831/ | 121 N.H. 262 (1981)
THE TOWN OF BEDFORD
v.
ROBERT H. BROOKS & a.
No. 80-266.
Supreme Court of New Hampshire.
April 3, 1981.
*263 Sheehan, Phinney, Bass & Green P.A., of Manchester (James E. Higgins on the brief and orally), for the plaintiff.
McLane, Graf, Raulerson & Middleton P.A., of Manchester (Linda Connell & a. on the brief and Ms. Connell orally), for the defendant.
KING, J.
The plaintiff appeals from an order of the superior court modifying a consent decree entered into by the parties. The plaintiff asserts that it was error for the court to grant a modification of the decree without holding an evidentiary hearing as requested. The plaintiff also asserts that it was error for the trial court to grant a modification of the decree on the basis of changed circumstances. For proceedings consistent with this opinion, we remand this case to the superior court.
The defendant Robert Brooks is a former selectman of the Town of Bedford and is the sole stockholder of HABS, Inc., a New Hampshire corporation engaged in the real estate brokerage business. In 1978, he constructed a building on a tract of land within the residential and agricultural district of the town. According to the zoning ordinance, businesses may be conducted from a building in this area only if the owner remains in continuous residence in the building. The defendant notified the town of his intention to reside in the new building and obtained the necessary approval to build.
Despite such stated intention, the defendant failed to establish residence in this building, however, and on March 9, 1979, the town instituted a bill in equity in the superior court for declaratory and injunctive relief. Thereafter, counsel for the parties stipulated to a permanent order that required the defendant to reside continuously in the building as long as he operated the business therefromand to stay overnight each day "except for travel, vacations and entertainment activities of a business or personal nature." The Court (Randall, J.) approved the order on May 10, 1979.
On December 18, 1979, the town filed a contempt motion for violation of the order, alleging that the defendant had failed to establish residence in the building, and sought to enjoin the defendant from conducting his real estate business from the building. Again the parties consented to an order, which the Court (Goode, J.) *264 approved on February 26, 1980. The new consent decree provided that:
"1. The Defendant Robert H. Brooks is found to be in contempt of this Court's Order of May 10, 1979.
2. The Defendants Robert H. Brooks and HABS, Inc., may not operate a real estate business at the location of HABS' offices on Route 101 in Bedford, New Hampshire unless the said Robert H. Brooks is in continuous residence at said location.
3. The Defendant Robert H. Brooks shall immediately take up continuous residence in said real estate offices; residence being defined in this Court's Order of May 10, 1979. For every day that said Robert H. Brooks shall fail to reside at said real estate offices, he shall pay the sum of Five Hundred Dollars ($500.00) a day to the Town of Bedford.
4. Defendant Robert H. Brooks shall obtain all necessary approvals and build a residential addition to said office on or before May 31, 1980. Application for a building permit for said addition shall be made on or before February 22, 1980. The failure to apply for a building permit shall not be an act of contempt provided however that in the event that said Robert H. Brooks fails to so apply for a permit, the real estate business at this location must cease on May 1, 1980. Should said addition not be completed and should said Robert H. Brooks and his wife not be moved in to occupy said addition as their sole residence in Bedford, New Hampshire, on a continuing basis on or before May 31, 1980 (residence being defined in this Court's Order of May 10, 1979), the real estate business at this location must cease on May 31, 1980 and no other sanctions shall be imposed on the Defendants, it being understood that the sanctions contained in Paragraph 3 hereof shall be applicable. The design and construction of said addition shall be solely at the discretion of Robert H. Brooks subject to the applicable ordinances and regulations of the Town of Bedford, including but not limited to Historic District Commission approval.
5. Robert H. Brooks shall pay to the Town of Bedford the sum of Fifteen Hundred Dollars ($1,500.00) forthwith."
Before February 27, 1980, the defendant obtained the necessary approvals and permits for construction of a residential addition. *265 Actual construction, however, was never begun. Neither did the defendant and his wife ever move their residence to the building. The defendant, however, did pay $1,500 to the town as required by the order.
On May 15, 1980, the defendant filed a motion to amend the order alleging that he had been refused mortgage financing for a "commercial" addition, that his wife was not a party to the litigation and had filed a petition for separate maintenance, and that she would not reside in the building. The plaintiff objected to this motion to amend on the grounds that the order was not conditioned upon the defendant's ability to obtain mortgage financing and that the defendant's wife had not filed a petition for separate maintenance even as of the date of the filing of the objection.
The Court (Pappagianis, J.) held informal conferences on May 29, 1980, and June 2, 1980. The plaintiff specifically requested an evidentiary hearing at that time. However, the court found that the defendant's wife was not bound by the consent order, granted the motion to amend, denied the plaintiff's request for an evidentiary hearing, and noted the plaintiff's exceptions to each ruling.
[1] Superior Court Rule 57 states that "[t]he [c]ourt will not hear any motion grounded upon facts, unless they are verified by affidavit, or are apparent from the record or from the papers on file in the case, or are agreed to and stated in writing signed by the parties or their attorneys. . . ." The defendant does not allege that any of the exceptions contained in Rule 57 apply to this case and we, therefore, do not address this question. The defendant argues, however, that because the practice of submitting motions on statements of counsel is well established, the plaintiff is not entitled to anything more. We disagree.
It is true, of course, that the practice of submitting motions on statements of counsel is well established in this State. Town of Gilmanton v. Champagne, 116 N.H. 507, 509, 363 A.2d 411, 412 (1976). Previously, we have upheld a trial court's disposition of a motion based upon fact even in the absence of affidavits where neither party objects to the procedure, see Wein v. Arlen's, 98 N.H. 487, 489, 103 A.2d 86, 88 (1954), or when there is no attempt to offer evidence, no claim that the court was not fully informed of the facts, or no claim that material facts are in dispute, Town of Gilmanton v. Champagne, supra at 509, 363 A.2d at 412-13. We have never held, however, that Rule 57 is a nullity.
[2] In this case, the plaintiff questioned certain allegations contained in the defendant's motion and specifically requested an evidentiary hearing to resolve these issues of material fact. Under the *266 provisions of Rule 57, the town was entitled to an order of the court requiring the defendant to file affidavits and allowing it to respond with counter-affidavits. Of course, whether to hold a full evidentiary hearing or to allow cross-examination of the defendant's affiants is within the discretion of the trial court. See Goodwin v. Blanchard, 73 N.H. 550, 551, 64 A. 22, 23 (1906). Accordingly, the case must be remanded to the superior court either for the submission of affidavits or for the taking of evidence concerning the defendant's claims.
[3, 4] The decree of February 6, 1980, is a consent decree which was entered into by competent counsel for both sides and is, therefore, binding on the parties. Eida v. Stoddard, 111 N.H. 123, 125, 276 A.2d 12, 13 (1971). A consent decree is essentially contractual in nature, and consequently, may be modified only by agreement of the parties in the absence of accident, fraud or mistake. Univ. Bldrs. Sup., Inc. v. Shaler High. Corp., 405 Pa. 259, 265, 175 A.2d 58, 61 (1961); 30A C.J.S. Equity § 682, at 859 (1965); cf. Grabowski v. Grabowski, 120 N.H. 745, 747, 422 A.2d 1040, 1042 (1980). Changed circumstances alone are generally insufficient to support modification of the decree. Clinchfield Stone Co. v. Stone, 36 Tenn. App. 252, 265, 254 S.W.2d 8, 13 (1952); 30A C.J.S. Equity § 682, at 860 (1965). One who by contract or agreement binds himself to an obligation possible to perform must perform it, and he will not be excused from performance because of unforeseen difficulties. Clinchfield Stone Co. v. Stone, supra at 266, 254 S.W.2d at 14.
The defendant based his motion to amend on his inability to obtain financing for the addition to his building and on his wife's refusal to make that building her home. These reasons appear to us to raise changed circumstances rather than accident, mistake or fraud. Nevertheless, in order that the defendant may have an opportunity to prove accident, mistake, or fraud, we remand this case to the superior court for proceedings consistent with this opinion.
Remanded.
All concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260839/ | 121 N.H. 324 (1981)
THE STATE OF NEW HAMPSHIRE
v.
DANIEL BERRY
No. 80-389.
Supreme Court of New Hampshire.
April 17, 1981.
*325 Gregory H. Smith, attorney general (Martha V. Gordon, assistant attorney general, on the brief and orally), for the State.
Cathy J. Green, of Manchester, by brief and orally, for the defendant.
KING, J.
The issue in this case is whether the results of a blood test which was taken over the defendant's objection while he was under arrest for driving while under the influence of intoxicating liquor and after grounds for a charge of negligent homicide had arisen must, by virtue of RSA 262-A:69-e (Supp. 1979), be excluded from evidence in a subsequent prosecution for negligent homicide. We hold that the admission of the blood test results is prohibited by the statute in these circumstances.
*326 An accident occurred at approximately 1:15 a. m. on October 6, 1979, involving a vehicle driven by the defendant and another vehicle in which there were three persons. The defendant was arrested for driving while under the influence of intoxicating liquor. RSA 262-A:62 (Supp. 1979). At about 2:45 a.m., in the X-ray room of the hospital to which the defendant was taken because of his injuries, the police advised the defendant of his rights under the implied consent law, RSA 262-A:69. The defendant inquired as to the condition of the other persons who had been injured in the accident. Receiving no answer, he refused to consent to a blood test.
At 3:25 a.m., after learning that one of the injured persons had died, the police again asked the defendant to submit to a blood test. The defendant, who was then passing in and out of consciousness, repeated his refusal. Shortly thereafter, the police learned that the second of the three accident victims had died. Because it appeared that the defendant might be charged with negligent homicide, the police had a doctor take a sample of the defendant's blood without his consent.
The defendant was eventually charged with negligent homicide. RSA 630:3 II. Prior to trial, he filed a motion to suppress the results of the blood test on the ground that the blood sample was taken without his consent. The Superior Court (Goode, J.) transferred the question to this court without ruling.
Under the provisions of the State's implied consent law, any person who operates a motor vehicle upon the public highways is deemed to consent to chemical or other tests of his blood, urine or breath for the purpose of determining the alcohol or controlled drug content of his blood if he is arrested for any offense arising out of acts alleged to have been committed while he was driving a motor vehicle while intoxicated. RSA 262-A:69-a. This implied consent is not irrevocable, however, because RSA 262-A:69-e (Supp. 1979) allows a person to refuse to submit to the chemical test and specifically provides that "if a person under arrest refuses. . . to submit to a chemical test ... none shall be given." (Emphasis added.) Of course, a person refusing to submit to an officer's request that he consent to a chemical test faces the possibility that the director of the division of motor vehicles will revoke his license to operate a motor vehicle. RSA 262-A:69-e (Supp. 1979); see Daneault v. Clarke, 113 N.H. 481, 484, 309 A.2d 884, 885-86 (1973).
[1] It is undisputed that the defendant expressly refused to consent to the chemical test of his blood on two separate occasions and that the police had a sample of his blood extracted and tested *327 against his will. Consequently, the only issue is whether the statutory language "none shall be given" means "none shall be given" or something else. In this State, statutory language is given its plain and common usage unless the language has a technical or otherwise peculiar meaning. Sant Bani Ashram, Inc. v. N.H. Dep't of Empl. Security, 121 N.H. 74, 77, 426 A.2d 34, 36 (1981); RSA 21:2; see State v. Linsky, 117 N.H. 866, 874, 379 A.2d 813, 818 (1977). There is nothing in the briefs of the parties, or the legislative history of the implied consent statute, to indicate that the words "none shall be given" were intended by the legislature to mean other than that no chemical test shall be administered without the accused's consent.
[2] The State's reliance upon Schmerber v. California, 384 U.S. 757 (1966), is misplaced. The warrantless taking of blood from a person under arrest without his consent is undoubtedly constitutional, and many cases have so held. None of these cases, however, dealt with a situation in which a statute plainly indicates that a blood sample shall not be taken if the subject refuses to consent. See State v. Riggins, 348 So. 2d 1209, 1211 (Fla. Dist. Ct. App. 1977), cert. dismissed, 362 So. 2d 1056 (1978).
[3] The State's assertion that the legislature could not have intended to give up the right to obtain chemical tests under the rule laid down in Schmerber or pursuant to a proper warrant is unpersuasive. Courts in other states have recognized that the legislature can confer upon individuals a statutory right to withhold consent even though there is no such constitutional right. See State v. Brean, 136 Vt. 147, 151-52, 385 A.2d 1085, 1088 (1978); State v. Stevens, 252 A.2d 48, 60 (Me. 1969). Furthermore, to substitute our understanding of what the legislature intended for the express language of the statute in this way would significantly interfere with the legislative prerogative, and we therefore will not look behind the express, unambiguous language of the statute. If the contours of criminal statutes are to be determined by the subsequent development of constitutional law, it seems superfluous to enact statutes at all.
[4] The State argues that, assuming arguendo that RSA 262-A:69-e (Supp. 1979) does prohibit the taking of a blood sample over the accused's objection, the protection afforded by that statute applies only to prosecutions under RSA 262-A:62 (Supp. 1979) and should not be extended to prosecutions for negligent homicide. The State offers no explanation, however, of why cases of negligent homicide should be treated differently from other cases. The *328 attempt to restrict the scope of RSA 262-A:69-e (Supp. 1979) in this way, with no accompanying rationale, is especially unpersuasive in light of our previous holding that the provisions of the implied consent law apply to "any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor. . . ." State v. Murgatroy, 115 N.H. 717, 719, 349 A.2d 600, 602 (1975) (emphasis in original); see RSA 262-A:69-e (Supp. 1979).
[5] Finally, we reject the State's assertion that RSA 262-A:69-e (Supp. 1979) does not require the exclusion of evidence obtained in violation of its terms. That the statute does not expressly require the exclusion of illegally obtained test results is not dispositive. The statute specifically provides that if the person's consent is not obtained, no test shall be administered. This language clearly indicates the legislative intent to preclude the State from using the results of chemical tests of a person's blood unless the person consents to the test. Had the legislature intended to allow the use of the results of chemical tests of a person's blood, it certainly would not have adopted legislation stating that no test shall be given in the absence of consent.
[6, 7] In conclusion, we note that the exclusion of evidence of chemical test taken in violation of RSA 262-A:69-e (Supp. 1979) does not preclude the State from establishing that the accused was intoxicated. RSA 262-A:69-j explicitly preserves the right of the State to prove intoxication by other competent evidence. For the reasons herein stated, and because we believe the legislature to be the proper authority to correct any perceived deficiencies in RSA 262-AS:69-e (Supp. 1979), we hold that the results of a blood test taken in violation of the statute must be excluded from evidence in this case.
Remanded.
GRIMES, C.J., and BOIS, J., dissented; the others concurred.
GRIMES, C.J., and BOIS, J., dissenting:
It is quite obvious that the sole purpose of RSA 262-A:69-e (Supp. 1979), which was first enacted in Laws 1965, 238:1, is to obtain more blood alcohol tests by inducing persons to consent to such tests. The entire thrust of the statute points to the need for consent and to the means of obtaining it.
In 1965, when the statute was first enacted, considerable doubt existed as to whether, under the fourth and fifth amendments to *329 the Constitution of the United States, the police could obtain a blood sample from an unwilling subject incident to an arrest. Schmerber v. California, 384 U.S. 757, 761 (1966), decided after the enactment of the implied consent law, held that a blood sample was not testimonial in nature and therefore not within the protection of the privilege against self-incrimination. The Supreme Court also held that the warrantless taking of blood from a person under arrest without his consent is not proscribed by the fourth amendment if there is probable cause to believe that the tests will show intoxication, if exigent circumstances exist which will excuse the obtaining of a warrant, and if the test is performed in a reasonable manner. Id. at 770-72. These conditions were satisfied in Schmerber. Thus, it became clear that the subject's consent to a test for blood alcohol was not necessary if the requirements of the fourth amendment were met. But the purpose of the statute was to obtain consent to tests which could not constitutionally be taken without consent.
There is nothing in the language of the statute or its legislative history which gives the slightest indication that the legislature intended to restrict or bar the taking of blood alcohol tests without the individual's consent when the State was not prohibited from doing so by the State and Federal Constitutions.
It is of course true that RSA 262-A:69-e (Supp. 1979) provides that if a person under arrest refuses to submit to a test for blood alcohol, "none shall be given." The majority construes these words as an absolute prohibition against the taking of blood samples without consent even when consent is constitutionally unnecessary and as requiring that the results of a test taken without consent be excluded from evidence. Although we recognize that this is a possible construction of the statute, we do not think that the legislature intended this result. We believe that the legislature intended to prohibit such testing without consent only when consent is necessary to comply with constitutional requirements.
Even assuming that RSA 262-A:69-e (Supp. 1979) does prohibit the taking of blood samples without consent in cases where the State and Federal Constitutions would allow them, we cannot read into the statute an intent to exclude the results of tests taken in violation of this provision. No such prohibition is found in RSA 262-A:69-e (Supp. 1979), although we do find an express provision for exclusion of the results in RSA 262-A:69-c for failure to inform the arrested person of his rights to have similar tests made and of the consequences of his refusal to consent. That exclusion, however, is confined to instances in which there is a failure "to comply with the provisions of this section." (Emphasis added.) Similarly, RSA *330 262-A:69-i provides that "[n]o chemical tests authorized by RSA 262-A:69-a shall be considered as evidence . . . unless such test is performed in accordance with methods prescribed by the director of the division of public health." The inclusion of exclusion from evidence provisions in RSA 262-A:69-i and RSA 262-A:69-c, which are strictly confined to violations of those sections, and the omission of such a provision from RSA 262-A:69-e (Supp. 1979) is a clear indication that the legislature did not intend that the evidence be excluded because of the violation of that section.
Although we adhere to the exclusionary rule in cases of constitutional violations, we would not impose it in this case for a mere statutory violation absent a legislative mandate. We would remand the case for a hearing to determine whether the taking of the blood sample in this instance violated any constitutional provision and would exclude the evidence only if it did.
The fact that the court is so evenly divided as to the legislative intent clearly indicates a need for legislative clarification. Of course, the legislature can, if it wishes, permit tests without consent in cases where they are allowed by the State and Federal Constitutions and can also provide for the admission of the results obtained without consent. We, of course, express no opinion as to what should be done but only point out the need for a clearer expression of the legislature's intent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3076679/ | Opinion filed January 24, 2014
In The
Eleventh Court of Appeals
__________
No. 11-13-00228-CV
__________
IN THE INTEREST OF J.A.W. AND E.M.W., CHILDREN
On Appeal from the 244th District Court
Ector County, Texas
Trial Court Cause No. C-3148-PC
MEMORAND UM OPI NI ON
This is an appeal from an order terminating the parental rights of the mother
and father of J.A.W. and E.M.W. The mother voluntarily relinquished her parental
rights. The father appeals the termination of his rights and, in a single issue on
appeal, challenges the legal and factual sufficiency of the evidence to support
termination. We affirm.
The termination of parental rights must be supported by clear and
convincing evidence. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2013). To
determine if the evidence is legally sufficient in a parental termination case, we
review all of the evidence in the light most favorable to the finding and determine
whether a rational trier of fact could have formed a firm belief or conviction that its
finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if
the evidence is factually sufficient, we give due deference to the finding and
determine whether, on the entire record, a factfinder could reasonably form a firm
belief or conviction about the truth of the allegations against the parent. In re C.H.,
89 S.W.3d 17, 25–26 (Tex. 2002). To terminate parental rights, it must be shown
by clear and convincing evidence that the parent has committed one of the acts
listed in Section 161.001(1)(A)–(T) and that termination is in the best interest of
the child. FAM. § 161.001.
With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet.
denied). But courts may use the non-exhaustive Holley factors to shape their
analysis. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include,
but are not limited to, (1) the desires of the child, (2) the emotional and physical
needs of the child now and in the future, (3) the emotional and physical danger to
the child now and in the future, (4) the parental abilities of the individuals seeking
custody, (5) the programs available to assist these individuals to promote the best
interest of the child, (6) the plans for the child by these individuals or by the
agency seeking custody, (7) the stability of the home or proposed placement, (8)
the acts or omissions of the parent that may indicate that the existing parent-child
relationship is not a proper one, and (9) any excuse for the acts or omissions of the
parent. Id. Additionally, evidence that proves one or more statutory grounds for
termination may also constitute evidence illustrating that termination is in the
child’s best interest. C.J.O., 325 S.W.3d at 266.
In this case, the trial court found that the father had committed four of the
acts listed in Section 161.001(1)—those found in subsections (D), (E), (N), and
2
(O). Specifically, the trial court found that the father had placed or allowed the
children to remain in conditions or surroundings that endangered their physical or
emotional well-being, had engaged in conduct or knowingly placed the children
with persons who engaged in conduct that endangered the children’s physical or
emotional well-being, had constructively abandoned the children, and had failed to
comply with the necessary provisions of a court order. The trial court also found,
pursuant to Section 161.001(2), that termination of the father’s parental rights
would be in the best interest of the children.
The record shows that the Department of Family and Protective Services
removed five-year-old J.A.W. and three-year-old E.M.W. from the parents’ care
after attempting family based safety services. The Department’s involvement with
the family was a result of two incidents involving the father’s neglectful
supervision of the children. On the night of October 2, 2011, Officer Brian Sirmon
responded to a disturbance call involving the father, who was “highly intoxicated”
and uncooperative with the police. The father was arrested. A witness advised the
police that the father’s children were in another apartment in the same apartment
complex without adult supervision. Officer Sirmon went to that apartment, which
was approximately seventy-five yards away from the building where the father was
located, and found the children. They were very young and had been left alone in
the apartment, with the apartment door unlocked, in a high crime area for at least a
couple of hours. The father was in no condition to take care of any child. Because
Officer Sirmon could not locate a responsible party to take the children, he called
the Department and asked for assistance. Officer Sirmon was also concerned
because there was little or no food in the apartment and because the condition of
the apartment posed a risk of danger to the children’s health and safety. An
investigator for the Department testified that a similar incident had occurred in
3
April 2011 when the father was under the influence of alcohol and left the children
home alone.
The Department offered services to the parents and attempted to work with
them. The children’s aunt agreed to be responsible for the children and to
supervise the parents’ visits with the children. Those arrangements fell through in
March 2012, and the mother brought the children to the Department because she
was not able to take care of them at that time. The children’s aunt confirmed that
she did not wish to continue to be the children’s voluntary placement/caregiver,
and the father informed the Department that he was not in a position to provide for
the children. Because no family members were available for suitable placement,
the Department removed the children and placed them in foster care.
The conservatorship caseworker, Yesenia Venueva, testified that the father
failed to comply with his court-ordered family service plan. Venueva detailed the
father’s numerous failures to comply with his service plan, including several
refusals to submit to drug testing and one positive drug-test result. Venueva
believed that it would be in the children’s best interest to terminate the father’s
parental rights and allow the children to remain in their current placement. The
children had bonded with their foster mother and had expressed a desire to stay
with her. The foster mother had expressed a desire to adopt the children, and the
Department recommended that the foster mother be allowed to adopt the children
if they became available for adoption. Venueva testified that adoption by the foster
mother would be in the children’s best interest.
The foster mother testified that she is committed to both boys and wants to
adopt them. She testified that J.A.W. has some behavioral issues, including
stealing things—which J.A.W. said he learned from his father—and fighting.
J.A.W. also has some anger issues that relate to his parents, particularly his father.
According to the foster mother, J.A.W. was angry about his parents’ actions, angry
4
that he had lived in a house with drugs, angry that he had not received Christmas
presents because his father was drunk, angry that he had missed meals, angry that
he had to sleep on the floor at his aunt’s house, and angry that his parents had not
come for him.
At the time of trial, the father was in jail on a pending charge of child
endangerment. The father came to court and testified that he was proud to be the
children’s father. He said that he had been the children’s primary caretaker and
“was basically their mother and father.” The father explained that, on the night he
was arrested, he was not intoxicated but had merely gone to a neighbor’s
apartment, from which he could clearly see the door to his apartment. According
to the father, the children were asleep when he left, and he locked the apartment
door. The father also testified that he did not teach J.A.W. to steal. The father
conceded that he had not complied with the requirements of his service plan.
Section 161.001(1)(O) does not “make a provision for excuses” for a
parent’s failure to comply with the family service plan. In re J.S., 291 S.W.3d 60,
67 (Tex. App.—Eastland 2009, no pet.). The Department produced clear and
convincing evidence from which the trial court could reasonably have formed a
firm belief that the father failed to comply with the provisions of his family service
plan as ordered by the trial court. The evidence also showed that the children had
been in the Department’s care for at least nine months and that the children had
been removed from the parents due to abuse or neglect. Thus, we hold that the
evidence is legally and factually sufficient to support the trial court’s finding under
Section 161.001(1)(O). See id. Because a finding that a parent committed one of
the acts listed in Section 161.001(1)(A)–(T) is all that is required under that statute,
we need not address the father’s challenges to the sufficiency of the evidence to
support the trial court’s other findings under Section 161.001(1). See TEX. R. APP.
P. 47.1.
5
We also hold that, based on the evidence presented at trial and the Holley
factors, the trial court could reasonably have formed a firm belief or conviction
that termination of the father’s parental rights would be in the best interest of the
children. See Holley, 544 S.W.2d at 371–72. Upon considering the record as it
relates to the desires of the children, the emotional and physical needs of the
children now and in the future, the emotional and physical danger to the children
now and in the future, the parental abilities of the father and of the foster mother,
the conduct of the father, the programs available to assist the family, the plans for
the children by the Department, the past instability of the father’s living
arrangements, the stability of the children’s current placement, and the father’s
history of substance abuse, we hold that the evidence is both legally and factually
sufficient to support the finding that termination of the father’s parental rights is in
the best interest of the children. See id. The trial court’s finding as to best interest
is supported by clear and convincing evidence. The father’s sole issue on appeal is
overruled.
We affirm the trial court’s order of termination.
JIM R. WRIGHT
CHIEF JUSTICE
January 24, 2014
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
6 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1743170/ | 289 Wis. 2d 285 (2006)
2006 WI 25
710 N.W.2d 904
STATE of Wisconsin, Plaintiff-Respondent,
v.
Sean M. DALEY, Defendant-Appellant.
No. 2005AP48-CR.
Supreme Court of Wisconsin.
Decided March 16, 2006.
The Court entered the following order on this date:
Defendant-appellant-petitioner, Sean M. Daley, has filed a petition for review. The State has filed a response that the court of appeals' decision in this case conflicts with binding precedent, State v. Barney, 213 Wis. 2d 344, 570 N.W.2d 731 (Ct. App. 1997). Having considered the petition for review and the State's response,
IT IS ORDERED the petition for review is granted, the court of appeals' decision is vacated and this matter is remanded to the court of appeals for further proceedings in light of Barney.
IT IS FURTHER ORDERED that the proceedings in this court are held in abeyance pending remand, and while the appellate court conducts proceedings on remand, this court retains jurisdiction over the petition for review and the parties are instructed to inform this court of the outcome on remand.
*286 | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261024/ | 632 F.Supp. 1565 (1986)
UNITED STATES of America, Plaintiff,
v.
Vincent R. LARSON; Audrey H. Larson; Prairie Farms; Verdjie Larson, individually and as personal representative of the Estate of Robert Larson; The Federal Land Bank of Saint Paul; Farmers Union Elevator Co., Velva, North Dakota; and Continental Grain Company, Defendants.
Civ. No. A4-83-179.
United States District Court, D. North Dakota, Northwestern Division.
April 23, 1986.
*1566 Gary Annear, Asst. U.S. Atty., Fargo, N.D., for plaintiff.
James R. Jungroth, Jamestown, N.D., and Michael G. Sturdevant, Minot, N.D., for defendants.
MEMORANDUM AND ORDER
VAN SICKLE, District Judge.
Defendants Vincent R. Larson (Vincent) and Audrey H. Larson (Audrey) move to dismiss the complaint. Plaintiff opposes that motion.
FACTS
This action concerns mortgages on certain property, located in Ward County, North Dakota, owned by Defendants Vincent and Audrey.
On November 29, 1978, Vincent executed a note and mortgage to Robert Larson (Robert) and Verdjie Larson (Verdjie). The face indebtedness secured by that mortgage was $250,000.00. Robert and Verdjie, and Verdjie alone after Robert's death, made subsequent loans to Vincent on various dates between November 29, 1978 and January 1, 1983; those subsequent loans totalled $370,090.01.
On April 3, 1981, Vincent and Audrey, doing business as Prairie Farms, executed a promissory note in the amount of $188,500.00, along with a mortgage securing that note, to the Small Business Administration (SBA). The 1981 mortgage to SBA covered the same property as did the 1978 mortgage to Robert and Verdjie.
On December 21, 1982, Vincent executed a promissory note to Verdjie in the amount of $23,901.01; on the same date Vincent and Audrey executed a mortgage securing that note to Verdjie, individually and as executrix of the estate of Robert.
Vincent and Audrey defaulted on their obligations to Verdjie as well as on their obligations to SBA. In another action, Civil No. A4-83-152, Verdjie sued to foreclose the 1978 mortgage. SBA asserted that its lien had priority over the lien created when the subsequent advances were made to Vincent and Audrey. In an order filed in that action on May 29, 1985, this court ruled that federal law required that the question of the priority of SBA's lien be determined under state law, but denied Verdjie's motion for summary judgment upon concluding that there remained genuine issues of material fact concerning the doctrine of marshalling assets. In a later order, filed October 18, 1985, this court considered affidavit evidence presented, concluded that the doctrine of marshalling *1567 assets did not apply, and granted summary judgment to Verdjie. On January 9, 1986, this court entered judgment in Verdjie's favor in Civil No. A4-83-152, and decreed that the property could be sold at a judicial sale.
DISCUSSION
In this action, Civil No. A4-83-179, SBA seeks foreclosure of the 1981 mortgage. In support of the motion to dismiss, Vincent and Audrey assert that North Dakota law governing mortgage foreclosure applies and that North Dakota law precludes SBA from seeking remedies other than redemption after foreclosure. SBA argues that foreclosure of its mortgage is governed by federal law rather that state law, and that under federal law it is entitled to a deficiency judgment.
This court has determined that Verdjie's mortgage on the property is superior to SBA's mortgage. This court has also determined that Verdjie is entitled to foreclosure, by judicial sale, of her mortgage. Verdjie's rights under her mortgage are governed by state law. Under North Dakota law, she is entitled to foreclosure of that mortgage without regard to the effect of that foreclosure on SBA's junior mortgage. National Credit Union Share Insurance Fund v. University Developers, 335 N.W.2d 559, 560 (N.D.1983).
Vincent and Audrey do not dispute that SBA is entitled to redeem the property after foreclosure of Verdjie's mortgage. Should SBA choose to exercise that right, it would then likely be entitled to foreclose its mortgage. Id. Since SBA has not moved for judgment in its favor, this court need not consider whether SBA is entitled to foreclose its mortgage without redeeming the property.
SBA argues that its rights are governed by federal law, that under federal law it is entitled to proceed to obtain a deficiency judgment, and that it is entitled to so proceed without following state law procedures. SBA bases its position on provisions of the loan documents and on the following regulation:
Applicable law. (1) Loans made by SBA are authorized and executed pursuant to Federal programs adopted by Congress to achieve national purposes of the U.S. Government.
(2) Instruments evidencing a loan, obligation of security interest in real or personal property payable to or held by the Administration or the Administrator, such as promissory notes, bonds, guaranty agreements, mortgages, deeds of trust, and other evidences of debt or security shall be construed and enforced in accordance with applicable Federal law.
(3) In order to implement and facilitate these Federal loan programs, the application of local procedures, especially for recordation and notification purposes, may be utilized to the fullest extent feasible and practicable. However, the use of local procedures shall not be deemed or construed to be any waiver by SBA of any Federal immunity from any local control, penalty, or liability.
(4) Any person, corporation, or organization that applies for and receives any benefit or assistance from SBA, or that offers any assurance or security upon which SBA relies for the granting of such benefit or assistance, shall not be entitled to claim or assert any local immunity to defeat the obligation such party incurred in obtaining or assuring such Federal benefit or assistance.
13 C.F.R. § 101.1(d) (1985) (Emphasis added). The note at issue includes the following provision:
This promissory note is given to secure a loan which SBA is making or in which it is participating and, pursuant to Part 101 of the Rules and Regulations of SBA (13 C.F.R. 101.1(d)), this instrument is to be construed and (when SBA is the Holder or a party in interest) enforced in accordance with applicable Federal law.
(Exhibit A to Complaint). The mortgage at issue includes the following provisions:
In the event said property is sold at a judicial foreclosure sale or pursuant to the power of sale hereinabove granted, *1568 and the proceeds are not sufficient to pay the total indebtedness secured by this instrument and evidenced by said promissory note, the mortgagee will be entitled to a deficiency judgment for the amount of the deficiency without regard to appraisement.
(Exhibit B to Complaint, Paragraph 5);
In compliance with section 101.1(d) of the Rules and Regulations of the Small Business Administration [13 C.F.R. 101.1(d)], this instrument is to be construed and enforced in accordance with applicable Federal law.
(Exhibit B to Complaint, Paragraph 9).
The question of application of federal law rather than state law was addressed in an earlier motion, when this court determined that state law provided the rule of decision in determining the priority of SBA's lien vis a vis Verdjie's lien. This court then stated:
It is clear that federal law governs the rights of the United States arising under nationwide federal programs such as the SBA's loan programs. U.S. v. Kimbell Foods, Inc., 440 U.S. 715, 726 (1979). However, application of federal law does not inevitably require resort to uniform federal rules. "Whether to adopt state law or to fashion a nationwide federal rule is a matter of judicial policy `dependent upon a variety of considerations always relevant to the nature of the specific governmental interests and to the effects upon them of applying state law.'" Id. at 728, quoting U.S. v. Standard Oil Co., 332 U.S. 301, 310 (1947). See also U.S. v. Conrad Publishing Co., 589 F.2d 949, 953 (8th Cir.1978).
(May 29, 1985 Order at 5). The factors to be considered in determining whether to adopt state law as the rule of decision are the need for a nationally uniform body of law, whether application of state law would frustrate specific objectives of the federal program, and the extent to which application of a federal rule would disrupt commercial relationships predicated on state law. Kimbell Foods, 440 U.S. at 728.
North Dakota law does not impose an absolute prohibition against a mortgagee seeking a deficiency judgment. Rather, it requires that a mortgagee seeking a deficiency judgment proceed in an action separate from the foreclosure action and that the mortgagee so proceed only after foreclosure and sale of the property. N.D. Cent.Code §§ 32-19-07, 32-19-04, 32-19-06 (1976). See also Mischel v. Austin, 374 N.W.2d 599 (N.D.1985); H & F Hogs v. Huwe, 368 N.W.2d 553 (N.D.1985). The specific question to be determined on this motion is whether SBA is entitled to proceed to obtain a deficiency judgment without following North Dakota procedural law as outlined in sections 32-19-04 and 32-19-06.
In considering the need for a nationally uniform body of law, this court feels the state has a strong interest in its laws affecting real estate liens and that the state interest is at least as strong as the need for a nationally uniform body of law on remedies available to SBA. To the extent the objectives of SBA's lending program include the government's recoupment of monies loaned, application of the state law would frustrate objectives of the SBA program. The final factor to be considered under Kimbell Foods, the extent to which application of a federal rule would disrupt commercial relationships predicated on state law, is of less significance. The loan documents specify that federal law governs, so it does not appear the SBA-Larson transaction was predicated on state law. Further, there are not commercial relationships involving parties outside the SBA-Larson transaction to be considered; the question addressed in this order is different in that respect from the lien priority question addressed in the May 29, 1985 order.
In considering the balance of the three Kimbell Foods factors, this court concludes that state law should not be adopted as the rule of decision in determining whether SBA may seek a deficiency judgment. Provisions of federal law must therefore govern, and there is not a suggestion that federal law prohibits SBA from proceeding to obtain a deficiency judgment. The language of the mortgage *1569 specifies that SBA may seek a deficiency judgment.
In reaching this conclusion, this court is guided by several decisions of the Court of Appeals for the Eighth Circuit. The Eighth Circuit recently determined that Farmers Home Administration (FmHA) regulations, rather than state law, governed release of FmHA liens since state law would conflict with the federal interest in the FmHA loan program. U.S. v. Missouri Farmers Ass'n, Inc., 764 F.2d 488 (8th Cir.1985). In U.S. v. Victory Highway Village, Inc., 662 F.2d 488 (8th Cir.1981), the court held that Minnesota's redemption statute did not apply to foreclosure of federally held or insured loans under the National Housing Act. See also U.S. v. Great Plains Gasification Associates, Civil No. A1-85-237 (D.N.D. Jan. 14, 1986). Vincent and Audrey cite several cases from other circuits in support of their position. None of those cases deals with the specific question to be decided on this motion and those decisions are not binding on this court.
CONCLUSION
For the foregoing reasons, IT IS ORDERED:
The motion of Defendants Vincent R. Larson and Audrey H. Larson to dismiss the complaint is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1317752/ | 525 F.3d 627 (2008)
UNITED STATES of America, Plaintiff-Appellee,
v.
Meagan Elizabeth MONTGOMERY, Defendant-Appellant.
United States of America, Plaintiff-Appellee,
v.
Holly Danielle Longoria, Defendant-Appellant.
No. 07-2275, 07-2293.
United States Court of Appeals, Eighth Circuit.
Submitted: March 12, 2008.
Filed: May 12, 2008.
*628 Dale E. Adams, Little Rock, AR, for appellant Montgomery.
Sara F. Merritt, North Little Rock, AR, for appellant Longoria.
Kevin T. Alexander, AUSA, Little Rock, AR, for appellee.
Before WOLLMAN, HANSEN, and MELLOY, Circuit Judges.
MELLOY, Circuit Judge.
Meagan Elizabeth Montgomery, Holly Danielle Longoria, and thirty-seven other individuals were indicted for their participation in a methamphetamine-trafficking organization. Montgomery pled guilty to conspiracy to distribute more than 50 grams of methamphetamine. See 21 U.S.C. §§ 841(a)(1) and 846. The statutory mandatory minimum sentence was 5 years. However, Montgomery qualified for safety valve relief, and thus the statutory minimum did not apply. See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. The district court[1] used the calculations in the presentence investigation report, which included a two-level reduction for safety valve relief and a two-level reduction for acceptance of responsibility. The district court granted Montgomery an additional one-level reduction for acceptance of responsibility. The district court found Montgomery's Total Offense Level to be 21 with a Criminal History Category I, resulting in an advisory Guidelines range of 37 to 41 months of imprisonment. The district court then granted the government's motion for a substantial assistance departure under U.S.S.G. § 5K1.1 and sentenced Montgomery to 18 months of imprisonment, a fifty percent reduction from the bottom of her Guidelines range. Montgomery appeals, arguing that the district court erred by failing to follow mandatory *629 procedures when calculating her sentence, that the district court erred by denying her requests for three downward departures, and that her sentence is unreasonable.
Longoria pled guilty to conspiracy to launder drug proceeds. See 18 U.S.C. §§ 1956(a)(1)(A)(i) and 1956(h). The district court found her applicable Guidelines range to be 51 to 63 months of imprisonment. The district court granted the government's motion for a substantial assistance departure under U.S.S.G. § 5K1.1 and sentenced Longoria to 25 months of imprisonment, a fifty percent reduction from the bottom of her Guidelines range. Longoria appeals, arguing that her sentence is unreasonable compared to a co-defendant of equal culpability.
We find Montgomery's arguments to be without merit. First, the district court did not treat the Guidelines as mandatory and considered the § 3553(a) factors as well as Montgomery's rehabilitation, employment, and continued education. We note that the district court improperly stated that Montgomery's Guidelines range was 37 to 41 months of imprisonment. The proper range for an Offense Level 21 and Criminal History Category I is 37 to 46 months of imprisonment. However, the district court's error was harmless. Second, a district court's decision to deny downward departures is unreviewable "unless the district court had an unconstitutional motive or erroneously thought that it was without authority to grant the departure[s]." United States v. Johnson, 517 F.3d 1020, 1023 (8th Cir. 2008). Montgomery does not allege that either exception existed. Third, we review the district court's sentence for reasonableness. Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007); United States v. Hill, 513 F.3d 894, 898 (8th Cir.2008). The reasonableness of the sentence is reviewed under a deferential abuse-of-discretion standard. Gall, 128 S.Ct. at 591; Hill, 513 F.3d at 898. The district court articulated its reason for imposing the sentence and properly considered the § 3553(a) factors. There is nothing to indicate the district court abused its discretion.
Likewise, we find Longoria's argument to be without merit. The district court considered the arguments of counsel and was well aware of the sentences imposed on Longoria's co-defendants. The district court did not abuse its discretion in imposing a sentence that was more than fifty percent below the applicable Guidelines range.
We affirm the sentences imposed by the district court in accordance with Eighth Circuit Rule of Appellate Procedure 47B.
NOTES
[1] The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/755644/ | 148 F.3d 929
49 Fed. R. Evid. Serv. 977
UNITED STATES of America, Plaintiff-Appellee,v.Alberto ALANIZ, Jr., also known as Betin, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Alejandro ALANIZ, also known as Alex, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Alberto ALANIZ, Jr., also known as Betin, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Alberto Reyna ALANIZ, also known as Beta, also known asBeto, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Lonnie HENRY, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Nick CUEVAS, Defendant-Appellant.
Nos. 97-3189, 97-3299, 97-3300, 97-3395, 97-3604 and 97-3605.
United States Court of Appeals,Eighth Circuit.
Argued April 14, 1998.Decided June 24, 1998.Rehearing and Suggestion for Rehearing En Banc Denied inNo. 97-3605 July 29, 1998.
William E. Shull, Liberty, MO, argued, for Alberto Reyna Alaniz.
Daniel Robert DeFoe, Blue Springs, MO, argued, for Alberto Alaniz, Jr.
John Alexander Lozano, Harrisonville, MO, argued, for Alejandro Alaniz.
Randall Brown Johnston, Columbia, MO, argued, for Lonnie Henry.
Ross C. Nigro, Jr., Kansas City, MO, argued, for Nick Cuevas.
William L. Meiners, Asst.U.S.Atty., Kansas City, MO, argued, for United States.
Before BOWMAN, Chief Judge,1 McMILLIAN, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
1
Alberto Reyna Alaniz, Alejandro Alaniz, Alberto Alaniz, Jr., Nick Cuevas, and Lonnie Henry were all convicted of conspiracy to possess with intent to distribute marijuana, 21 U.S.C. § 846. In addition Alejandro Alaniz, Alberto Alaniz, Jr., and Lonnie Henry were convicted of criminal forfeiture, 21 U.S.C. § 853; Alberto Alaniz, Jr. was convicted of distribution of marijuana, 21 U.S.C. § 841; and Alberto Reyna Alaniz and Alejandro Alaniz were convicted of aiding and abetting the distribution of marijuana, 21 U.S.C. § 841. They appeal their convictions and the sentences imposed by the district court.2 We affirm.
I.
2
Evidence at trial indicated that in late 1993 appellants were engaged in the business of distributing marijuana. Under the supervision of Alberto Reyna Alaniz (Alberto) and the day to day direction of Alejandro Alaniz (Alejandro) marijuana was obtained, packaged, and distributed for sale. Marijuana was purchased from suppliers in Mexico and transported by couriers affiliated with the conspiracy from various points in south Texas to appellants and their affiliates in Kansas City, Missouri. Once the marijuana arrived in Kansas City it was stored at several safe houses around the city where it was weighed and repackaged for distribution under the supervision of Alberto, Alejandro, and Alberto Alaniz, Jr. (Alberto, Jr.). The marijuana was then sold on the street through a system of distributors including Lonnie Henry, Bryan Jones, and others.
3
The conspiracy handled a large amount of marijuana during its operation. Between October 1993 and September 1994 over 1,000 pounds of marijuana was transported to Kansas City from Fort Worth and an additional 600 pounds from Houston. Another 1,500 to 2,000 pounds was distributed between February and July 1995.
4
Nick Cuevas put Alejandro in contact with a supplier of methamphetamine, and the conspirators began to market it as well, using many of the same shipping channels and procedures developed for marijuana. One of the couriers, Roel Cantu, was stopped by law enforcement agents at the Kansas City airport who discovered he was carrying methamphetamine.
5
The conspiracy began to unravel when Sharon Hughes decided to cooperate with government officials. Sharon Hughes was the widow of T.B. Hughes who had owed Alberto money for drugs, and she was selling marijuana to pay off his debts. She allowed her phone conversations with members of the conspiracy to be recorded and wore a recording device on her person. The investigation continued and expanded until sufficient evidence was developed, and the members of the conspiracy were arrested.
6
Lonnie Henry and Nick Cuevas pled guilty to the charges against them, and the three members of the Alaniz family went to trial and were found guilty on all counts. Alberto was sentenced to 250 months for conspiracy with a concurrent term of 120 months for aiding and abetting. Alejandro received a life sentence on the conspiracy count and concurrent terms of 120 months on two aiding and abetting counts. Alberto, Jr. was sentenced to 240 months on the conspiracy count with a concurrent term of 120 months on the distribution count. Henry was sentenced to 76 months, and Cuevas to 168 months.
II.
7
The Alaniz defendants attack their convictions on a variety of grounds, some of which they all join in and others which are raised singly. These grounds include sufficiency of the evidence, improper forfeiture, evidentiary rulings by the district court, and restrictions placed on cross examination and the time for closing argument.3
A.
8
Alberto, Jr. argues that there was insufficient evidence to support his conviction for conspiracy to possess with intent to distribute marijuana. The conviction should be upheld unless the evidence viewed in the light most favorable to the verdict could not support a finding that he entered into an agreement with one or more individuals to possess marijuana with the intent to distribute it. U.S. v. Bascope-Zurita, 68 F.3d 1057, 1060 (8th Cir.1995). He does not dispute that a conspiracy existed between October 1993 and September 1995, but he claims that he was not a knowing participant. Once the existence of an agreement is established, however, only slight evidence linking a member to the conspiracy is required. U.S. v. Jenkins, 78 F.3d 1283, 1287 (8th Cir.1996).
9
Several participants in the conspiracy testified about the involvement of Alberto, Jr.. Sharon Hughes testified that beginning in the summer of 1994, Alberto, Jr. obtained marijuana from one of the safehouses and from her late husband. William Turner testified that Alberto, Jr. solicited him to purchase marijuana and began selling to him on a regular basis beginning in late 1994. He also testified that when a dispute about payment arose, Alejandro and Alberto came with Alberto, Jr. to see him and threaten him with violence but that they eventually reached an agreement for him to pay off the debt. Bryan Jones testified that Alberto, Jr. was a primary distributor for the conspiracy, that he helped weigh and package the drugs for resale, and that he distributed an average of fifty pounds of marijuana per week. Cybil Hudson testified that Alberto, Jr. stored both marijuana and methamphetamine at the safehouses involved in the conspiracy, that he transported and distributed both drugs for the conspiracy, and that she once saw him separating a shipment of over 1,000 pounds of marijuana into quantities suitable for storage and distribution. This was sufficient evidence for the jury to find that Alberto, Jr., knowingly participated in the conspiracy to possess and distribute marijuana, and his conviction should be affirmed. Bascope-Zurita, 68 F.3d at 1060.
10
Alberto, Jr., also claims that the prosecution impermissibly varied from the conspiracy charged in the indictment by introducing evidence of a separate conspiracy to distribute methamphetamine. Since no objection was raised to the failure to give a jury instruction on multiple conspiracies, we review only for plain error. Fed.R.Crim.P. 52(b); Slaughter, 128 F.3d at 629. The evidence at trial indicated that methamphetamine was distributed by the same individuals involved in the marijuana conspiracy through the same channels and procedures. It was part of the activities of the conspirators who primarily distributed marijuana. Rather than being a distinct and separate conspiracy, the methamphetamine transactions were part of the operation of the marijuana conspiracy, U.S. v. Slaughter, 128 F.3d 623, 630 (8th Cir.1997), and it was not plain error to admit this evidence.
11
Another claim of insufficiency raised by Alberto, Jr., is that evidence was lacking to link the $2000 federal agents seized from him to the criminal activities of the conspiracy. The money was found in a ski jacket in a closet at one of the safehouses affiliated with the conspiracy and was folded in a manner consistent with drug trafficking. The closet also contained a letter addressed to Alberto, Jr. who was living at the safehouse at the time and had used it as a base to distribute drugs. Based on this evidence the jury could reasonably find that the money resulted from the criminal conspiracy, and the judgment of forfeiture should be affirmed. U.S. v. Wojcik, 60 F.3d 431, 434 (8th Cir.1995).
B.
12
Both Alejandro and Alberto, Jr. object that evidence of their earlier drug convictions and of uncharged methamphetamine violations was improperly admitted. The government introduced certified copies of judgments of conviction against Alejandro for conspiracy with intent to distribute cocaine and against Alberto, Jr. for felony possession of marijuana. Evidence was also introduced that both men used the machinery of the conspiracy to deal methamphetamine contemporaneously with the marijuana distribution. The prosecutor provided notice of intent to use this evidence prior to trial.
13
Alejandro argues that evidence of his 1989 conspiracy conviction should not have been introduced because it involved cocaine, it was too remote in time, and its admission violated Rule 403. Alejandro's prior conspiracy conviction involved the sale and transport of both cocaine and marijuana in south Texas. This earlier activity in moving drugs for sale through shipment points in Texas was sufficiently similar to the present conspiracy to be probative of plan and intent under Rule 404(b). Fed.R.Evid. 404(b); U.S. v. Johnson, 977 F.2d 457, 458 (8th Cir.1992). The prior conviction was not too remote in time because Alejandro was incarcerated for almost the whole of the intervening period between that conviction and the indictment in this case. The jury was instructed that the prior conviction could only be considered on the issue of whether Alejandro intentionally participated in the charged conspiracy, and the district court did not abuse its discretion by admitting it. Fed.R.Evid. 403; U.S. v. Mihm, 13 F.3d 1200, 1204 (8th Cir.1994).
14
The prior conviction offered against Alberto, Jr. was a 1993 conviction for felony possession of marijuana, not for distribution. Alberto, Jr. placed his intent in issue by arguing that he was not a knowing and intentional participant in the conspiracy so the conviction was offered for a permissible purpose under Rule 404(b). The court instructed the jury that this evidence was applicable only on the issue of intent and not to demonstrate participation in the charged conspiracy. Any error in admission of the evidence of felony possession was harmless because of the strength of the rest of the case against Alberto, Jr. U.S. v. Mejia-Uribe, 75 F.3d 395, 398-99 (8th Cir.1996).
15
Both Alberto, Jr. and Alejandro also object under Rules 403 and 404(b) to testimony by Sharon Hughes that during the course of the conspiracy she was given methamphetamine to distribute in addition to marijuana. Her testimony showed methamphetamine was an integral part of the conspiracy's distribution system, and it was therefore not Rule 404(b) evidence of other crimes. U.S. v. Luna, 94 F.3d 1156, 1162 (8th Cir.1996). Even if Rule 404(b) applied, it would be admissible as proof of plan, knowledge, and intent, and its probative value was not substantially outweighed by any prejudicial effect. Fed.R.Evid. 403.
C.
16
The Alaniz defendants argue that the district court erred in restricting their cross examination of several prosecution witnesses. They say that they were improperly prevented from asking Roel Cantu about an incident during his work as a jailer in Texas when he allegedly "turned his head" to allow several inmates to beat another. The district court did not err in excluding this inquiry into a specific instance of conduct. Fed.R.Evid. 608(b). They also complain that they were unable to question Bryan Jones and William Turner, Jr. about the quantity of drugs mentioned in their plea agreements. These quantities were lower than the amounts they testified about at trial, and defense counsel wanted to impeach their testimony. The court excluded the questions on the basis that "it's not uncommon to compromise coming into plea agreements and I think it would mislead the jury." Both Jones and Turner were cross examined extensively on the fact that they had entered plea agreements and would receive favorable sentencing recommendations for their cooperation. The district court did not abuse its discretion in limiting the questioning in light of the entire record. U.S. v. Brown, 110 F.3d 605, 611 (8th Cir.1997); Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986). Finally, after Sharon Hughes admitted that she had a substance abuse problem and that she was taking anti-depressant medication, counsel wanted to ask whether she had "ever been on any medication or undergone any kind of treatment for substance abuse?" because "there's some things that lawyers just have to shoot in the dark on if she has a history." The court did not abuse its discretion in barring this repetitive question. Brown, 110 F.3d at 611.
17
Alberto argues that he was unfairly limited to twelve minutes for his closing argument which prevented fully pointing out the deficiencies in the testimony of the government witnesses. When the court asked how much time was needed for closings, the government requested thirty minutes, Alberto, Jr. and Alejandro each requested ten minutes, and counsel for Alberto initially requested thirty minutes but amended it to twenty. Counsel said "I would like to have my client feel I'm doing something and I don't think twenty minutes is that far out of line." The court allowed thirty-six minutes for each side, leaving up to sixteen minutes for Alberto. The record demonstrates that the several defendants divided the burden of discrediting the government's case during closing argument by attacking different points. The equal time period granted the government to build its case and the defendants to contest it was sufficient opportunity to explore the evidence important to resolution of the issues. The district court did not abuse its discretion in setting the time for closing argument based on its assessment of the complexity of issues and evidence involved. U.S. v. Bednar, 728 F.2d 1043, 1048 (8th Cir.1984).
III.
18
All appellants except Alberto Reyna Alaniz raise challenges to their sentences. Alberto, Jr. attacks the increase in his sentencing range because of his prior drug convictions, Alejandro contends that the court did not make adequate sentencing findings, Henry objects to the denial of an acceptance of responsibility reduction, and Cuevas alleges he was sentenced on an incorrect drug quantity and should have received reductions for a minor or minimal role and for acceptance of responsibility.
19
Alberto, Jr. attacks the increase of his sentencing range under 21 U.S.C. § 841(b)(1)(A) which provides for more serious penalties when a drug offender has prior convictions involving controlled substances. He asserts that the government did not make an adequate showing to trigger the enhancement and that the statute is ambiguous so the rule of lenity prevents him from receiving a higher sentence under it. Under the statutory scheme the government may file an information to establish prior drug convictions if the defendant "either waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed." 21 U.S.C. § 851(a)(2). Alberto, Jr. argues that the statute is unclear whether the opportunity for prosecution by indictment must be available for the prior offenses or for the charge for which he is currently being sentenced. He asserts that the government has not established that his prior convictions were pursuant to indictment. We have previously ruled that § 851 is not ambiguous and that prosecution by indictment need only be available for the current offense. U.S. v. Trevino-Rodriguez, 994 F.2d 533, 536 (8th Cir.1993). Alberto, Jr. was prosecuted by indictment in this case, and the information detailing his prior drug offenses was properly filed so his argument is without merit. The district court did not err in sentencing him using the higher range available under § 841(b)(1)(A).
20
Alejandro Alaniz argues that the district court did not make sufficient findings to support the quantity of drugs on which it based his sentence and the enhancements imposed for role in the offense, U.S.S.G. § 3B1.1(b), obstruction of justice, U.S.S.G. § 3C1.1, and use of a firearm in the offense, U.S.S.G. § 2D1.1(b)(1). The district court must make sentencing findings sufficient to permit meaningful appellate review. U.S. v. Fetlow, 21 F.3d 243, 248 (8th Cir.1994). Here the district court relied on the evidence produced at trial and the sentencing hearing to overrule Alejandro's objections to the presentence report and to adopt its findings. This included evidence that in March 1995 Alejandro assumed the leadership role in the conspiracy previously held by Alberto Alaniz, that he threatened to kill Roel Cantu if he cooperated with prosecutors or refused to "take the rap" himself, that Alejandro kept a gun with him during drug transactions at his house, and that certain amounts of marijuana were regularly shipped and handled by Alejandro and his co-conspirators. The district court's statement that the quantity determinations and sentence enhancements were based on the trial testimony and evidence presented at the sentencing hearing provide a sufficient basis for adequate appellate review. Fetlow, 21 F.3d at 249. The court also specifically noted that a preponderance of the evidence demonstrated that the objections raised were without merit.
21
Lonnie Henry contends that the district court erred in denying him a three level reduction for acceptance of responsibility. Henry pled guilty to conspiracy to possess with intent to distribute marijuana and agreed to testify for the government in the trial of the Alaniz family members. At the time of trial Henry was in custody, and his wife gave his attorney a suit for him to wear to testify. A courtroom deputy discovered a package of marijuana in the suit, and the government chose not to call Henry. He denies knowing that the marijuana was there and argues that there was no evidence linking him to it. We need not consider his claims of error because his sentence of seventy-six months was less than the applicable guideline range of seventy-seven to ninety-six months if he had been granted the acceptance of responsibility. U.S. v. Williams, 97 F.3d 240, 243 (8th Cir.1996).
22
The district court found Nick Cuevas responsible for 710 grams of methamphetamine for sentencing purposes, but he says there was no evidence linking him to these drugs and there were not sufficient findings. Considerable evidence linked Cuevas to the 710 grams that were found on Roel Cantu in the Kansas City airport. There was evidence at his sentencing hearing that Cuevas had facilitated the acquisition of the methamphetamine by giving Alejandro Alaniz the name of a supplier and giving Cantu directions on how to contact him. There was also a taped conversation in which Cuevas asked Cantu if he had contacted the supplier. Testimony by Bryan Jones indicated that Cuevas occasionally supplied him with methamphetamine and that Cuevas had access to kilogram quantities. Michael Regan testified that Cuevas had delivered the 710 grams of methamphetamine which Cantu had when he was arrested. Furthermore, Cuevas could be sentenced as a participant in a joint criminal activity for any acts that he aided, abetted, or procured, U.S.S.G. § 1B1.3(a)(1)(A), or any acts by other members of the enterprise that were in its furtherance and reasonably foreseeable to him. U.S.S.G. § 1B1.3(a)(1)(B); U.S. v. Strange, 102 F.3d 356, 359 (8th Cir.1996). The evidence at sentencing demonstrated by a preponderance of the evidence both that Cuevas directly aided in the acquisition of this methamphetamine and that its acquisition was reasonably foreseeable to him. U.S. v. Hammer, 3 F.3d 266, 273 (8th Cir.1993). The court's findings were sufficient, Edwards, 994 F.2d at 423, and use of the evidence for his sentence was proper.
23
Cuevas argues also that he should have received sentence reductions for minimal or minor role in the conspiracy and acceptance of responsibility. Cuevas bore the burden of demonstrating his eligibility for the reductions, and we review their denial for clear error. U.S. v. Rayner, 2 F.3d 286, 288 (8th Cir.1993). The evidence at sentencing showed that Cuevas was important in expanding the conspiracy to include the distribution of methamphetamine. He was not "plainly among the least culpable" or without knowledge of the scope and activities of the conspiracy. U.S.S.G. § 3B1.2, commentary. Because his involvement was not an isolated unsubstantial instance, Cuevas is not entitled to a reduction simply because his culpability was less than some others involved in the conspiracy. Rayner, 2 F.3d at 288. Entry of a guilty plea alone does not entitle Cuevas to acceptance of responsibility because he continued to deny his involvement after there was substantial evidence of his participation. U.S.S.G. § 3E1.1, commentary (n 3). Denial of a reduction for acceptance of responsibility can only be reversed if clearly erroneous, U.S. v. Furlow, 980 F.2d 476, 476 (8th Cir.1992) (en banc), and we find that it was not.
IV.
24
After consideration of the claimed errors raised on appeal and a thorough review of the record, we affirm the judgments of the district court.
1
The Honorable Pasco M. Bowman became Chief Judge of the United States Court of Appeals for the Eighth Circuit on April 18, 1998
2
The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri
3
Other grounds are raised in supplemental pro se briefs submitted by Alberto and Alejandro. They complain the district court should have held a hearing about a brief courthouse encounter between a juror and a government witness and the prosecutor's closing argument. Pro se submissions by parties represented by counsel are ordinarily not considered. U.S. v. Marx, 991 F.2d 1369, 1375 (8th Cir.1993). Moreover, objections to these points were not raised at trial and no plain error has been shown. Fed.R.Crim.P. 52(b); U.S. v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993) | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2260790/ | 632 F.Supp. 398 (1986)
Gary ZIMMERMAN, Plaintiff,
v.
NATIONAL FOOTBALL LEAGUE, et al., Defendants.
Civ. A. No. 85-2392.
United States District Court, District of Columbia.
March 27, 1986.
*399 *400 James S. Kiles, James J. McDermott, O'Connor & Hannan, Washington, D.C., for plaintiff.
John H. Schafer, Paul J. Tagliabue, Sonya D. Winner, Covington & Burling, Washington, D.C., for NFL, NFLMC, Rozelle, Donlan, and teams.
Joseph A. Yablonski, Yablonski, Both & Edelman, Washington, D.C., for NFLPA and Upshaw.
MEMORANDUM OPINION
BARRINGTON D. PARKER, Senior District Judge:
This proceeding involves a challenge under the federal antitrust laws to the "supplemental draft" conducted in April 1984 by the defendant National Football League ("NFL"). That draft affected players already under contract to professional football leagues other than the NFL. Plaintiff Gary Zimmerman, the third player chosen in the supplemental draft, is currently employed by the United States Football League ("USFL"). The named defendants, in addition to the NFL, are the 28 NFL member teams, NFL Commissioner Pete Rozelle, the National Football League Management Council ("NFLMC"), its Executive Director, Jack Donlan, the National Football League Players Association *401 ("NFLPA"), and its Executive Director, Gene Upshaw.[1]
Zimmerman charges that the supplemental draft violates section 1 of the Sherman Act, 15 U.S.C. § 1 (1982), because it allows him to negotiate with only a single NFL team. This, he claims, is an illegal restraint of trade in the form of a group boycott and concerted refusal to deal. He brings a private antitrust action seeking injunctive relief and treble damages under sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15, 26.
The parties have filed cross motions for summary judgment. The extensive record, including depositions and affidavits of the principal participants and the oral argument of counsel have been fully considered.
The Court determines that the plaintiff's claim must be denied. The labor exemption to the antitrust laws removes the supplemental draft from the restraints of the Sherman Act. Further, Zimmerman is unable to show that he was injured by reason of the alleged antitrust violation. Summary judgment will be granted to the defendants.
BACKGROUND
The material undisputed facts are briefly stated. The 1984 supplemental draft was a response to the USFL's rapid emergence as a viable competitor to the NFL for the services of college football players preparing to enter the professional ranks. A number of star players signed contracts with USFL teams in early 1983 before the NFL's annual draft of college players took place.[2] These included the nation's top college player, 1982 Heisman Trophy winner, Herschel Walker. Some of these USFL players were also drafted in the NFL's regular college draft in the summer of 1983. Teams making such selections faced the risk that their choices would be wasted if the USFL survived and was successful.
By the spring of 1984, the USFL had signed contracts with approximately 100 college players from that year's graduating class, including the 1983 Heisman Trophy winner, Mike Rozier. Plaintiff Gary Zimmerman, considered one of the best offensive linemen in his class, was also signed to a contract. This greatly increased the number of players whose selection in the regular NFL draft would represent only an investment for the future, rather than providing immediately available talent for the drafting team. The NFL teams and NFL Commissioner Pete Rozelle became concerned that only the more successful organizations could afford to use their draft choices in this way.
Article XIII of the 1982 Collective Bargaining Agreement between the NFLMC and the NFLPA allows the NFL clubs to select a total of 336 players in the regular draft. No other restrictions on the methods or rules of the draft are specified. It was believed therefore that one or more rounds of the draft could be set aside solely for players already under contract to the USFL or other leagues. The teams preferred, however, to create additional draft rounds for USFL players. This proposed solution required union approval since it would increase the total number of players drafted.
On March 19, 1984, Jack Donlan raised the subject of a supplemental draft at a brief meeting with Eugene Upshaw. At the time, both men were in Honolulu, Hawaii for the NFL's annual meeting. Upshaw indicated that he would have to discuss the proposal with the Executive Committee of the NFLPA and its counsel, Richard Berthelson, and that the union would have to receive something in return for its approval. On March 22, 1984, the team owners authorized Donlan to continue discussions with Upshaw about the possibility of such a draft.
*402 Meetings and discussions of this nature were not unusual. Indeed, prior to the meeting where the supplemental draft issue was raised, the two negotiators had met on other occasions to discuss a variety of issues that were in contention between the players' union and the league. The players were concerned that the team active player rosters, allowing 49 players per team in 1983, would be reduced to 45 players for 1984 as permitted by the collective bargaining agreement. In addition, the union felt that the league was violating Article XII of the agreement, which required copies of player contracts to be provided to the NFLPA. The NFLMC objected to providing the contracts because salary information had somehow been leaked to the press and to the USFL. Finally, a dispute was brewing concerning the league's contribution to the players' pension fund. The NFL believed that the fund was overfunded and that therefore its $12.5 million annual contribution would no longer be tax deductible. The union feared that the 1984 contribution might not be made.
Donlan and Upshaw had further discussions regarding the supplemental draft following their meeting in Hawaii. Berthelson and his counterpart, Sargeant Karsh, counsel to the NFLMC, also were consulted. On March 26, Upshaw discussed the issue with the Executive Committee of the NFLPA. That committee, without a formal vote, instructed Upshaw to accept the proposal if he was able to get something for it. The details of the supplemental draft agreement were worked out between Donlan and Upshaw in telephone conversations over the next few days. One area of disagreement was the number of selections that would be made. The NFL wanted four or five selections per team (rounds), while the union wanted two. On April 5, Donlan sent a proposed letter agreement concerning the supplemental draft to Upshaw. Changes to the proposal were suggested by Berthelson in a telephone conversation with Karsh. A revised agreement, dated April 11, was sent to Upshaw, who signed it for the NFLPA on April 19. The final agreement provided for three rounds or 84 selections.
At the same time that negotiations over the supplemental draft were taking place, Upshaw continued to press for the resolution of the roster size, player contracts, and pension contribution issues. At a meeting of the Retirement Board on April 18, the union and the NFL agreed to jointly submit a request for an IRS letter ruling that would resolve the question of the deductibility of the league's contribution to the pension fund. Upshaw assured Donlan in a telex of April 25, that the NFLPA would prohibit the dissemination of information from player contracts to the media or representatives of other professional football leagues. The telex indicated that Donlan had advised the union that the NFLMC would resume sending the contracts to the NFLPA when they were obtained from the individual teams.
With regard to roster size, the NFL team owners had already expressed a willingness at the March meeting in Hawaii to have 49 active player roster spots for the 1984 season. Hence, when Upshaw raised this issue as a possible exchange for the supplemental draft, Donlan responded that it was "doable." At a meeting held in Washington, D.C. in late May, the owners formally voted to maintain the 49 player limit. A letter agreement dated May 30, resolving this issue between the NFLMC and the NFLPA, was signed by Donlan and Upshaw.
The regular NFL draft was held on May 1; players already under contract to the USFL or any other professional league were ineligible for that draft. On June 5, the NFL supplemental draft was held. Gary Zimmerman was selected in the first round by the New York Giants; he was the third player chosen overall. Plaintiff played for the Los Angeles Express of the USFL in the spring 1984 and 1985 seasons. His representatives had contacts with the New York Giants in both years regarding the possibility of his signing with the Giants. This lawsuit was filed in July 1985.
*403 ANALYSIS
The parties have filed cross motions for summary judgment. To prevail on such a motion, the moving party must demonstrate that there are no material facts presenting a genuine issue for trial and that, as a matter of law, it is entitled to judgment. Fed.R.Civ.P. 56(c); Goodrich v. Int'l Brotherhood of Electrical Workers, 712 F.2d 1488, 1494 (D.C.Cir.1983). Once the movant has made a satisfactory showing of the absence of disputed material facts, it is incumbent upon the party opposing summary judgment to demonstrate through affidavits or references to materials already in the record that such facts do exist. Mere denials or conclusory allegations are insufficient to raise a genuine issue where the record does not support those allegations. Briggs v. Goodwin, 698 F.2d 486, 489 n. 2, rev'd on rehearing on other grounds, 712 F.2d 1444 (D.C.Cir. 1983).
While the plaintiff "denies" many of the facts alleged by the defendants as not in dispute, his counsel has failed to convince the Court, through affidavits or other record evidence, that a genuine issue remains as to material facts.[3] Summary judgment must be granted to the defendants on two alternative grounds: (1) the supplemental draft is immune from attack under the "labor exemption" to the antitrust laws; and (2) plaintiff has not been injured by reason of the alleged violation of the antitrust laws, and thus has failed to satisfy an important element of his cause of action.
I.
From the outset, the parties have agreed that an immediate threshold issue is the applicability to the supplemental draft of the so-called non-statutory labor exemption to the antitrust laws.[4] Developed through a series of Supreme Court decisions,[5] the exemption reflects an attempt to accommodate the sometimes competing or contradictory policies underlying the nation's labor and antitrust laws. The exemption reflects a national policy encouraging collective bargaining over wages and working conditions between employees and employers, despite its likely detrimental effect on price competition among employers. Connell Construction Co. v. Plumbers & Steamfitters, Local Union 100, 421 U.S. 616, 621-23, 95 S.Ct. 1830, 1834-35, 44 L.Ed.2d 418 (1975).
The elements of the labor exemption were articulated in Mackey v. National Football League, 543 F.2d 606 (8th Cir. 1976), cert. dismissed, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977). That decision is of particular relevance because it deals with the somewhat unique labor and product markets of professional sports. In Mackey the court fashioned a three part test from earlier Supreme Court decisions on the labor exemption: (1) The trade restraint must affect primarily only the parties to the collective bargaining relationship; (2) the agreement must concern a mandatory subject of collective bargaining; *404 and (3) the agreement must be the product of bona fide, arm's-length bargaining. 543 F.2d at 614. The parties are in agreement that this test should govern the Court's analysis of the supplemental draft and that the second part of the test is satisfied.
A.
Before turning to the first and third prongs of the Mackey test, a preliminary issue warrants discussion. Contending that the procedures provided in the NFLPA's constitution for amending the collective bargaining agreement were not followed, plaintiff argues that the supplemental draft is void and therefore cannot be immune from the antitrust laws under the labor exemption. In response, the NFLPA attempts to demonstrate that the proper procedures under its constitution were followed, especially given the history of mid-term adjustments to the parties' collective bargaining agreement and their customary practice of formalizing in letter agreements the results of such negotiations.
It is unnecessary to pursue an in-depth analysis of the union's constitution and prior negotiating practices of the parties to resolve this question. The labor exemption is based on the policies underlying the labor laws, but the validity of an agreement under those laws is a separate question from the applicability of the labor exemption. Further, to qualify for the exemption, the understanding between the parties need not be contained in a formal collective bargaining agreement.
These propositions find support in Connell. That case involved an antitrust challenge to an agreement between a union and a building contractor providing that only companies having current collective bargaining agreements with the union would be awarded subcontracts. The union did not seek to represent the contractor's employees, but instead was attempting to put pressure on non-union subcontractors. The Court first considered the union's argument that the agreement was immune from antitrust scrutiny under the labor exemption and held the exemption did not apply. 421 U.S. at 625, 95 S.Ct. at 1836. It then went on to reject the union's claim that the agreement was specifically permitted by a proviso to section 8(e) of the National Labor Relations Act, 29 U.S.C. § 158(e), in effect ruling that the agreement was an unfair labor practice and therefore null and void. Id. at 626-34, 95 S.Ct. at 1837-41.
If the Supreme Court had followed the analysis suggested by Zimmerman's counsel, it would have first determined that the agreement in question violated the labor laws and then simply stated that the labor exemption was inapplicable to such an agreement.[6] Alternatively, it could have held that the labor exemption was available only to valid collective bargaining agreements. Instead, after undertaking an extensive analysis of the effect of the agreement, the Court simply noted that since there was no collective bargaining agreement between the union and Connell Construction Co., the policy favoring collective bargaining "offer[ed] no shelter for the union's coercive action." Id. at 626, 95 S.Ct. at 1837.[7] Thus, the plaintiff's view of the labor exemption is unsupported by the approach of the most recent Supreme Court case developing the exemption.
Plaintiff relies on the following language from the opinion of Senior Judge Bryant in Smith v. Pro Football, Inc., 420 F.Supp. 738 (D.D.C.1976), aff'd in part and rev'd *405 in part, 593 F.2d 1173 (D.C.Cir.1978), for the proposition that the supplemental draft must be contained in a valid collective bargaining agreement to qualify for the labor exemption:
[A] scheme advantageous to employers and otherwise in violation of the antitrust laws cannot under any circumstances come within the exemption unless and until it becomes part of a collective bargaining agreement negotiated by a union in its own self-interest.
Id. at 742. This statement, however, was in response to the NFL's argument that because the draft concerned a mandatory subject of bargaining it was exempt from the antitrust laws even prior to being made part of an agreement with the union. Id. The quotation relied on by the plaintiff highlights the requirement of a bargained for, as opposed to a unilaterally imposed, condition. See part C infra. In light of Connell, it cannot be read as limiting the types of agreements that may qualify for the exemption. Plaintiff's arguments regarding the union's decisionmaking process are relevant only to the extent that they reflect on the remaining prongs of the Mackey test.
B.
Plaintiff argues that the supplemental draft fails to satisfy the first prong of the Mackey test, namely, that the agreement must primarily affect the parties to the collective bargaining relationship. To support this argument Zimmerman's counsel contends that the primary impact of the draft was upon USFL players who are not members of the NFLPA. Counsel stressed, both in his pleadings and oral argument, that Eugene Upshaw failed to consult with any USFL players before approving the supplemental draft.
Plaintiff's argument misses the point of the primary effect analysis. The requirement derives from the Supreme Court's determination that federal labor policy justifies the anticompetitive effects of an agreement between labor and management only if they naturally follow from the elimination of competition over wages and conditions of employment. Connell, 421 U.S. at 625, 95 S.Ct. at 1836. Thus, while reduced price competition between employers is a natural outgrowth of the standardization of wages within an industry through unionization and collective bargaining, it will not have antitrust implications because the primary effect of such agreements is on the employees and their employer. On the other hand, the restraint imposed by the union in Connell was essentially intended to prevent non-union subcontractors from competing for a portion of the market. This type of direct restraint on the business market is not shielded by the labor exemption. Id. The purpose of the first prong of the Mackey test, then, is to withhold the exemption from agreements that primarily affect competitors of the employer, or, as in Connell, economic actors completely removed from the bargaining relationship.
The plaintiff and other players in his position do not fall into this protected group. Not only present but potential future players for a professional sports league are parties to the bargaining relationship. This was made clear in a recent case involving a challenge to the National Basketball Association's draft and maximum team salary rules, Wood v. National Basketball Association, 602 F.Supp. 525 (S.D.N.Y.1984). The plaintiff in that case, who had not yet signed a contract with an NBA team, claimed that he was not bound by the collective bargaining agreement containing the challenged provisions. The Court rejected this argument: "At the time an agreement is signed between the owners and the players' exclusive bargaining representative, all players within the bargaining unit and those who enter the bargaining unit are bound by its terms." Id. at 529. As a potential NFL player, Zimmerman was part of the collective bargaining relationship between the NFLPA and the NFL to the extent necessary for purposes of the labor exemption. The supplemental draft affected primarily the NFL teams and the players selected; the first *406 prong of the Mackey test is therefore satisfied. Cf. Smith, 420 F.Supp. at 744 ("With regard to the fact that the boycott's impact is on potential employees rather than on competitors of the employer, however, the Court believes that the policies of the labor laws require that such an agreement be found to be within the scope of the exemption to the antitrust laws.").
C.
We come then to the final prong of the Mackey test and what both parties have recognized as the crucial issue of this case: Whether the agreement was the product of bona fide, arm's length bargaining between the parties. This analysis denies the labor exemption to anti-competitive agreements imposed unilaterally by one party, usually management, without regard to the interests of the other. Protecting such agreements would not further the congressional policy favoring collective bargaining. See Jewel Tea, 381 U.S. at 690, 85 S.Ct. at 1602; Smith, 420 F.Supp. at 742. Plaintiff seeks to show that the supplemental draft was unilaterally imposed by the NFL on a weak union and that the characterization of the conversations between Upshaw and Donlan as "bargaining" involving other disputed issues such as roster size was simply a charade, designed by counsel after the fact to immunize the supplemental draft from antitrust challenge.
The facts of this case, as reflected in the uncontradicted deposition testimony of Jack Donlan, Gene Upshaw, and the other NFLPA leaders who were the principal participants in negotiating the agreement, simply do not support the plaintiff's argument. It is clear to the Court that the parties bargained extensively over the issue and that the union representatives concluded that it was in the best interest of the membership to agree to the draft based on the concessions received from the NFL. The third prong of the Mackey test has been met.
A comparison between the bargaining in this case and the circumstances in the other professional sports antitrust cases is enlightening. In Smith, a case challenging the 1968 regular draft, there had been no bargaining at all because the draft occurred before the NFLPA was recognized as the players' bargaining agent. 420 F.Supp. at 742. In Mackey, although collective bargaining agreements in 1968 and 1970 included the challenged reserve system,[8] the court determined that it was not discussed in bona fide bargaining. For one thing, the players didn't make the Rozelle Rule an issue in negotiations. 543 F.2d at 613. Also, the union stood in a very weak bargaining position vis-a-vis the league prior to 1974. Finally, the Rule had existed in the same form since 1963, before any collective bargaining relationship existed. Id. at 615-16. On the other hand, in McCourt v. California Sports, Inc., 600 F.2d 1193 (6th Cir.1979), the court held that the players' union had accepted the National Hockey League's reserve system after good faith bargaining. It recounted the long history of negotiations between the parties, which included the threat of a strike and an antitrust suit, and noted particularly that the union's failure to eliminate or change the reserve system did not mean that bargaining sufficient to exempt the agreement from the antitrust laws had not occurred: "That the position of one party on an issue prevailed unchanged does not mandate the conclusion that there was no collective bargaining over the issue." 600 F.2d at 1201.
The NFLPA appears to be more powerful now than at the time of Mackey or Smith. The 1982 collective bargaining agreement was reached only after a 57-day strike. It must also be remembered that the agreement in this case was not made during negotiations for a comprehensive *407 collective bargaining agreement.[9] Nor was the subject of the agreement as basic as a reserve system, which has potential effects on every union member. Under the circumstances, it is not surprising that negotiations were not as intense and prolonged as in McCourt. Nonetheless, the record shows that a fair amount of give and take took place between Upshaw and Donlan. They bargained not only over what the NFL might exchange for the draft, but also over how many rounds would be allowed and other technicalities. The NFLPA Executive Committee wanted to get something in return for the supplemental draft and believed the roster size concession and other agreements were good enough. Of course, the union's bargaining position was not especially strong. Under the current collective bargaining agreement, the NFL could have either set aside a few rounds of the regular draft for players in the USFL or continued to draft USFL players in the regular draft as it did in 1983.
Plaintiff makes two points in an attempt to show that the existence of good faith bargaining remains dependent on disputed factual issues. First, he notes that the "quid pro quo" supposedly received by the Union was not reflected in the letter agreement in which the union agreed to the draft. Second, he alleges that the concessions the NFL made in return for the supplemental draft were meaningless and therefore cannot support a finding that the agreement was the result of good faith bargaining.
With regard to the first point, Mackey requires that there be actual bona fide, arm's-length bargaining. 543 F.2d at 614. A quid pro quo is some evidence that the bargaining took place and that it was done at arm's length. In McCourt, for example, the court pointed to various provisions in the collective bargaining agreement relating to the reserve system as illustrations that good faith bargaining had taken place. 600 F.2d at 1202-03. It is for this reason that the NFLPA has stressed that it received something in return for agreeing to the supplemental draft. But nothing in either Mackey or McCourt requires that a quid pro quo be contained in the agreement under consideration.[10] The Court must simply decide whether the parties engaged in good faith bargaining. If it appears that the agreements regarding the draft and the other issues were related and a result of bargaining, it does not matter whether they were memorialized in a single binding agreement.
Zimmerman's second point may be interpreted two ways either that the union was "taken" or that the quid pro quo was a sham. He argues that since the NFL owners had planned all along to keep the roster size at 49, that agreement could not have been a quid pro quo for the supplemental draft. In a memorandum to the NFLMC Executive Committee transmitting the letter agreement on the supplemental draft, Jack Donlan stated: "Nothing was given by us in exchange for the Agreement." Donlan Deposition, Exhibit 6. Donlan testified that by this he meant that he had not given in on the pension contribution issue, about which the owners were quite concerned. Instead, according to Donlan, the main concession to the players in exchange for the supplemental draft was the 49 player roster limit which the owners had indicated in Hawaii was their preference in any event. At oral argument, Zimmerman expanded upon his attack on the *408 supposed concessions obtained by the NFLPA by noting that in agreeing to resume providing player contracts, NFLMC offered nothing beyond its original obligation under Article XII of the 1982 collective bargaining agreement. The NFLPA countered that the agreement was of substantial value to the union because it avoided the costly delay of a lengthy grievance proceeding before the National Labor Relations Board.
It is not the Court's function in the context of the labor exemption to evaluate the relative bargaining prowess and strategy of the parties, to determine who secured the better deal or whether there was adequate consideration exchanged. The important question is whether bona fide bargaining took place such that the policies in favor of such bargaining should take precedence over antitrust concerns. Because the owners gave up something they were already prepared to grant does not mean that there was an absence of bargaining or that it was conducted in bad faith. In fact, that the union was convinced that roster size was a significant issue over which they needed to bargain is evidence of the arm's-length relationship between the parties. Similarly, the Court is convinced that the union felt the various agreements it entered into were in its best interest. It is the union's honest, albeit subjective, perception that is relevant to the existence of good faith bargaining rather than the Court's objective determination of the comparative value of the consideration exchanged.
In sum, the Court finds that the agreement to allow a supplemental draft in 1984 satisfies all prongs of the Mackey test. The defendants cannot be liable under the antitrust laws for the effects of that agreement.
II.
Even if the labor exemption did not apply, defendants would be entitled to summary judgment on another ground. Plaintiff Zimmerman brings suit under section 4 of the Clayton Act which grants a private right of action to a "person injured in his business or property by reason of anything forbidden in the antitrust laws." 15 U.S.C. § 15 (emphasis added). Causation between the injury and the alleged antitrust violation is a well established requirement in private antitrust cases. Federal Prescription Service, Inc. v. American Pharmaceutical Association, 663 F.2d 253, 268 (D.C.Cir.1981), cert. denied, 455 U.S. 928, 102 S.Ct. 1293, 71 L.Ed.2d 472 (1982); see also Zenith Radio Corp. v. Hazeltine, 395 U.S. 100, 113-14 & n. 4, 89 S.Ct. 1562, 1571-72 & n. 4, 23 L.Ed.2d 129 (1969). The level of proof demanded of the plaintiff on this issue is high. Our Circuit Court has said that "the `fact of injury' must be `certainly proved,'" id. (quoting Poster Exchange, Inc. v. National Screen Service Corp., 431 F.2d 334, 340 (5th Cir. 1970)), cert. denied, 401 U.S. 912, 91 S.Ct. 880, 27 L.Ed.2d 811 (1971), or at least "reasonably certain." Id. at 270. Zimmerman has no cause of action because he cannot prove that he was injured "by reason of" the supplemental draft.
There are a number of cases in which the causation requirement has been fatal to an antitrust claim. In Green v. Associated Milk Producers, Inc., 692 F.2d 1153 (8th Cir.1982), for example, the plaintiffs charged that a dairy cooperative and two independent milk-haulers conspired to divide up territories and later boycott and terminate the plaintiffs' business. The court ruled that there was no evidence of a conspiracy to have the plaintiffs fired and that no causal relationship had been shown between the division of territories and the injury suffered. Id. at 1157-58. It was therefore unnecessary to decide whether the territorial restrictions were lawful. Similarly, in H & B Equipment Co v. International Harvester Co., 577 F.2d 239 (5th Cir.1978), the plaintiff alleged that Harvester, for whom it distributed agricultural machinery, had unlawfully prevented it from bidding on government and rental contracts. The claim of unlawful customer restrictions failed because the plaintiff had not produced any evidence of *409 its ability to penetrate the markets that defendant had supposedly reserved to itself. Id. at 246-47; see also Midwestern Waffles, Inc. v. Waffle House, Inc., 734 F.2d 705 (11th Cir.1984); J.T. Gibbons, Inc. v. Crawford Fitting Co., 704 F.2d 787 (5th Cir.1983); Pitchford v. PEPI, Inc., 531 F.2d 92 (3d Cir.1975), cert. denied, 426 U.S. 935, 96 S.Ct. 2649, 49 L.Ed.2d 387 (1976).
Zimmerman's counsel complains he has been denied the discovery necessary to prove injury. See supra note 3. It is clear, however, that he is referring to the amount of damages which is a different issue than that raised by the NFL. See Federal Prescription Service, 663 F.2d at 268; H & B Equipment Co., 577 F.2d at 246 (distinguishing between the amount of damages and the fact of injury or causation). He then argues that it is speculative to suggest that he would have been selected in the regular draft and that if he had been, his rights might have gone to a team that might have offered him more money, a better location, and generally more security for his family.
In 1983, thirteen players under contract to the USFL were drafted by NFL teams. Given that Zimmerman was the third choice in the supplemental draft and a coveted and highly regarded lineman, it is virtually certain that he would have been chosen in the regular NFL draft had he been eligible. Affidavits of Bobby Beathard, General Manager of the Redskins, Gil Brandt, Vice President of the Cowboys, and the deposition of Al Davis support this assessment. Zimmerman's chances of being drafted by one of his preferred teams (i.e. the four teams on the West Coast) were the same in both drafts: one in seven. And under one of the possible alternatives to the supplemental draft, setting aside a few rounds of the regular draft exclusively for USFL players, Zimmerman might very well have been selected by the New York Giants. Most importantly, the right to sign Zimmerman would have been held by only one team in the NFL, regardless of the alternative selected. What Zimmerman wants is to be a free agent, to be able to negotiate with all 28 NFL teams. That would not have happened even in the absence of the challenged draft. Therefore, as a matter of law, Zimmerman cannot show that he was injured "by reason of" the supplemental draft.
On basis of the above, the Court determines that the plaintiff's claims are lacking in merit. An appropriate order will be entered.[11]
NOTES
[1] The NFLMC and the NFLPA since 1968 have been the collective bargaining representatives of the NFL teams and the NFL players, respectively.
[2] The annual draft, referred to in this opinion as the "regular draft," is not challenged in this proceeding.
[3] Zimmerman pursued extensive discovery prior to the hearing on the summary judgment motions, including depositions of NFLMC and NFLPA personnel. The NFL's objection to release of certain player contracts was sustained since such discovery would be relevant only to the issue of damages. Apart from that one restriction, the plaintiff had every opportunity to develop the record.
[4] The non-statutory labor exemption is to be contrasted with the "statutory" exemption. The latter arises under certain sections of the Clayton Act, 15 U.S.C. § 17; 29 U.S.C. § 52, and the Norris-LaGuardia Act, 29 U.S.C. §§ 104, 105, 113. Those provisions exempt various activities of labor organizations from antitrust scrutiny. The exemption is available only when a union acts in its own self interest and does not combine with non-labor groups. United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788 (1941).
[5] Connell Construction Co. v. Plumbers & Steamfitters, Local Union 100, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975); United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); Local Union 189, Amalgamated Meat Cutters and Butcher Workers v. Jewel Tea Co., 381 U.S. 676, 85 S.Ct. 1596, 14 L.Ed.2d 640 (1965); Allen Bradley Co. v. Electrical Workers, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945).
[6] This possibility was implicitly rejected by the Second Circuit in a case subsequent to Connell. See Commerce Tankers Corp. v. National Maritime Union of America, 553 F.2d 793, 801-02 (2d Cir.) cert. denied, 434 U.S. 923, 98 S.Ct. 400, 54 L.Ed.2d 280 (1977) (labor exemption issue not necessarily controlled by prior determination that agreement violated § 8(e)).
[7] Plaintiff's argument is actually weaker than the argument that might have been made in Connell. There the parties had no collective bargaining agreement whatsoever. In this case, the NFLPA and the NFLMC have a current valid collective bargaining agreement, and plaintiff's objection is that the supplemental draft was not validly made part of that agreement. The policies favoring collective bargaining would still be relevant even if that were the case.
[8] The reserve system in effect at the time of the Mackey complaint included the so-called "Rozelle Rule." The Rule severely restricted the bargaining power of a player whose contract had expired, known as a free agent, because the team signing that player was required to provide one or more players and/or draft choices as compensation to the free agent's former team. Mackey, 543 F.2d at 609 n. 1.
[9] As noted above, the labor exemption does not only apply to formal collective bargaining agreements. Supra pp. 404-405. It follows that bona fide, arm's-length bargaining can occur outside of formal negotiations on a comprehensive agreement. This is consistent with the established labor law principle that collective bargaining is an ongoing process. See Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).
[10] In Mackey, the NFL argued that a few concessions made to the players were a quid pro quo for acceptance of the Rozelle Rule. The district court did not think that such a quid pro quo existed, even though both the concessions and the Rozelle Rule appeared in the same collective bargaining agreement. 543 F.2d at 616.
[11] On March 25, 1986, plaintiff filed a motion to amplify the record based upon "newly discovered evidence." That evidence is a portion of the deposition of Howard Cosell taken in an unrelated antitrust case, United States Football League v. National Football League, 84 Civ. No. 7489 (S.D.N.Y.). Cosell's testimony concerned an informal conversation with Chuck Sullivan, President of the New England Patriots and member of the NFLMC, in which Sullivan expressed the opinion that the supplemental draft violated the antitrust laws. The defendants promptly responded to the plaintiff's motion.
Plaintiff's motion is denied. It is untimely; plaintiff's counsel was aware of the Cosell deposition long before the cross-motions for summary judgment were argued before this Court. The testimony is of little, if any, relevance to the issues discussed in this Memorandum Opinion. The statements of Mr. Sullivan appear to run afoul of the hearsay rule. Fed.R.Evid. 801. In any event, the "off the cuff" opinions on the legal issues in this case voiced in the deposition, even if admissible, would have no effect on the Court's consideration of this matter. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316123/ | 513 S.E.2d 598 (1999)
Veronica D. ROMIG, On Behalf of Herself and All Others Similarly Situated, Plaintiff,
v.
JEFFERSON-PILOT LIFE INSURANCE COMPANY, Defendant.
No. COA97-1303.
Court of Appeals of North Carolina.
April 6, 1999.
*599 McDaniel & Anderson, L.L.P., by L. Bruce McDaniel, Raleigh, and Wolf Haldenstein Adler Freeman & Herz, L.L.P., by David A.P. Brower, New York, NY, for plaintiff-appellee.
Smith Helms Mulliss & Moore, L.L.P., by Larry B. Sitton, James G. Exum, Jr. and Robert R. Marcus, Greensboro, and King & Spalding, by Frank C. Jones, Atlanta, for defendant-appellant.
TIMMONS-GOODSON, Judge.
Jefferson-Pilot Life Insurance Company ("defendant") appeals from an order of the trial court permitting Veronica D. Romig ("plaintiff") to conduct further discovery before the court determined whether to grant class certification. For the reasons hereinafter stated, we dismiss this appeal as interlocutory.
Plaintiff filed a class action complaint against defendant on 6 November 1995 alleging that defendant engaged in a scheme or common course of conduct to use false and misleading sales materials and presentations in the sale of its interest sensitive life insurance policies. Specifically, plaintiff averred that defendant, through its agents, misrepresented the nature of its policies by stating that the premiums would "vanish" after a fixed number of years due to the accumulation of interest or dividends payable on the policies.
On 16 January 1996, the parties filed a Joint Motion for Extension of Time, wherein defendant requested additional time to respond to plaintiff's complaint, and the parties agreed to limit discovery to the issue of class certification until the issue was finally decided. The trial court granted the motion and entered a Scheduling Order, which set the time for completing discovery and submitting briefs on the class certification issue. Plaintiff thereafter served defendant with her First Request for Production of Documents Limited to the Issue of Class Certification. Defendant provided timely responses to plaintiff's requests, producing nearly 10,000 pages of documents.
On 23 January 1996, plaintiff filed a Motion for an Action Maintainable as a Class Action, which she subsequently amended on 3 October 1996. The trial court held a hearing regarding plaintiff's motion on 20 December 1996 and issued a written ruling on 10 February 1997 finding that plaintiff had failed to prove the existence of a "class" as required under North Carolina law. In particular, the court found as follows:
The plaintiff has failed to establish, to the satisfaction of this trial court, the actual existence of a class. She has not established as a threshold matter that defendant Jefferson Pilot's alleged misrepresentations were either standardized representations uniformly made to all putative class members or were representations made as part of a common scheme or course of conduct orchestrated by the defendant and carried out by its agents.
This ruling also directed defendant's counsel to draft a proposed order denying class certification.
On 26 February 1997, before a written order denying class certification was entered, plaintiff filed a Motion for Reconsideration of the Court's Ruling Denying Class Certification and a Motion for Stay of Entry of an Order Denying Class Certification. By her motion for reconsideration, plaintiff requested the trial court to vacate its ruling, pursuant to Rule 60(b)(6) of the North Carolina Rules of Civil Procedure, and to allow plaintiff an opportunity to conduct additional discovery. The trial court granted plaintiff's motion to stay and ordered the parties to submit briefs addressing plaintiff's motion for reconsideration.
The trial court held a hearing on the motion for reconsideration on 26 March 1997. At the hearing, the parties were again afforded an opportunity to argue the issue of class certification. On 14 July 1997, after "review[ing] all of the submissions made by the parties to date," the trial court entered an Order Permitting Further Discovery Before Determination of Class Certification. The order stated that "[t]he plaintiff [shall] have *600 125 days from the date of the filing of this order to conduct full discovery, in a manner and sequence to be chosen by the plaintiff, regarding" matters specifically listed by the trial court. The order then set out specific materials which "plaintiff [was] authorized to seek and be provided with." These materials were consistent with those items sought by plaintiff in the request for additional discovery stated within her motion for reconsideration. From the order permitting further discovery, defendant appeals.
Plaintiff filed a motion to dismiss defendant's appeal as interlocutory. In response, defendant petitioned this Court for writ of certiorari. We will address these matters simultaneously.
"An order is interlocutory if it does not determine the entire controversy between all of the parties." Abe v. Westview Capital, 130 N.C.App. 332, 334, 502 S.E.2d 879, 881 (1998) (citing Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381, reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950)). As a general rule, interlocutory orders are not immediately appealable. First Atlantic Management, Corp. v. Dunlea Realty, Co., 131 N.C.App. 242, 507 S.E.2d 56 (1998). The policy behind this rule is to "`avoid[ ] fragmentary, premature and unnecessary appeals'" by allowing the trial court to completely and finally adjudicate the case before the appellate courts review it. Florek v. Borror Realty Co., 129 N.C.App. 832, 836, 501 S.E.2d 107, 109 (1998) (quoting Jarrell v. Coastal Emergency Services of the Carolinas, 121 N.C.App. 198, 201, 464 S.E.2d 720, 722-23 (1995)).
Nevertheless, a party may appeal an interlocutory order in two instances. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 379, 444 S.E.2d 252, 253 (1994). First, a party may appeal where the trial court enters a final judgment with respect to one or more, but less than all of the parties or claims, and the court certifies the judgment as immediately appealable under Rule 54(b) of the North Carolina Rules of Civil Procedure. Abe, 130 N.C.App. at 334, 502 S.E.2d at 881 (quoting Jeffreys, 115 N.C.App. at 379, 444 S.E.2d at 253). A party may also appeal an interlocutory order "if it affects a substantial right and will work injury to the appellant[ ] if not corrected before final judgment." Perry v. Cullipher, 69 N.C.App. 761, 762, 318 S.E.2d 354, 356 (1984). In either instance, the burden is on the appellant "to present appropriate grounds for this Court's acceptance of an interlocutory appeal and our Court's responsibility to review those grounds." Jeffreys, 115 N.C.App. at 379, 444 S.E.2d at 253.
Discovery orders, such as that from which the present appeal stems, are interlocutory and, thus, are ordinarily not appealable. Gibbons v. CIT Group/Sales Financing, 101 N.C.App. 502, 505, 400 S.E.2d 104, 106 (1991). Our courts, however, have recognized a narrow exception to the rule against direct appeals from discovery orders where such orders include a finding of contempt or other sanctions. See Sharpe v. Worland, ___ N.C.App. ___, 511 S.E.2d 35, 1999 WL 41065 (1999)(discovery order appealable when enforced by sanctions); Wilson v. Wilson, 124 N.C.App. 371, 477 S.E.2d 254 (1996)(discovery order immediately appealable when party adjudged to be in contempt); Willis v. Duke Power Co., 291 N.C. 19, 229 S.E.2d 191 (1976)(discovery order directly appealable when litigant found to be in contempt for failure to comply). Under such circumstances, "the order is appealable as a final judgment." Sharpe, ___ N.C.App. at ___, 511 S.E.2d at 36, 1999 WL 41065, *2.
Because the discovery order at issue in the instant case does not impose sanctions or adjudge defendant to be in contempt and since the trial court did not certify the order under Rule 54, the propriety of this appeal rests upon a showing that the order affects a substantial right. See Jeffreys, 115 N.C.App. 377, 444 S.E.2d 252. Defendant, however, has failed to make such a showing. Defendant's principal argument is that the order deprives defendant of the "substantial right to a fair and impartial adjudication of the class certification issue." While we do not dispute that a litigant is entitled to an unbiased decision-maker and that the same is essential to due process, Evers v. Pender County Bd. of Education, 104 N.C.App. 1, *601 15, 407 S.E.2d 879, 887 (1991), defendant has not shown that this right is in peril because of the court's discovery order. Defendant charges the trial judge with being predisposed toward plaintiff's cause, but we find no support in the record for defendant's contention that the judge acted improperly. Indeed, there is a "`presumption of honesty and integrity in those serving as adjudicator.'" Taborn v. Hammonds, 83 N.C.App. 461, 472, 350 S.E.2d 880, 887 (1986) (quoting Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 1464, 43 L. Ed. 2d 712, 724 (1975)). Therefore, we reject defendant's argument that the discovery order affects its right to a neutral decision on the issue of class certification.
Defendant further challenges the portion of the order requiring it to disclose the names, addresses, and telephone numbers of those policyholders who wrote complaint letters to the company. The files of the complainants were produced to plaintiff in response to a discovery request. These files were also submitted to the trial court as part of the record to be considered in determining the issue of class certification. The names and addresses of the complaining policyholders were redacted from the files prior to their production and submission. Defendant contends that in ordering discovery of the identities of these complainants, the trial court violated defendant's right to protect confidential and proprietary policyholder information. Defendant contends that this right is substantial and will be lost if immediate appeal of the order is denied. We cannot agree.
Initially, we note that our research has uncovered no North Carolina cases which stand for the proposition that an insurance company, as a party to a lawsuit, has a substantial right to prevent disclosure of the identities of complaining policyholders. It is true, as defendant contends, that North Carolina, by adopting the Insurance Information and Privacy Protection Act, N.C. Gen.Stat. § 58-39-1, et. seq., recognizes the confidential nature of policyholder information. This notwithstanding, the Act explicitly provides that an insurer may disclose "personal or privileged information about an individual collected or received in connection with an insurance transaction [where] the disclosure is: ... [i]n response to a facially valid administrative or judicial order[.]" N.C. Gen.Stat. § 58-39-75(8) (Cum.Supp.1997).
Generally, "orders regarding matters of discovery are within the discretion of the trial court and will not be upset on appeal absent a showing of abuse of discretion." Hudson v. Hudson, 34 N.C.App. 144, 145, 237 S.E.2d 479, 480 (1977). "Judicial action [that is] supported by reason is not an abuse of discretion." Gregorino v. Charlotte-Mecklenburg Hospital Authority, 121 N.C.App. 593, 597, 468 S.E.2d 432, 435 (1996).
In its order permitting further discovery, the trial court stated that the documents submitted to date "d[id] not clearly address the issue of whether the life insurance product offered by the defendant was defective." The court further stated that if defendant knowingly put a defective product into the marketplace or if, knowing that its agents were misrepresenting the product, defendant allowed the product to remain in the marketplace, the interests of justice require that the affected consumers have an opportunity for legal redress, such as is available in a class action lawsuit. The court further indicated that questions remained as to whether plaintiff stood in the same relationship to defendant as did the proposed class members so that she could represent the class.
Given these unresolved questions, it was not unreasonable for the trial judge, in its effort to determine whether class certification was appropriate, to order disclosure of the names, addresses, and known telephone numbers of the complaining policyholders and their insurance agents. Moreover, we note that the order at issue was not without restrictions. The trial court limited the time period within which to complete said discovery and confined the scope of such discovery only to those policyholders who had complained. The court did not require defendant to disclose the identities of all existing policyholders or even those who had purchased the allegedly misrepresented policies. Therefore, we hold that the discovery ordered by the trial court was well within its discretionary power. Defendant's argument that the *602 discovery ordered affects a substantial right, then, fails.
The concerns expressed by the dissent regarding the disclosure of confidential information about policyholders is misplaced for two reasons. First, the individual policyholders whose names and addresses the court ordered disclosed had surrendered the cloak of confidentiality and, in fact, desired attention to their perceived injustices, when they expressed in writing their complaints regarding defendant's insurance. Second, the trial court has broad discretion to prevent abuses of discovery and is authorized to issue protective orders under the Rules of Civil Procedure that could preserve the confidentiality of the complaining policyholders, i.e., orders limiting the use of the information and/or prohibiting further disclosure. See N.C.R. Civ. P. 26(c). Certainly, defendant is not precluded from seeking a protective order from the trial court.
For the foregoing reasons, we conclude that defendant has failed to demonstrate that a substantial right will be irreparably harmed if immediate appeal is not allowed. Accordingly, defendant's appeal must be dismissed.
Dismissed.
Judge JOHN concurs.
Judge GREENE dissents.
GREENE, Judge, dissenting.
I agree that the order appealed by defendant is interlocutory. I do not agree, however, that the order fails to affect a substantial right that will be irreparably harmed if the interlocutory appeal is denied.
"[D]iscovery matters are interlocutory and ordinarily are not appealable." Gibbons v. CIT Group/Sales Financing, 101 N.C.App. 502, 505, 400 S.E.2d 104, 106, disc. review denied, 329 N.C. 496, 407 S.E.2d 856 (1991) (emphasis added). I believe this case presents an exception to the general rule that discovery matters are not immediately appealable. In this case, the trial court ordered the disclosure of insurance policyholder information, including the identities of the insured. This information is recognized as confidential, N.C.G.S. ch. 58, art. 39 (1994 & Supp.1998), and it follows that plaintiff has a substantial right to protect the disclosure of the information. Admittedly, the same statute providing that the policyholder information is confidential also provides that it is subject to disclosure by an appropriate court order. N.C.G.S. § 58-39-75(8) (Supp.1998). It is the appropriateness of this order that the insurance company is entitled to have immediately reviewed. If it is not immediately reviewed, the confidential material will be disclosed and the appellate court, after entry of a final judgment, will be helpless to correct any error it may find in the disclosure order. Once the information is disclosed, its confidentiality can never be restored. In other words, if the issue of the legality of the disclosure is not addressed in this interlocutory appeal, it can never be addressed effectively.
I, therefore, would allow this appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1317991/ | 525 F.3d 559 (2008)
An Na HUANG and Zhou Wu Dong, Petitioners,
v.
Michael B. MUKASEY, Attorney General of the United States, Respondent.
No. 07-2074.
United States Court of Appeals, Seventh Circuit.
Argued February 15, 2008.
Decided May 8, 2008.
*561 Thomas V. Massucci (argued), New York, NY, for Petitioners.
Richard Zanfardino (argued), Kathryn DeAngelis, Dept. of Justice, Civil Div., Immigration Litigation, Washington, DC, for Respondent.
Before FLAUM, WOOD, and EVANS, Circuit Judges.
FLAUM, Circuit Judge.
An Na Huang and Zhou Wu Dong are both natives and citizens of China. They applied for asylum, withholding of removal, and relief under the Convention against Torture, alleging that they had been persecuted and tortured on account of Huang's pregnancy prior to having obtained a legal marriage, and the couple's refusal to pay the accompanying fine. The Immigration Judge found that petitioners' asylum claims were untimely, and that the remainder of their claims failed due to lack of credibility and evidence. We agree, and therefore deny the petition for review.
I. Background
Before coming to the United States, Huang lived in Lian Jiang County, Fujian Province, China. She worked as a self-employed seamstress. On January 1, 1996, at age 19, she married Dong in a traditional Chinese ceremony. The couple did not register their marriage and obtain a license[1] because she was underage at the time.[2] After Huang and Dong married, they lived in his parents' home in the village of Guantou Town. Huang testified that she remained registered with her parents' household, and would occasionally visit them in the nearby village of Dong Xi.
In December 1995, prior to their traditional marriage, Huang claims that she learned that she was pregnant after a visit to a private doctor. A few months after their marriage, on March 5, 1996, at approximately 8:00 AM, Huang testified that Family Planning officials arrived at her husband's parents' home. They told her that they knew she was culturally wedded to her husband and that she was eligible for a routine medical exam. Alone at the time, Huang submits that she was forcefully taken to the Lian Jiang County Hospital where her pregnancy was discovered. She says that she was then pushed down on an operating table, made unconscious, and subjected to an abortion procedure. Afterwards, she requested a certificate from the hospital stating that she had gone through this procedure and that she should be allowed to rest for seven days. Huang testified that the entire process from the officials arriving at the home to *562 her discharge from the clinictook two-and-a-half hours.
Two days later, Huang claims to have received a hand-delivered notice of a fine from the Guantou Town Birth Control Office demanding that she pay 3000 yuan renminbi ("RMB") for violating the Fujian Province Birth Control Policy. This fine equivalent to about 370 dollarswas about as much as the couple's annual income. They decided to forgo paying the fine, and three days later, a Public Security Bureau messenger delivered a summons to the home in Dong's name. While it does not state it, we assume that the summons was issued for failure to pay the fine. Instead of reporting to the Public Security Bureau as requested, Dong went into hiding in Fuzhou City. He returned on March 25, 1996, after hearing that his mother had fallen ill. Thirty minutes after his arrival, at 8:00 AM, two officials from the Public Security Bureau and one from the Birth Control Office came to the house and arrested him. Dong submits that he was taken to the Lian Jiang County Jail where he remained for a year. During his detention, he claims that he was tortured, specifically by having electricity applied to his genitals. Dong was released on March 27, 1997. Huang asserts that she attempted to pay the fine earlier while Dong was in jail, but authorities told her that he was to remain detained for a full year. The receipt from the payment to the Birth Control Office indicates that Dong was the payor, and that the reason for collection of payment was "early birth without marriage."
After Dong was released from prison, the couple continued to live in his parents' home until June 2000. At that time, Dong paid $50,000 to a member of the Snakehead gang to be smuggled into the United States. Huang followed suit and also paid $50,000 to a Snakehead to get smuggled into the United States in February 2002. She claims that her precise date of entry was February 14, 2002. The couple has two children, both of whom were born in the United States. The first was born on January 2, 2003, and the second was born on March 29, 2004.
On August 6, 2002, the Immigration and Naturalization Service ("INS") issued Dong a Notice to Appear, charging him with removability pursuant to 8 U.S.C. § 1227(a)(1)(A). Huang filed an application for asylum with the Department of Homeland Security ("DHS") on February 13, 2003.[3] Later, on March 24, 2003, she too was charged with removability. Both Huang and Dong conceded that they were removable. Their cases were consolidated, and a merits hearing on Huang's application for asylum was held on September 29, 2005. The Immigration Judge ("IJ") issued a decision denying all relief and ordering both Huang and Dong removed to China. The Board of Immigration Appeals ("BIA") agreed with the IJ, and Huang and Dong now present their petition for review.
II. Discussion
Huang and Dong argue that the IJ erred in denying their claims involving asylum, withholding of removal, and the Convention against Torture ("CAT"). We analyze each issue in turn.
A
The Immigration and Nationality Act ("INA") gives the Attorney General discretion to grant asylum to an alien who qualifies as a refugee, which refers to an alien who is unwilling or unable to return to her home country "[b]ecause of persecution or *563 a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). But there are limits to this protection. The INA requires that asylum applications be filed within one year of an alien's arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). The alien must prove that she has timely filed her application by clear and convincing evidence. Id. The only exceptions to the deadline are changed circumstances materially affecting eligibility for asylum, or extraordinary circumstances relating to the delay in filing the application. Id. at § 1158(a)(2)(D).
In this case, the IJ found that each of the petitioners' asylum applications were untimely. Dong's only explanation for filing three years after his arrival was that he did not know that asylum was available. On appeal, petitioners do not appear to argue that this is a valid justification for making an exception to the one-year time bar. Instead, they seem to implicitly rely on 8 U.S.C. § 1158(b)(3)(A), which would allow Dong to derivatively obtain asylum through Huang. This of course assumes that Huang proved by clear and convincing evidence that she timely filed her asylum application. We agree with the IJ that she did not succeed in doing so. Huang insists that she arrived in the U.S. on February 14, 2002 just one day under the deadlineand she knew that this was the date because she was told it was Valentine's Day. A romantic notion no doubt, but in spite of the fact that she has now been living in the U.S. for a number of years since her arrival, she has not mustered any evidence evincing that she arrived on or around this date. There is no documentation, valid or counterfeit, to indicate when she may have arrived. Indeed, when asked about the passport she used to enter the country, she stated that she gave it back to the smugglers. Huang also claims that she used her own passport to leave China, but gave that to the smugglers too, thereby leaving doubt as to when precisely she left China. In lieu of documentary evidence, she could have provided anecdotal evidence from relatives or acquaintances about her date of arrival or departure. She failed to do this as well. Thus we are left with nothing more than her own testimony that she knew she arrived on February 14, 2002 because she was told it was Valentine's Day. This in and of itself particularly given the amount of time she has now spent in the U.S.does not add up to clear and convincing evidence regarding her date of arrival.
Since petitioners cannot pass this statutory bar, they argue in the alternative that the IJ's ruling on asylum raises a "question of law," and so we are not precluded from having jurisdiction to hear their claim. Indeed, under the INA, "[n]o court shall have jurisdiction to review any determination of the Attorney General" regarding timeliness of applications for asylum. 8 U.S.C. § 1158(a)(3). It is true that the Real ID Act amended the judicial review provisions of the INA to allow review of constitutional claims and questions of law. See, e.g., Ramos v. Gonzales, 414 F.3d 800, 801-02 (7th Cir.2005). Nevertheless, we have squarely held that an IJ's determination that an asylum application is untimely is a factual determination, and does not raise a question of law. See Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir.2005) ("Perhaps Vasile would like to shoehorn his [untimely asylum] claim into the `question of law' category, but it simply does not fit there.").
There is yet another threshold issue that keeps this Court from assessing the merits of petitioners' asylum claim: *564 they did not exhaust their administrative remedies. Specifically, Huang and Dong did not raise the time bar issue to the BIA. In their first appeal, they simply made the broad argument that the IJ's decision was "contrary to the law and facts of the case." Petitioners argue that this generalized statement is enough to have raised the time bar issue before the BIA. We disagree. Their Notice of Appeal and brief below do not raise any arguments regarding the time bar. The concept is not even mentioned. Petitioners jumped straight into the merits of their claim without raising the threshold issues. Indeed, the BIA explicitly noted in its order that "the respondents have not specifically challenged the denial of asylum on the 1-year ground." Hence, because petitioners failed to exhaust their administrative remedies, we cannot reach the merits of their asylum claim. See Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th Cir.2004).
B
Apart from their asylum claims, Huang and Dong assert that removal should be withheld and that sending them back to China would violate our commitments under the CAT. Withholding of removal prevents the Attorney General from deporting an alien to a country where her life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3). To establish eligibility for withholding of removal here, petitioners must demonstrate a clear probability that they will face persecution if they are removed to China. See Pavlyk v. Gonzales, 469 F.3d 1082, 1087 (7th Cir.2006). Past persecution "may imply a future threat and so require the agency to demonstrate that conditions have improved, ... [but] the focus remains on what is likely to happen following an alien's return home." Kobugabe v. Gonzales, 440 F.3d 900, 901 (7th Cir.2006). With respect to the CAT, an alien must establish by objective evidence that it is more likely than not that he or she would be tortured[4] if returned to the proposed country of removal. 8 C.F.R. § 1208.16(c)(2). We review the IJ's factual findings deferentially, and "inquire only whether the Board's decision has the support of `reasonable, substantial, and probative evidence on the record considered as a whole.'" Toptchev v. INS, 295 F.3d 714, 720 (7th Cir.2002) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S. Ct. 812, 117 L. Ed. 2d 38 (1992)). An IJ's adverse credibility determination is upheld so long as it is supported by "specific, cogent reasons" and bears a "legitimate nexus to the finding." Shtaro v. Gonzales, 435 F.3d 711, 715 (7th Cir.2006).
We are satisfied that there was a substantial basis for the IJ to conclude that the petitioners were not credible. For instance, Huang and Dong were not fully able to explain why they would each pay $50,000 to get smuggled into the U.S., but why they could not afford (or find resources to pay) the $370 fine. Some support for this inconsistency can be found in Huang's testimony, where she stated that greater economic opportunity was part of her motivation for coming to the *565 U.S. But there are other, more telling inconsistencies as well. The abortion certificate that Huang presented as evidence for her claim, for example, is generally only given to individuals who undergo a voluntary abortion, so that they may give it to their employer to get leave to rest. COUNTRY REPORT at 22-23. Huang did not claim to have a voluntary abortion, and, perhaps more significantly, she was self-employed. The fine associated with this procedure stated that it was for "early birth without marriage," but there was no birth. In general, petitioners have not presented an adequate explanation for why they would be required to pay a social compensation fee when no child was born. Also, it was unclear why Dong would be summoned to the Public Security Bureau when Huang was the one who became pregnant and who was specifically named in the notice of the fine. With respect to Dong's time in prison, it was curious that he omitted any claims of torture in his initial asylum application, and offered as his reason that he was not asked about it. And the detention notice that he claims he kept with him in jail for the entire year is, according to evidence in the record, never given to the individual who is detained. The timing of certain events also raised suspicion with respect to the veracity of petitioners' story. Huang's pregnancy and the couple's cultural marriage were discovered by Family Planning officialsin a different villagerather swiftly. This was in spite of the fact that Huang saw a private doctor, not a government doctor. Additionally, while it may be entirely plausible, it is a little difficult to imagine that Dong would be arrested only thirty minutes after having returned to town from ten days of hiding.
There are problems with petitioners' story independent of the narrative. A DHS forensic documents examiner found that the very documents Huang and Dong used to lend credence to their claims were not authentic or genuine. Specifically, petitioners submitted five documents as evidence: the birth control surgical certificate, the birth control violation fee, a notice to Huang, the Lianjiang Public Security Bureau detention notice, and the police summons. The first three documents could not be authenticated, which means that there were no indicia of legitimate production. As the forensic examiner put it, "[a]nybody anywhere could have produced these documents." The last two documents were found to be not genuine.[5] Moreover, the forensic examiner believed that they had been artificially aged. Huang and Dong did not present any testimony or even an argumentto rebut this evidence. Since these documents formed the keystone of their story, and since petitioners emphasized that the documents were personally obtained, it was appropriate for the IJ to tack their lack of authenticity onto his adverse credibility determination. See Matter of O-D-, 21 I *566 & N Dec. 1079, 1084 (BIA 1998). In summary, because petitioners' were not found to be credible, they cannot meet the burden of proof on their withholding of removal and CAT claims by showing past instances of persecution and/or torture. With respect to what is likely to occur when petitioners return to China, particularly since they had two children in this country, U.S. Department of State Reports suggest that families with children abroad are generally assessed social compensation fees. COUNTRY REPORT at 24 Again, Huang and Dong have not presented any evidence to contradict this view.
While we therefore agree with the IJ's conclusions regarding withholding of removal and CAT, we pause to note one methodological flaw in the opinion below. The IJ found that one additional reason Huang was not to be believed was that she declared that her entire forced abortion incidentfrom the time she was picked up by officials to the time she was dischargedtook two-and-a-half hours. While the record is not clear on this point, we can infer about thirty minutes associated with travel time. That leaves about two hours. There is nothing in the record to indicate precisely what type of abortion procedure Huang allegedly went through. The IJ does not cite to any medical evidence whatsoever to support his incredulity at the notion that a patient could be given a pregnancy test, anesthetized, subjected to the procedure, and then sent home all in a matter of one-and-a-half hours. This appears to be a questionable assumption, particularly since our research indicates that a dilation and curettage procedure,[6] for instance, can be performed in fifteen minutes. See Richard S. Guido, M.D. & Dale W. Stovall, M.D., Patient Information: Dilation and Curettage (D & C) (William J. Mann, Jr., M.D., ed., 2006), www.uptodate.com. Hence, we urge caution when drawing adverse inferences of this nature in medically sensitive cases.
III. Conclusion
For the foregoing reasons, the petition for review is DENIED.
NOTES
[1] Huang and Dong testified that they attempted to register their marriage in May of 1998 but were turned down because she married underage. On October 8, 2002, the couple legally married in Brooklyn, New York, under the laws of the United States.
[2] Under the National Marriage Law, the minimum age for marriage in China is 20 for females and 22 for males. BUREAU OF DEMOCRACY, HUMAN RIGHTS AND LABOR, U.S. DEP'T OF STATE, CHINA: PROFILE OF ASYLUM CLAIMS AND COUNTRY CONDITIONS 22 (June 2004) [hereinafter COUNTRY REPORT].
[3] Dong also filed an application for asylum in 2003.
[4] The regulations define torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as ... punishing him or her for an act he or she or a third person has committed or is suspected of having committed or intimidating or coercing him or her or a third person...." 8 C.F.R. § 1208.18(a)(1). This torture must be "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." Id.
[5] The phrase "not genuine" is a term of art used by the forensic examiner and is distinct from the concept of a "counterfeit" document. If we imagine a spectrum of authenticity, a counterfeit document would be at one end of the spectrum. In that case, the examiner would have an exact copy of the document from the same location (e.g., Lianjiang jail), and could compare the proffered document to see whether it matches. Or, the examiner would have substantial information that the document is standardized everywhere, regardless of location, and so any deviation from this standard form would be deemed counterfeit. The designation "not genuine," on the other hand, applies to documents where there is no exact specimen from the same location that can be used for comparison. Instead, there are standardized forms used throughout the country, and these are used for comparison, but there is not crystal clear evidence that the standardized forms are used in all locations.
[6] This procedure involves expanding the entrance of a woman's uterus so that a thin instrument can be used to scrape away the lining of the uterus. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316117/ | STEVE SAWYER, Plaintiff,
v.
MARKET AMERICA, INC., Defendant.
No. COA09-922.
Court of Appeals of North Carolina.
Filed May 18, 2010.
Carruthers & Roth, P.A., by Kenneth R. Keller and Kevin A. Rust, for Plaintiff.
Womble Carlyle Sandridge & Rice, PLLC, by Pressly M. Millen and Sarah L. Buthe, for Defendant.
UNPUBLISHED OPINION
BEASLEY, Judge.
Defendant appeals from a trial court order granting Plaintiff's motion to stay a North Carolina proceeding. Because the trial court's decision was not an abuse of discretion, we affirm.
On 3 March 2006, Steve Sawyer (Plaintiff), filed suit against Market America, Inc. (Defendant). In the Complaint, Plaintiff, a citizen of Oregon, alleged that he worked as an internet sales manager for Defendant. Plaintiff asserted that Defendant failed to pay him $25,000 in bonuses and two monthly payments of $4,166.67, pursuant to an employment agreement signed by the parties. Plaintiff sought relief for breach of contract and violation of the wage payment provisions of the North Carolina Wage and Hour Act.
On 12 April 2007, Defendant filed a motion for partial summary judgment, arguing, in relevant part, that the North Carolina Wage and Hour Act was inapplicable to out-of-state residents. Following a hearing, the trial court granted Defendant's motion and found that the North Carolina Wage and Hour Act was indeed inapplicable to Plaintiff. However, during the hearing the trial court indicated that it did not intend for its ruling to prohibit Plaintiff from bringing a similar cause of action in Oregon.
Plaintiff appealed the trial court's order. In Sawyer v. Market Am., Inc., our Court affirmed the decision of the trial court and found that the North Carolina Wage and Hour Act was inapplicable to Plaintiff. 190 N.C. App. 791, 661 S.E.2d 750 (2008). The North Carolina Supreme Court denied Plaintiff's petition for discretionary review on 11 December 2008. Sawyer v. Market Am., Inc., 362 N.C. 682, 670 S.E.2d 235 (2008).
On 26 December 2008, Plaintiff filed suit against Defendant in Oregon seeking relief under the Oregon Wage Claim Act. In response, Defendant filed a motion for emergency injunctive relief in his North Carolina action, seeking to enjoin Plaintiff from pursuing a cause of action in Oregon. Defendant's motion was denied in an order issued on 23 February 2009. Plaintiff filed a motion to stay the North Carolina proceeding on 4 March 2009, and following a hearing, a North Carolina trial court granted Plaintiff's motion. Defendant appeals the trial court's decision arguing that: (I) "None of the factors considered in stay motions supports a stay of this case;" and (II) the doctrine of judicial estoppel is inapplicable to this case.
I.
Defendant first argues that the trial court erred by granting Plaintiff's motion to stay the North Carolina proceeding. We disagree.
Typically, because the trial court's order would have required further action in this case, it would have been interlocutory and not immediately appealable. See Carcano v. JBSS, LLC, ___ N.C. App. ___, ___, 684 S.E.2d 41, 47 (2009) ("An interlocutory order or judgment is one which is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy."); see also, James v. Bledsoe, ___ N.C. App. ___, ___, 679 S.E.2d 494, 495-96 (2009) ("An appeal from an interlocutory order will be dismissed unless the order affects some substantial right and will work injury to the appellant if not corrected before appeal from the final judgment."). However, the North Carolina General Assembly has provided that "[w]henever a motion for a stay. . . is granted, any nonmoving party shall have the right of immediate appeal." N.C. Gen. Stat. § 1-75.12(c) (2009). As the "non-moving" party in the trial court's order granting Plaintiff's motion to stay, Defendant is entitled to immediate appellate review.
Our Court will review the trial court's order for an abuse of discretion. See Lawyers Mut. Liab. Ins. Co. v. Nexsen Pruet Jacobs & Pollard, 112 N.C. App. 353, 356, 435 S.E.2d 571, 573 (1993). "A trial court may be reversed for abuse of discretion only if the trial court made `a patently arbitrary decision, manifestly unsupported by reason.'" Home Indemnity Co. v. Hoechst Celanese Corp., 128 N.C. App. 113, 118, 493 S.E.2d 806, 809 (1997) (quoting Buford v. General Motors Corp., 339 N.C. 396, 406, 451 S.E.2d 293, 298 (1994)). Providing courts with the authority to stay North Carolina proceedings, the General Assembly has stated that:
If, in any action pending in any court of this State, the judge shall find that it would work substantial injustice for the action to be tried in a court of this State, the judge on motion of any party may enter an order to stay further proceedings in the action in this State. A moving party under this subsection must stipulate his consent to suit in another jurisdiction found by the judge to provide a convenient, reasonable and fair place of trial.
N.C. Gen. Stat. § 1-75.12(a) (2009).
To determine whether it would be appropriate to grant a stay, the trial court judge may consider:
(1) the nature of the case, (2) the convenience of the witnesses, (3) the availability of compulsory process to produce witnesses, (4) the relative ease of access to sources of proof, (5) the applicable law, (6) the burden of litigating matters not of local concern, (7) the desirability of litigating matters of local concern in local courts, (8) convenience and access to another forum, (9) choice of forum by plaintiff, and (10) all other practical considerations.
Lawyers Mut., 112 N.C. App. at 356, 435 S.E.2d at 573.
Courts are not required to consider each factor or find that each factor supports an order to stay. Id. at 357, 435 S.E.2d at 574. It is only necessary for a trial court to determine "that (1) a substantial injustice would result if the trial court denied the stay, (2) the stay is warranted by those factors present, and (3) the alternative forum is convenient, reasonable, and fair." Id.
In this case, the trial court determined that "it would work [a] substantial injustice for [Plaintiff's] contract claim to be tried in North Carolina prior to [the] determination of [Plaintiff's] Wage and Hour Claim in the Oregon Wage and Hour Action." Supporting its conclusion, the trial court reasoned that the essence of Plaintiff's claim depends upon the "applicability of wage and hour remedies to plaintiff's claims." While Plaintiff's Wage and Hour claim may be barred in North Carolina, the trial court found that Oregon courts would be best suited to determine the applicability of the Oregon Wage Claim act to Plaintiff's case. Because the application of an Oregon statute is determinative in this case, there is a greater chance that Plaintiff's claims can be resolved in a single trial if the Oregon action is allowed to proceed first. The trial court also found that neither party raised the issue of Defendant's inability to make its witnesses available in North Carolina.
In its order the trial court considered the "nature of the case," "the applicable law," and several "other practical considerations." Most importantly, it appears from the record that the trial court determined that the existing factors warranted a stay and that a substantial injustice would occur if Plaintiff's motion to stay was not granted. The trial court's findings of fact and conclusions of law indicate that Oregon is a convenient, reasonable and fair forum.
Defendant contends that none of the factors enumerated in Lawyers Mutual suggest that the trial court should have granted a stay of the North Carolina action. Notably, Defendant argues that "[t]he terms of the contract at issue provide that North Carolina law will apply, and a local North Carolina company is the defendant. Accordingly, this lawsuit is a matter of local concern, and the applicable law is North Carolina's." Indeed, Plaintiff's employment agreement with Defendant included a forum selection clause reading "[t]his agreement shall be governed and construed under the laws of the State of North Carolina . . . ." The forum selection clause does weigh in favor of Defendant's contention that the North Carolina action should proceed first; however, this factor, amongst several others, was considered by the trial court in its order. After considering the evidence with which it was presented, the trial court concluded that substantial injustice would occur if Plaintiff's motion to stay was not granted. The trial court's order was not the result of a "patently arbitrary decision."
Accordingly, we hold that the trial court's decision to grant Plaintiff's motion to stay was not an abuse of discretion.
II.
Defendant next argues that the trial court's order erroneously suggests that "[Defendant] took inconsistent positions as to whether the dismissal of [Plaintiff's] North Carolina Wage and Hour Act claim affected [Plaintiff's] ability to bring an Oregon Wage Act Claim." We agree with Defendant's contention that the doctrine of judicial estoppel is inapplicable to these facts.
The doctrine of judicial estoppel is intended to prevent "parties from deliberately changing positions according to the exigencies of the moment." Whitacre P'ship v. Biosignia, Inc., 358 N.C. 1, 28, 591 S.E.2d 870, 888 (2004) (citation and internal quotations omitted). Adopting factors set forth by the United States Supreme Court, our Supreme Court provided guidance for when the doctrine of judicial estoppel was applicable:
First, a party's subsequent position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding might pose a threat to judicial integrity by leading to inconsistent court determinations or the perception that either the first or the second court was misled. Third, courts consider whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.
Id. at 29, 591 S.E.2d at 888-89 (internal citations and quotations omitted). The factors enumerated in Whitacre P'ship are not an inflexible checklist and other considerations can guide a Court's determination. Id. at 29, 591 S.E.2d at 889. The only essential factor is that a party's current position must be "clearly inconsistent" with an earlier one. Id. at n.7, 591 S.E.2d at 889 n.7. The Court clarified that the "recognition of judicial estoppel is limited to the context of inconsistent factual assertions and . . . the doctrine should not be applied to prevent the assertion of inconsistent legal theories." Id. at 32, 591 S.E.2d at 890.
Here, during the hearing for Defendant's summary judgment motion, Defendant expressed that if the trial court found that the North Carolina Wage and Hour Act was inapplicable, Plaintiff would not be precluded from bringing a similar action in Oregon. Later, at the hearing for the stay motion, Defendant argued that because Plaintiff's cause of action was based on the contract, a ruling on the contractual issue by a North Carolina court would also settle that issue in an Oregon court. Defendant's position with respect to Plaintiff's potential suit in Oregon never varied. Defendant maintained that Plaintiff could file suit in Oregon, however, if an issue related to the contract were to be tried in North Carolina first, that issue would be settled in a subsequent Oregon proceeding. Because Defendant never took positions that were factually inconsistent, the doctrine of judicial estoppel does not apply.
However, the trial court never actually concluded that Defendant was judicially estopped from making any argument. In its stay order the trial court merely concluded that "[t]he intent of Judge Craig would be frustrated, and the Order previously entered . . . on February 20, 2009 would be circumvented if [Plaintiff] were precluded from pursuing his wage and hour claims in the Oregon Wage and Hour Action by trial of the North Carolina action." The trial court's conclusion simply indicates that the trial court considered other "practical considerations" in determining that substantial justice requires that the court grant Plaintiff's motion to stay.
Accordingly, we hold that the trial court's order granting Plaintiff's motion to stay was not erroneous.
Affirmed.
Judges MCGEE and STEELMAN concur.
Report per Rule 30(e). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2565646/ | 4 N.Y.3d 707 (2005)
COUNCIL OF CITY OF N.Y. v. GIULIANI
Court of Appeals of the State of New York.
Decided March 24, 2005.
Motion for leave to appeal denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312869/ | Harry D. Leinenweber, Judge
This case concerns the Client Solutions Manager ("CSM") position at Facebook, Inc., and whether that role constitutes an "overtime-exempt" position under the Fair Labor Standards Act ("FLSA") and Illinois Minimum Wage Law ("IMWL"). For the reasons stated herein, Defendant's Motion for Summary Judgment (Dkt. No. 48) is denied. Plaintiff's Motion for Conditional Certification of an FLSA collective action (Dkt. No. 45) is granted in part and denied in part.
I. BACKGROUND
Defendant Facebook, Inc. ("Facebook") is a social media company. It generates revenue primarily from selling advertisements that are displayed on its various electronic platforms. (Def.'s Statement of Facts ("SOF") ¶ 5, Dkt. No. 57.) Facebook offers its clients an array of customization and monitoring options so that each client can precisely target particular demographics in its advertisements. (Id. ) Facebook employs an array of advertising, marketing, and engineering professionals to shepherd clients through the process of implementing a Facebook advertising campaign. (SOF ¶ 6.) Facebook's sales structure is organized around industries (known at Facebook as "verticals") and sales teams (known as "pods"). (SOF ¶ 7.)
Facebook utilizes a compensation system in which employees are hired at certain designations that indicate their role and compensation level. For example, a manager in human resources might be designated "M-2": "M" for manager and "2" for second level. (Hickman Dep. 40:8-17, Ex. A to Pl.'s Statement of Additional Facts ("SOAF"), Dkt. No. 58-1.) This case concerns the "Individual Contributor" ("IC") (i.e. , non-managerial) designation. (SOF ¶ 10.) An IC-1 is an Individual Contributor level 1, an IC-2 is an Individual Contributor level 2, and so on. (Id. )
This case concerns a particular position at Facebook - the Client Solutions Manager ("CSM") - whose origin lies in two prior roles that Facebook has since eliminated. Prior to 2014, a sales "pod" included, among other positions, an Account Manager and a Media Solutions Manager ("MeSo"). (SOF ¶ 7.) Account Managers had a "sales role" in which they were responsible for "upselling" Facebook products.
*1012(Hickman Dep. 43:3-22.) "Upselling" is a sales technique in which a seller encourages the customer to purchase additional items or upgrades to make a more profitable sale. (Id. ) Parties disagree over how exactly to characterize the MeSo role, and the extent to which MeSos were overtime exempt. Facebook contends that MeSos had a sales role as well as "more analytical" duties that included planning, implementing, and optimizing the performance of advertising campaigns. (Id. at 41:20-43:22.) In contrast, Plaintiff claims that MeSos performed operational duties, including data entry, troubleshooting bugs in ads, and following up with clients on unpaid invoices. (Bigger Dep. 141:16-149:21.) Plaintiff claims that Facebook classified all MeSos as overtime exempt (Bigger Dep. 131:16-132:3); Facebook contends that only MeSos at certain IC levels were exempt. (Hickman Dep. 36:21-24.)
Facebook hired Plaintiff Susie Bigger ("Bigger") in April 2013 to work in its Chicago office as an Account Manager in the Financial Services "vertical" (industry team). (SOF ¶ 14; Bigger Dep. 74:1-5.) Bigger received an IC-4 designation, which rendered her exempt from overtime compensation. (SOF ¶ 15.)
In late 2013, the Account Manager and MeSo positions were merged into a new role called Client Solutions Manager ("CSM"). (SOF ¶ 8.) Bigger was one of many who assumed that position. (SOF ¶ 16.) Some CSMs were classified as exempt and some as nonexempt. (SOF ¶ 10.) CSMs at IC-1 and IC-2 are non-exempt, overtime eligible positions, and CSMs at IC-3 and above are overtime exempt. (Id. ) Facebook employees at higher IC levels are expected to act with increasingly higher levels of independence, discretion, and autonomy. (SOF ¶ 10.) However, the "core job responsibilities" of a CSM are "the same" across all IC levels. (Hickman Dep. 61:22-25.) Regardless of office location, all CSMs are employed full-time and have the same compensation structure, which is approximately 75% base salary plus 25% commission based on sales quotas. (Hickman Dep. 51:20-25, 87:19-25.)
Bigger retained her IC-4 designation when she became a CSM. (SOF ¶ 15.) Plaintiff claims she worked an average of 60 hours per week as a CSM. (Bigger Dep. 336:5-7.) Due to her IC-4 designation, Facebook classified her as exempt and did not pay her overtime. (Id. )
Plaintiff filed suit against Facebook on October 27, 2017, on behalf of herself and other similarly situated CSMs. Plaintiff claims that Facebook wrongly classified her, and all other IC-3 and IC-4 CSMs, as overtime exempt. She brings two counts: (1) a putative 29 U.S.C. § 216(b) collective action for violating the FLSA's overtime provisions, and (2) a putative Federal Rule of Civil Procedure 23 class action for violating the IMWL's overtime provisions. Plaintiff defines her putative FLSA collective as follows:
All individuals who were employed by Facebook as Client Solutions Managers at level IC-3 or IC-4 at any location in the United States during the period from three years prior to the entry of the conditional certification order, and as extended by stipulation of the parties, to the present.
Bigger now moves for conditional certification of her proposed FLSA collective. Facebook moves for summary judgment, contending that it cannot be held liable under the FLSA and IMWL as a matter of law. The Court will begin with its analysis of Facebook's summary judgment motion.
II. SUMMARY JUDGMENT
A. Incomplete Discovery
As a preliminary matter, Plaintiff contends that Facebook's summary judgment *1013motion is premature. The parties originally planned to conduct discovery in two phases, with one phase to precede and another to follow Plaintiff's Motion for Conditional Certification, as is customary in FLSA collective actions. (Pl.'s Resp. to Def.'s Mot. for Summ. J. at 9, Dkt. No. 56; Decl. of Teresa Becvar, Ex. A to Pl.'s Resp. to Def.'s Mot. for Summ. J., Dkt. No. 56-1.) To that end, Plaintiff deposed two current Facebook employees-Nicolle Hickman and Ginger Melrose-in October 2018. Facebook deposed Bigger immediately thereafter. As far as the Court can tell, those three are the only depositions that have taken place to date. More importantly, they are the only depositions that are presently on the record before the Court.
Plaintiff filed her Motion for Conditional Certification on November 8, 2018. On November 15, 2018, Facebook filed its Motion for Summary Judgment, apparently to Plaintiff's great consternation, as Facebook had not informed her that it was planning to file such a motion. (See Becvar Decl.) Of course, Facebook was under no obligation to keep Plaintiff abreast of its case strategy.
Plaintiff argues that Facebook's summary judgment motion is premature because discovery is not complete in this case. But procedurally, the motion is timely. The federal rules do not require that discovery always be complete (or even underway) before summary judgment can be granted. Larsen v. Elk Grove Vill., Ill. , 433 F. App'x 470, 472 (7th Cir. 2011). FED. R. CIV. P. 56(b) allows a party to file a motion for summary judgment "at any time" until 30 days after the close of discovery, unless the court orders otherwise. FED. R. CIV. P. 56(b). Because discovery has not closed, and the Court has not issued any restrictions on when parties may file for summary judgment, Facebook's Motion is properly before the Court.
In Plaintiff's response to Facebook's Motion for Summary Judgment, she invokes Rule 56(d), arguing that the Court must deny or continue Facebook's summary judgment motion in order for Plaintiff to conduct further discovery before responding. Under Rule 56(d), if a nonmovant shows by affidavit or declaration that, for specified reasons, she cannot present facts essential to justify her opposition, a court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. FED. R. CIV. P. 56(d). Plaintiff attached a declaration by her counsel to her summary judgment response. (See Becvar Decl.) The declaration sets forth the various documents that Facebook has yet to produce, which Plaintiff's counsel believes will raise a genuine issue of material fact as to Facebook's exemption defenses. (Becvar Decl. ¶ 7.) Plaintiff's counsel also names individuals that Plaintiff has yet to depose who she believes could also raise a genuine issue of material fact. (Becvar Decl. ¶ 8.)
Facebook argues that Plaintiff's Rule 56(d) argument is unavailing because she has, to this day, not made any motion under that rule. The Seventh Circuit has made clear that Rule 56(d) requires a motion. See Deere & Co. v. Ohio Gear , 462 F.3d 701, 706 (7th Cir. 2006) ("When a party thinks it needs additional discovery in order to oppose a motion for summary judgment ... Rule 56(f) [now Rule 56(d) ] provides a simple procedure for requesting relief: move for a continuance and submit an affidavit explaining why the additional discovery is necessary."); Farmer v. Brennan , 81 F.3d 1444, 1449 (7th Cir. 1996) ("When a party is unable to gather the materials required by Rule 56(e), the proper course is to move for a continuance under Rule 56(f) [now Rule 56(d) ]."). A *1014Rule 56(d) motion "must state the reasons why the party cannot adequately respond to the summary judgment motion without further discovery and must support those reasons by affidavit." Ohio Gear , 462 F.3d at 706. The preceding opinions refer to an earlier version of Rule 56, in which the current 56(d) provision was located in 56(f). Because no substantive change to this provision occurred when the rest of Rule 56 was rewritten, cases applying Rule 56(f) remain controlling authority. See 10B Fed. Prac. & Proc. Civ. § 2741 (4th ed.).
Plaintiff has not made any motion under Rule 56(d), which constitutes procedural error. See Spierer v. Rossman , No. 1:13-CV-00991, 2014 WL 4908023, at *7 (S.D. Ind. Sept. 30, 2014) (finding that plaintiffs committed procedural error by filing a Rule 56(d) affidavit contemporaneously with their response to summary judgment, rather than requesting 56(d) relief instead of responding to the summary judgment motion), aff'd, 798 F.3d 502 (7th Cir. 2015). Thus, Plaintiff's Rule 56(d) arguments and declaration are not properly before the Court and will be disregarded. The Court will judge Facebook's summary judgment motion on the record as it stands.
B. Legal Standard
Summary judgment is appropriate where there is "no genuine dispute as to any material fact." FED. R. CIV. P. 56(a). A dispute is "genuine" if the evidence would permit a reasonable jury to find for the non-moving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the moving party satisfies its burden, the non-movant must present facts to show a genuine dispute exists to avoid summary judgment, which requires that she "do more than simply show that there is some metaphysical doubt as to the material facts." Sarver v. Experian Info. Sols. , 390 F.3d 969, 970 (7th Cir. 2004). When evaluating summary judgment motions, courts must view the facts and draw reasonable inferences in the light most favorable to the nonmovant. Scott v. Harris , 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). But the nonmovant "is only entitled to the benefit of inferences supported by admissible evidence, not those 'supported by only speculation or conjecture.' " Grant v. Trustees of Ind. Univ. , 870 F.3d 562, 568 (7th Cir. 2017).
C. FLSA
Under the FLSA, employers must pay their workers overtime wages for each hour worked in excess of 40 hours per week. 29 U.S.C. § 207. Overtime wages constitute payment of at least one and half times the regular rate of pay. Id. There are exceptions to the overtime wage requirement, and the burden is on the employer to establish that an employee is covered by an exemption. Schaefer-LaRose v. Eli Lilly & Co. , 679 F.3d 560, 571 (7th Cir. 2012). However, the Supreme Court recently rejected the oft-cited proposition that exemptions to the FLSA are construed narrowly against the employers seeking to assert them. Encino Motorcars, LLC v. Navarro , --- U.S. ----, 138 S.Ct. 1134, 1142, 200 L.Ed.2d 433 (2018). It held that FLSA exemptions should be given a "fair," rather than narrow, interpretation. Id. Additionally, the evaluation of an FLSA claim requires a "thorough, fact-intensive analysis of the employee's employment duties and responsibilities." Blanchar v. Standard Ins. Co. , 736 F.3d 753, 756 (7th Cir. 2013) (citation omitted).
Facebook claims that two FLSA exceptions are applicable to Bigger's work as a CSM: (1) the "highly compensated employee" exception, and (2) the "bona fide administrative capacity" exception. The Court will discuss each in turn. And because both Plaintiff and Defendant's Local *1015Rule 56.1 statements of undisputed material facts contain almost exclusively disputed characterizations about the nature of Bigger's work, the Court will directly cite to the relevant depositions when necessary.
1. Highly Compensated Employee Exception
Facebook claims that Bigger was overtime-exempt under the "highly compensated employee" exception to the FLSA. Under this exception, a "high level of compensation is a strong indicator of an employee's exempt status." 29 C.F.R. § 541.601. An employee who receives a total annual compensation of at least $100,000 is exempt from overtime if she "customarily and regularly perform[ed] any one or more of the exempt duties or responsibilities of an executive, administrative or professional employee." Id. Facebook claims that Bigger customarily and regularly performed the exempt duties of an "administrative" employee. Bigger was paid over $100,000 annually throughout her time at Facebook. (SOF ¶ 18.) Thus, Facebook need only demonstrate that Bigger regularly performed one of the two types of duties of an administrative employee: (1) performing work related to Facebook's management or general business operations; or (2) exercising discretion and independent judgment with respect to matters of significance. 29 C.F.R. § 541.200 ; Silver v. Townstone Fin., Inc. , No. 14-CV-1938, 2016 WL 4179095, at *4 (N.D. Ill. Aug. 8, 2016).
An employee satisfies the first category of exempt administrative duties - work related to the employer's management or general business operations - when she regularly performs work "directly related to assisting with the running or servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment." 29 C.F.R. § 541.201(a). The distinction between assisting with running the business and working on a production line or selling a product is referred to as the "production versus staff" dichotomy. See Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, 69 FR 22122-01 (Apr. 23, 2004) ; Schaefer-LaRose v. Eli Lilly & Co. , 679 F.3d 560, 574 n.22 (7th Cir. 2012). While the production versus staff dichotomy can be difficult to apply in modern service and information industries, id. , it is one analytical tool courts can use to determine whether work is directly related to management policies or general business operations. Schaefer , 679 F.3d at 574 n.22. Additionally, FLSA regulations provide an illustrative list of "functional areas" in which employees frequently qualify for the administrative exemption, which includes advertising and marketing. 29 C.F.R. § 541.201(b). Facebook contends that Bigger regularly performed several types of work related to Facebook's management or general business operations: (1) promoting sales, (2) marketing, and (3) consulting.
a. Administrative Duties: Promoting Sales
Facebook first argues that Bigger regularly "promoted sales," which the Seventh Circuit has indicated is an administrative duty. See Schaefer , 679 F.3d at 574, 577. In Schaefer-LaRose v. Eli Lilly & Co. , 679 F.3d 560 (7th Cir. 2012), the Seventh Circuit concluded that pharmaceutical sales representatives fall within the administrative exemption to the overtime requirements of the FLSA. Id. at 562. The court found that pharmaceutical sales representatives' work is directly related to the general business operations of their company because they "neither produce *1016the employers' products nor generate specific sales, but service the production and sales aspects of the business by communicating the employers' message to physicians." Id. at 576-77. Schaefer differs from this case in a key respect. Critical to the Schaefer court's holding was the fact that, due to strict federal law and medical ethics requirements, pharmaceutical sales representatives do not actually sell any pharmaceuticals to physicians, nor do the physicians upon whom they call actually buy any pharmaceuticals. Id. at 562-63, 575 n. 23 (noting that the sales reps "do not make individual sales" and the "circumstances of pharmaceutical work [are] somewhat unusual, as far as sales and marketing go").
Plaintiff argues that rather than "promoting sales," she made sales, which is not an administrative employee's task. She cites Reiseck v. Universal Communications of Miami, Inc. , 591 F.3d 101 (2d Cir. 2010), in which the Second Circuit considered the FLSA overtime lawsuit of a plaintiff who worked as an advertising salesperson for a free magazine. Reiseck , 591 F.3d at 103. That court concluded that an employee making sales to individual customers is a salesperson - not an administrative employee - for purposes of the FLSA. Id. at 107. In reconciling the differences between Schaefer and Reiseck , the Seventh Circuit emphasized that the Reiseck plaintiff was involved in "routine individual sales," unlike the Schaefer plaintiffs. Schaefer , 679 F.3d at 575 n.23.
Plaintiff contends that her work at Facebook was more comparable to the Reiseck plaintiff than the Schaefer plaintiffs. Facebook's business model is similar to the free magazine at issue in Reiseck . Facebook provides its social media platforms to users on a complimentary basis, and advertising sales constitute the majority of its revenue. See Reiseck , 591 F.3d at 103. The Seventh Circuit's analysis of Reiseck suggests that if Facebook's advertising constitutes its "product," and Bigger sold that "product," she would be a salesperson for FLSA purposes. See Schaefer , 679 F.3d at 575 n.23. Furthermore, Plaintiff underscores that "when an employee is engaged in the core function of a business, his or her task is not properly categorized as administrative." Id. at 574 (finding that plaintiffs' work supports the pharmaceutical company's core function but is distinct from it). Therefore, if advertisements are the core function of Facebook's business (as they appear to be from the record), and Bigger sold those ads, she was engaged in the core function of Facebook's business. Id.
The material facts as to whether Bigger made sales or "promoted" sales are in dispute. Facebook admits that its business is the sale of advertising. (SOAF ¶ 1.) Nicolle Hickman ("Hickman"), Facebook's Federal Rule of Civil Procedure 30(b)(6) designated deponent, is an "HR programs lead" for Facebook's sales and marketing division. (Hickman Dep. 14:7-21.) Hickman testified that Facebook is an "advertising business" and "the product [it] sell[s] is advertising." (Id. at 18:1-9.) Hickman further testified that, prior to the reorganization of its sales team structure in 2013, Facebook used to have two separate sales divisions: "direct sales" and "mid market sales." (Id. at 42:19-25; 45:9-23.) Bigger worked in a client-facing sales division. (Id. at 17:23-18:13.) Hickman testified that CSMs have "sales quotas," and cannot determine the pricing for Facebook products. (Id. at 54:12-20; 55:7-8.)
Facebook's summary judgment briefing is replete with corporate jargon that attempts to obscure the issue of whether Bigger made sales. (See Def.'s Mot. for Summ. J. at 4, Dkt. No. 49 (stating that the purpose of Bigger's job was "promoting *1017the sale of Facebook's panoply of digital marketing product offerings to advertisers").) But ultimately, Facebook admits that Bigger's responsibilities included making sales. (See SOAF § 3; Hickman Dep. at 88:11-20.) Hickman testified further that CSMs are "responsible for sales with existing clients ... [CSMs and Client Partners are] actually both sales which is why they're on commission plans." (Hickman Dep. 88:6-10.) Ultimately, the Schaefer opinion was specific to "the particular jobs at issue here in this particular industry," id. at 575 n.23, and the undisputed facts are insufficient to show that Bigger's work at Facebook is similar enough to that of the pharmaceutical sales reps in Schaefer . Thus, a triable issue of fact remains regarding Defendant's "promoting sales" theory.
b. Administrative Duties: Marketing
Facebook also argues that Bigger regularly performed marketing and consulting work, which generally constitute exempt administrative duties. 29 C.F.R. § 541.201(b). Bigger disputes this characterization. (SOAF ¶ 2.) Bigger claims that, rather than performing marketing and consulting tasks, she performed more rote "operational tasks" like data entry (SOAF ¶ 7); billing clients (SOAF ¶ 6); coordinating client meetings, parties, and meals (SOAF ¶ 15); and ordering and delivering "swag" (Facebook branded merchandise) (id. ).
First, the Court finds that a genuine issue of material fact exists as to whether Bigger did marketing work. Neither the FLSA regulations nor the parties define "marketing." Facebook only identifies one specific marketing duty that Bigger had: she "develop[ed] marketing plans" for Facebook's clients by engaging "cross functional partners" within Facebook and doing some of her own "internal digging and sleuthing to find material." (Def.'s Mot. for Summ. J. at 5 (citing SOF ¶¶ 38-39) ). Bigger counters that she did not "develop marketing plans," but merely pulled advertising templates from Facebook's internal repositories to show to clients. (SOF ¶ 39.) Additionally, Hickman testified that the sales group Bigger worked in was distinct from Facebook's separate Business Marketing Group. (Hickman Dep. 18:14-19:15.) And in its Motion for Summary Judgment, Facebook characterized one of Bigger's duties as "liais[ing]" between clients and Facebook's "marketing sciences team." (Def.'s Mot. for Summ. J. at 9.) Thus, Facebook's own submissions suggest that Facebook's marketing work took place in a different department, of which Bigger was not a part. As such, a factual dispute exists about whether Bigger did marketing work. Facebook's argument fails.
c. Administrative Duties: Consulting
Facebook next argues that Bigger had a "multi-faceted advisory/consultative role" at Facebook. (Def.'s Mot. for Summ. J. at 13.) FLSA regulations provide that acting as an adviser or consultant to an employer's clients may constitute administrative duties. 9 C.F.R. § 541.201(c). Facebook adopts Miriam-Webster's definition of consultant-providing professional or expert advice - and asserts that Bigger was a consultant because "she gave clients advice and recommendations about their advertising spend on Facebook." (Def.'s Mot. for Summ. J. at 13.) Facebook also cites to Verkuilen v. MediaBank, LLC , 646 F.3d 979 (7th Cir. 2011), which concerned an account manager at a software company. In that case, the plaintiff did not make individual sales; she was responsible for working with the company's software engineers to determine how software could be adapted to customer's specific needs. Verkuilen , 646 F.3d at 982. The court found the plaintiff was a "specialist" and had a "consulting role," and was exempt from *1018overtime under the administrative exception. Id. at 982-83. Verkuilen is instructive in considering whether an FLSA plaintiff does "consultant" work, but as explained below, the relevant facts for this determination are in dispute.
Facebook's "consultant" argument is largely duplicative of its "promoting sales" claim. (See Def.'s Mot. for Summ. J. at 13 (stating that Bigger's primary duty was to "promote the sale of Facebook's suite of advertising products through consultation with its clients.").) The facts that Facebook points to in support of its consultant argument all describe the same essential pattern: to the extent Bigger was "advising" or "consulting" clients, such activities were in furtherance of her role selling, or upselling, Facebook "products" (ads). (SOF ¶¶ 26, 28, 31, 43, 50-52, 61.) The facts do not suggest that Bigger was consulting on advertising campaigns-Facebook's clients had their own advertising agencies. (SOF § 41.) And the "expertise" Facebook claims Bigger had was knowing the scope of Facebook's advertising offerings and matching those products to the clients' needs. (SOF ¶ 27.). This argument is unavailing. If being familiar with the employer's clients' needs and the employer's product list makes one a consultant, every employee who made sales would be a consultant. As the Court has already explained, whether Bigger was making sales or merely promoting them is in dispute. Because Facebook argues that Bigger's "consulting" work was intertwined with promoting sales, its claim is premised on disputed material facts, and fails.
d. Administrative Duties: Exercising Discretion
Facebook next contends that Bigger regularly performed work in the second category of administrative duties: "exercis[ing] discretion and independent judgment with respect to matters of significance." 29 C.F.R. § 541.200. Discretion and independent judgment implies that the employee "has authority to make an independent choice, free from immediate direction or supervision." 29 C.F.R. § 541.202(c) ; Blanchar v. Standard Ins. Co., 736 F.3d 753, 757 (7th Cir. 2013). However, this prong does not require that the employee's decisions "have a finality that goes with unlimited authority and a complete absence of review." Id. ; Blanchar , 736 F.3d at 758. Facebook argues that Bigger performed many tasks that satisfy this standard, which can be distilled to: (1) making recommendations to clients about how best to allocate their advertising dollars, (2) deciding what information to relay between clients and other internal Facebook employees, and (3) creating finished products that were presented to clients.
Bigger disputes Facebook's characterization of her work and argues that to the extent she made recommendations to clients, she merely presented materials that she pulled from Facebook's repositories of examples of advertising products. (See Bigger Dep. 123:9-20 ("I was not coming up with the solutions. I was not creating the solutions. It was all things that had been provided to us by vertical managers, product managers, industry experts, engineers, measurement teams."); 126:11-19 ("many of the tasks ... were already written down, and we had manuals and we had scripts and we had templates to follow").) Further, Bigger emphasizes that she did not have authority to make independent choices, as all strategic decisions were made "at the team level," and Bigger's supervisor required her to get his approval at all phases of a task. (SOAF §§ 25, 26.) Facebook admits that Bigger did not have the ability to change or create advertising products or solve complex business issues. (SOAF § 19.) However, at one point in her deposition, Bigger stated that she produced *1019client-ready reports "to some degree." (Bigger Dep. 321:8-10.) Thus, it appears that Bigger's work involved some amount of discretion; however, it is unclear whether she exercised that discretion "customarily and regularly" (defined by FLSA regulations as work normally and recurrently performed every workweek, not isolated or one-time tasks, 29 C.F.R. § 541.701 ) and about matters of significance. Construing the record in the light most favorable to the Bigger, the facts are not sufficiently clear to find that Bigger had the requisite discretion as a matter of law. Scott v. Harris , 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
Defendant cites the Seventh Circuit's decision in Blanchar v. Standard Insurance Company , 736 F.3d 753 (7th Cir. 2013), to support its contention that Bigger had discretion on matters of significance. The court held in Blanchar that the "Director of Sales/Product Manager" for an insurance company was an administrative employee and thus exempt from the FLSA's overtime provisions. Blanchar, 736 F.3d at 759. The Blanchar plaintiff did not make sales; rather, he "promoted sales" as did the Schaefer plaintiffs. Id. at 757. The court found the following duties constituted discretion: promoting sales; training and advising the sales staff; scripting talking points for consultants to use; working largely alone, and meeting with his supervisor only once a year; and using materials he made himself in presentations. Id. at 758. The case Defendant cites is factually inapposite.
In reaching its decision, the Blanchar court also considered the FLSA regulations, which list factors for courts to consider when determining whether an employee exercised discretion with respect to matters of significance. Id. at 757 (citing 29 C.F.R. § 541.202(b) ). Factors include whether the employee provides consultation or expert advice to management; whether the employee has authority to formulate, interpret, or implement management policies or operating practices; and whether the employee has authority to waive or deviate from established policies and procedures without prior approval). Facebook does not contend that Bigger's work satisfies any of the § 541.202(b) factors. Additionally, the Blanchar court looked to the Department of Labor's 2004 final rule and found that courts can also consider factors set forth therein when assessing discretion. Id. at 758 (citing Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, 69 FR 22122-01 (Apr. 23, 2004) ). Those factors include the employee's personnel responsibilities; advertising or promotion work; freedom from direct supervision; authority to set budgets; duty to anticipate competitive products or services and distinguish them from competitor's products or services; and duty to troubleshoot or problem-solve on behalf of management. 69 FR 22122-01. Some of these factors may cut in Bigger's favor, and some against. Regardless, Facebook failed to measure Bigger's work against those factors. Thus, under Blanchar, there remains a genuine dispute of material facts as to Bigger's discretion.
Accordingly, Facebook fails to establish that Plaintiff is overtime exempt under the highly compensated employee test.
2. Bona Fide Administrative Capacity Exception
As an alternative to the highly paid employee test, Defendant seeks to establish that Bigger is exempt from the FLSA's overtime requirements because she was employed in a "bona fide ... administrative ... capacity." 29 U.S.C. § 213(a)(1). To prove that this exemption applies, Facebook must establish: (1) Bigger was *1020compensated at least $455 per week on a salary basis; (2) her primary duty entailed office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and (3) her primary duty included the exercise of discretion and independent judgment with respect to matters of significance. 29 C.F.R. § 541.200. The Court need not perform this inquiry now. Defendant failed to establish that Bigger regularly performed either of those two duties as a matter of law. Thus, the Court denies Facebook's Motion for Summary Judgment on Bigger's FLSA claims.
D. IMWL
The Illinois Minimum Wage Law provides the same overtime wage protections to hourly workers as the FLSA. See 820 ILCS § 105/4a. As a result of their common purpose and similar language, the two statutes generally require the same analysis. See Driver v. AppleIllinois, LLC , 917 F.Supp.2d 793, 798 (N.D. Ill. 2013) (citing Condo v. Sysco Corp. , 1 F.3d 599, 601 n.3, 605 (7th Cir. 1993) ). However, the IMWL applies the administrative exemption "as defined by or covered by the [FLSA] and the rules adopted under that Act, as both exist on March 30, 2003. " 820 ILCS § 105/4a (emphasis added). Thus, for Facebook to prevail on summary judgment of the IMWL claim, it must establish that Plaintiff is overtime exempt under the FLSA exemptions that existed as of March 30, 2003. Zelenika v. Commonwealth Edison Co. , No. 09 C 2946, 2012 WL 3005375, at *14 (N.D. Ill. July 23, 2012).
As the Seventh Circuit explained in Kennedy v. Commonwealth Edison Company , 410 F.3d 365 (7th Cir. 2005), the old FLSA regulations had a "long test" and a "short test" to determine whether an employee fell within the administrative exception. Kennedy , 410 F.3d at 370. The short test, which applies to high salaried employees, would apply to Bigger. See id. ; 29 C.F.R. § 541.214 (2003). The short test is similar to FLSA's current bonda fide administrative capacity test, but it is not identical. For example, the short test does not specify that an employee had to exercise discretion "with respect to matters of significance," as the current test does. 29 C.F.R. § 541.200. Regulations interpreting the short test explained that "the discretion and independent judgment exercised must be real and substantial, that is, they must be exercised with respect to matters of consequence." Zelenika , 2012 WL 3005375, at *15 ; 29 C.F.R. § 541.207(d)(1) (2003). The old regulations further distinguished between the exercise of such discretion and "the use of skill in applying techniques, procedures, or specific standards." Id. Of potentially particular relevance to Bigger, the old regulations explained that "[a]n employee who merely applies his knowledge in following prescribed procedures or determining which procedure to follow ... is not exercising discretion and independent judgment within the meaning of § 541.2." See 29 C.F.R. § 541.207(c)(1) (2003); Zelenika , 2012 WL 3005375, at *15.
Defendant did not address the relevant IMWL standards in its motion, but instead assumed that the short test is identical to the bona fide administrative capacity exception in the current regulations. Even if the Court assumes these two tests are coextensive, Facebook failed to establish as a matter of law that Plaintiff was a bona fide administrative employee under the FLSA. Therefore, Facebook's Motion for Summary Judgment on the IMWL claim fails.
III. FLSA CONDITIONAL CERTIFICATION
A. Legal Standard
The FLSA authorizes employees to bring a "collective action" against an *1021employer for violations of the FLSA's overtime provisions, on behalf of themselves and other employees "similarly situated." 29 U.S.C. § 216(b). FLSA lawsuits do not proceed as traditional Rule 23 class actions. Instead, they proceed as "opt-in representative actions," or collective actions. Schaefer v. Walker Bros. Enters. , 829 F.3d 551, 553 (7th Cir. 2016) ; 29 U.S.C. § 216(b). A prospective member of the collective action may "opt-in" by filing a written consent form in the court where the action is brought; a person who does not opt-in is not part of the FLSA collective action and is not bound by the court's decision. Garcia v. Salamanca Grp., Ltd. , No. 07 C 4665, 2008 WL 818532, at *2 (N.D. Ill. Mar. 24, 2008). A district court has wide discretion to manage collective actions. Alvarez v. City of Chicago , 605 F.3d 445, 449 (7th Cir. 2010) (citation omitted).
The Seventh Circuit has not articulated a procedure for determining whether an FLSA lawsuit should proceed as a collective action. Nor has it set forth criteria for determining whether employees are "similarly situated." Pfefferkorn v. PrimeSource Health Grp., LLC , No. 17-CV-1223, 2019 WL 354968, at *2 (N.D. Ill. Jan. 29, 2019). Courts in this District, however, have used a two-step process. Id. The first step is "conditional certification," in which a plaintiff must make a "modest factual showing" that she and similarly situated employees were "victims of a common policy" that violated the FLSA. Id. At this step, Plaintiff needs only to clear a "low bar" to meet her burden. Id. (citation omitted); Howard v. Securitas Security Services, USA Inc. , No. 08 C 2746, 2009 WL 140126, at *5 (N.D. Ill. Jan. 20, 2009) ("[T]he court looks for no more than a 'minimal showing' of similarity."); Rottman v. Old Second Bancorp, Inc. , 735 F.Supp.2d 988, 990 (N.D. Ill. 2010) (finding that the similarly situated standard is a liberal one, which "typically results in conditional certification" of a collective) (citation omitted).
After the parties complete discovery, the court conducts the second, more stringent step of the inquiry. Id. at 990. At that point the court knows which employees will be part of the class and it must "reevaluate the conditional certification to determine whether there is sufficient similarity between the named and opt-in plaintiffs to allow the matter to proceed to trial on a collective basis." Id. (citation omitted). The second step imposes more demanding requirements on plaintiffs, id. , but is not yet relevant at this stage.
B. Discussion
Plaintiff seeks conditional certification of the following collective:
All individuals who were employed by Facebook as Client Solutions Managers at level IC-3 or IC-4 at any location in the United States during the period from three years prior to the entry of the conditional certification order, and as extended by stipulation of the parties, to the present.
The parties have entered into two independent tolling agreements, which extend the limitations period for the claims of prospective collective members an additional 111 days. (See Tolling Agreements, Dkt. No. 22, 34.)
1. Scope of Collective
Facebook contends that the scope of Plaintiff's proposed collective must be narrowed to exclude all individuals who had arbitration clauses and class action waivers in their employment contracts. By Facebook's estimate, at least 252 of the CSMs who Plaintiff seeks to include in her collective - over half the potential collective - executed arbitration agreements *1022and class action waivers with Facebook. (Hickman Declaration, Ex. 1 to Def.'s Resp. to Pl.'s Mot. for Cond. Cert., Dkt. No. 54-1.) Therein, Facebook alleges, the CSMs agreed to arbitrate individually all claims for "non-payment, incorrect payment, or overpayment of wages ... whether such claims be pursuant to ... any federal, state, or municipal laws concerning wages ... failure to pay wages ... and/or any other claims involving employee compensation issues." (Arbitration Agreements, Ex. A, B to Ex. 1 to Def.'s Resp. to Pl.'s Mot. for Cond. Cert.) The Supreme Court has held that district courts have discretion to implement 29 U.S.C. § 216(b) collective actions by facilitating notice to "potential plaintiffs." Hoffmann-La Roche Inc. v. Sperling , 493 U.S. 165, 169-71, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). Facebook argues that because many of the individuals in Bigger's putative collective are barred from litigating the claims at issue in her case, they are not "potential plaintiffs" and should not be sent notice.
There is inherent conflict between the "liberal federal policy favoring arbitration agreements," Epic Sys. Corp. v. Lewis , --- U.S. ----, 138 S.Ct. 1612, 1621, 200 L.Ed.2d 889 (2018) (citation omitted), and the "modest factual showing" that a plaintiff must make to obtain conditional certification under the FLSA, Pfefferkorn v. PrimeSource Health Grp., LLC , No. 17-CV-1223, 2019 WL 354968, at *2 (N.D. Ill. Jan. 29, 2019) (describing the "similarly situated" burden as a "low bar" at step one). Courts must "rigorously" enforce arbitration agreements according to their terms. Epic Sys. Corp. , 138 S.Ct. at 1621. And the Federal Arbitration Act ("FAA") provides that an arbitration clause "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2.
Federal district courts are divided over whether notice of a collective action may be sent to employees with arbitration agreements, and only one appellate court has weighed in on the issue thus far. See In re JPMorgan Chase & Co. , 916 F.3d 494, 499 n.6 (5th Cir. 2019) (collecting cases and laying out the various approaches district courts have taken on this matter). The Fifth Circuit recently held that district courts cannot send notice to an employee with a valid arbitration agreement unless the record shows that nothing in the agreement would prohibit that employee from participating in the collective action. Id. at 501. Facebook urges the Court to follow the Fifth Circuit's decision. There are several countervailing considerations, however, that lead the Court to hold otherwise.
First, Facebook has not moved the Court to compel arbitration, and it cannot do so presently. This is because Bigger, the only plaintiff in this case, did not sign an arbitration agreement. Whether parties have agreed to submit a particular dispute to arbitration is typically an issue for judicial determination. Howsam v. Dean Witter Reynolds, Inc. , 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002). In Zurich American Insurance Company v. Watts Industries , 466 F.3d 577, 580 (7th Cir. 2006), the Seventh Circuit held that a party moving to compel arbitration must show that: (1) a written agreement to arbitrate exists; (2) the dispute at issue is within the scope of that agreement; and (3) the other party has refused to arbitrate. In its response to Bigger's motion for conditional certification, Facebook asserts that these elements have been met, and its arbitration agreements are enforceable.
*1023The contracts Facebook urges the Court to enforce are between Facebook and third parties not before the Court. Federal courts cannot issue advisory opinions. Golden v. Zwickler , 394 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). Thus, Facebook's argument is premature at this stage. See Weckesser v. Knight Enterprises S.E., LLC , No. 2:16-CV-02053, 2018 WL 4087931, at *3 (D.S.C. Aug. 27, 2018) ("The potential opt-in plaintiffs allegedly subject to arbitration agreements have not yet joined this action, and the Court therefore has no ability to determine whether any potential arbitration agreement are enforceable against them.").
Second, the enforceability of arbitration contracts must be adjudicated on the merits, and the Court "does not make merits determinations" at the conditional certification stage. Briggs v. PNC Fin. Servs. Grp., Inc. , No. 15-CV-10447, 2016 WL 1043429, at *2 (N.D. Ill. Mar. 16, 2016) (citing Bergman v. Kindred Healthcare, Inc. , 949 F.Supp.2d 852, 855-56 (N.D. Ill. 2013) ). Courts have certified collective actions and sent notice to employees who signed arbitration agreements, based on the proposition that the agreements might be unenforceable. See Romero v. La Revise Assocs., L.L.C. , 968 F.Supp.2d 639, 647 (S.D.N.Y. 2013) ("[D]efendants' proposal essentially amounts to an invitation for the Court to adjudicate the validity of the arbitration agreements. But ... this sort of merits-based determination should not take place at the first stage of the conditional collective action approval process."); Hanson v. Gamin Cargo Control, Inc. , No. 4:13-CV-0027, 2013 WL 12107666, at *2 (S.D. Tex. Aug. 9, 2013) (authorizing notice because "plaintiffs do not know who is and who is not subject to [an arbitration] agreement, and have not conceded that valid and legal arbitration agreements cover the dispute at hand").
Furthermore, whether parties have an enforceable arbitration agreement, and whether that agreement covers the dispute at issue, is determined by state law principles of contract formation. Zurich , 466 F.3d at 580. The parties have not briefed which state law they believe applies to the arbitration agreements. And Facebook admits that there are two different arbitration agreements that could apply to the potential opt-in plaintiffs (Exs. A, B to Ex. 1 to Def.'s Resp. to Pl.'s Mot. for Cond. Cert.), though the Court does not know whether opt-in plaintiffs will ultimately bring in neither, one, or both of the agreements. Thus, the Court has insufficient information before it to judge the validity of the arbitration agreements.
The Court will determine whether to exclude CSMs who signed arbitration agreements at the conclusion of discovery, when it can properly analyze the validity of any arbitration agreements to which the opt-in plaintiffs may be party. See Ali v. Sugarland Petroleum , 2009 WL 5173508, at *4 (S.D. Tex. Dec. 22, 2009). At that time, Facebook may move to decertify the case or divide the class into subclasses. Nehmelman v. Penn Nat. Gaming, Inc. , 822 F.Supp.2d 745, 751 (N.D. Ill. 2011). Nothing in this Opinion should be construed as affecting Facebook's ability to seek dismissal, prior to the second stage of the two-part inquiry, of the claims of any plaintiffs with valid arbitration agreements who join the action.
Defendant next argues that Bigger's putative collective must be narrowed to exclude all CSMs who made less than $100,000 annually, as those CSMs are not sufficiently similarly situated to Bigger. Defendant's argument is premised on the fact that Bigger will be subject to the FLSA's highly compensated employee exemption, and the Court cannot use that test on CSMs who made under $100,000.
*1024See 29 C.F.R. § 541.601(c). However, "the applicability of FLSA exemptions typically is not addressed during step one of the certification analysis." Slaughter v. Caidan Mgmt. Co., LLC , 317 F.Supp.3d 981, 990 (N.D. Ill. 2018). And Plaintiffs can be similarly situated for purposes of the FLSA even when "there are distinctions in their job titles, functions, or pay." Jirak v. Abbott Labs., Inc. , 566 F.Supp.2d 845, 849 (N.D. Ill. 2008). This argument fails.
Plaintiff has made a "modest factual showing" that she and similarly situated employees were victims of a common policy that violated the FLSA. Pfefferkorn , 2019 WL 354968, at *2. Accordingly, the Court proceeds to Plaintiff's Proposed Notice to the FLSA putative collective members. (See Proposed Notice, Ex. A to Pl.'s Mot. for Cond. Cert., Dkt. No. 45-1.)
2. Form of Notice
Facebook argues that several of Plaintiff's requests regarding notice to the proposed collective are inappropriate. First, Defendant contends that Plaintiff's Proposed Notice should inform potential opt-in plaintiffs if there are circumstances in which they may have to bear costs or pay fees to Plaintiff's counsel. However, Plaintiff's counsel has assured the Court that there are "no circumstances" in which opt-in plaintiffs would need to bear costs or pay fees to Plaintiff's counsel. (Pl.'s Reply to Mot. for Cond. Cert., Dkt. No. 55.) The Court denies this requested revision.
Second, Defendant claims that sending the Proposed Notice via email, per Bigger's request, would be intrusive and unwarranted. However, this Court agrees with the many other courts that have concluded that because communication by email is "the norm," notice by email is appropriate. See Grosscup v. KPW Mgmt., Inc. , 261 F.Supp.3d 867, 880 (N.D. Ill. 2017) (collecting cases); Atkinson v. TeleTech Holdings, Inc. , No. 3:14-cv-253, 2015 WL 853234, *5 (S.D. Ohio Feb. 26, 2015) (noting that notice via both U.S. mail and e-mail to all potential opt-in plaintiffs in an FLSA action "appears to be in line with the current nationwide trend"). Particularly in this case, where the opt-in plaintiffs all work or have worked for a digital media company, using email enhances the chance that they receive notice. Plaintiff is authorized to send the Proposed Notice via email.
Third, Plaintiff requests to send a reminder notice 20 days before the end of the opt-in period to any opt-in plaintiffs who have not returned their opt-in consent forms. Defendant believes this request should be denied, arguing that a reminder notice is both unnecessary and unfair to Facebook, as it may be interpreted as the Court encouraging putative collective members to join this action. The Court agrees. A reminder is unnecessary given the adequacy of both U.S. mail and email notice and may be misinterpreted as judicial encouragement to join the lawsuit. See Witteman v. Wisconsin Bell, Inc. , No. 09-CV-440, 2010 WL 446033, at *3 (W.D. Wis. Feb. 2, 2010) ("The purpose of notice is simply to inform potential class members of their rights. Once they receive that information, it is their responsibility to act as they see fit."). The Court denies Plaintiff's request for a reminder notice.
Fourth, Defendant asks the Court to deny Plaintiff's request to post the Proposed Notice in all Facebook offices where members of the FLSA Collective are likely to view it. Defendant argues that mailed notice is adequate and posting notice in its place of business is too intrusive. Workplace postings can be overly intrusive, especially when a workplace posting is meant to supplement a mailed notice. See Howard v. Securitas Sec. Servs., USA Inc. , No. 08 C 2746, 2009 WL 140126, at *9 (N.D. Ill. Jan. 20, 2009) ;
*1025Lane v. Atlas Roofing Corp. , No. 4:11-CV-04066, 2012 WL 2862462, at *3 (C.D. Ill. July 11, 2012). To justify this sort of duplicative notification, there must be some showing that notice via both U.S. mail and email is insufficient to provide prospective members with accurate and timely notice of their potential right to join the lawsuit. Id. Plaintiff has made no such showing. The Court therefore denies her request to post the Proposed Notice in Defendant's workplace.
Subject to the modifications noted above, Plaintiff's Proposed Notice meets the requirements of "timeliness, accuracy and information." Hoffmann-La Roche , 493 U.S. at 172, 110 S.Ct. 482. The Court approves it.
IV. CONCLUSION
For the reasons stated herein, Defendant's Motion for Summary Judgment (Dkt. No. 48) is denied. Plaintiff's Motion for Conditional Certification of an FLSA collective action (Dkt. No. 45) is granted in part and denied in part as follows:
1. The Court conditionally certifies a collective action by Plaintiffs and similarly situated members of the collective pursuant to 29 U.S.C. § 216(b), defined as:
All individuals who were employed by Facebook as Client Solutions Managers at level IC-3 or IC-4 at any location in the United States during the period from three years prior to the entry of this Order, and as extended by stipulation of the parties, to the present.
2. The Court orders Facebook to produce to Plaintiff in a usable electronic format the names, last-known mailing address, email address, telephone number, dates of employment, social security numbers, and dates of birth of all FLSA Collective members to be notified. Facebook shall tender this information to Plaintiff on or before April 2, 2019.
3. The Court orders notice to the FLSA Collective in the form of her Proposed Notice. The opt-in period will be 60 days from the Notice mailing.
4. The Court authorizes Plaintiff to send the Proposed Notice, at her expense, by first-class U.S. Mail and email to all members of the FLSA Collective to inform them of their right to opt-in to this lawsuit.
5. The Court denies Plaintiff's request for a reminder notice 20 days before the conclusion of the opt-in period.
6. The Court denies Plaintiff's request to post the Proposed Notice in Facebook's offices.
IT IS SO ORDERED. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2260679/ | 238 P.3d 819 (2008)
HILL (JOAQUIN)
v.
STATE.
No. 52851.
Supreme Court of Nevada.
December 30, 2008.
Decision Without Published Opinion Dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1004853/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-1195
ARTHUR O. ARMSTRONG,
Plaintiff - Appellant,
versus
BENJAMIN S. MARKS, JR.; H. TERRY HUTCHENS;
CONNIE INVERSTINE; UC LENDING CORPORATION;
BRENDA FLINCLUM,
Defendants - Appellees.
No. 01-1316
ARTHUR O. ARMSTRONG,
Plaintiff - Appellant,
versus
OFFICER WATSON; OFFICER COOK; CHRISTINE
DUFFANY,
Defendants - Appellees.
Appeals from the United States District Court for the Middle Dis-
trict of North Carolina, at Durham. Frank W. Bullock, Jr., and
William L. Osteen, District Judges. (MISC-00-45-1, CA-97-1335-1)
Submitted: June 8, 2001 Decided: July 9, 2001
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Arthur O. Armstrong, Appellant Pro Se. Richard Thompson Wright,
Greensboro, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
In these consolidated appeals, Arthur O. Armstrong appeals
district court orders denying leave to reopen cases. In No. 01-
1195, this Court entered an order on June 4, 2001, sanctioning
Armstrong and noting that the appeal was frivolous. Accordingly,
we dismiss the appeal and deny the motion for summary judgment. In
No. 01-1316, we dismiss the appeal and deny the motions for summary
judgment, for leave to proceed in forma pauperis and to add an
additional party. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
DISMISSED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260978/ | 632 F. Supp. 17 (1986)
UNITED STEELWORKERS OF AMERICA and Its Locals 68, 7508, and 196, Plaintiffs,
v.
Raymond J. DONOVAN, Secretary of Labor, Defendant.
Court No. 83-7-00944.
United States Court of International Trade.
March 12, 1986.
*18 Bredhoff & Kaiser (James D. Holzhauer, Washington, D.C., on motion), for plaintiffs.
Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch (Sheila N. Ziff, Washington, D.C., on motion), for defendant.
ON PLAINTIFFS' MOTION FOR REVIEW OF ADMINISTRATIVE DETERMINATION UPON AGENCY RECORD
RE, Chief Judge:
In this action, plaintiffs, on behalf of former employees of the Duval Corporation, seek review of a final determination by the Secretary of Labor which denied certification of eligibility for benefits under the worker adjustment assistance program of the Trade Act of 1974, tit. II, §§ 221-249, 284, 19 U.S.C. §§ 2271-2321, 2395 (1982 & Supp. I 1983). Specifically, the Secretary found that the workers were not eligible for assistance because increases of imports did not contribute importantly to their separation from employment.
After reviewing the administrative record and the arguments of the parties, the Court holds that the determination of the Secretary is not supported by substantial evidence, and is not in accordance with law. Therefore, the case is remanded to the Secretary for further consideration not inconsistent with this opinion.
On July 6, 1982, July 28, 1982, and August 5, 1982, plaintiffs, on behalf of employees at three mining operations of Duval Corporation, filed petitions for certification of eligibility to apply for trade adjustment *19 assistance benefits. Pursuant to section 221(a) of the Trade Act of 1974, 19 U.S.C. § 2271(a), the Office of Trade Adjustment Assistance (OTAA) of the Department of Labor[1] published notices in the Federal Register stating that it had received the petitions and had instituted an investigation into their validity. 47 Fed. Reg. 31,450, 36,484 (1982).
Section 222 of the Trade Act requires the Secretary to certify a group of workers as eligible to apply for trade adjustment assistance benefits if it is determined:
(1) that a significant number or proportion of the workers in such workers' firm or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated,
(2) that sales or production, or both, of such firm or subdivision have decreased absolutely, and
(3) that increases of imports of articles like or directly competitive with articles produced by such workers' firm or an appropriate subdivision thereof contributed importantly to such total or partial separation, or threat thereof, and to such decline in sales or production.
Trade Act of 1974 § 222, 19 U.S.C. § 2272 (Supp. I 1983).
Plaintiffs contend that increased imports of copper contributed importantly to the decline of sales and production by Duval Corporation, and to the workers' separation from employment. The Secretary denied plaintiffs' petition on the grounds that it failed to satisfy the increased imports requirement of section 222. 19 U.S.C. § 2272(3).
The Secretary of Labor's Determination
The OTAA's investigation disclosed that Duval Corporation, a wholly owned subsidiary of Pennzoil Company, owns three mines in Arizona, which are known as Mineral Park, Sierrita, and Esperanza. On December 15, 1981, all three operations ceased production, and approximately 2,000 workers were separated from employment. Some workers were retained at each site and, on April 1, 1982, the Sierrita Mine resumed production at 40 percent of capacity.
The workers at all three mines were found to be engaged in both the mining of copper ore and the production of copper concentrate. Copper ore, concentrate, precipitate, and matte, are types of copper which are smelted or converted into blister copper. The record shows that statistics for the domestic production of copper ore, concentrate, precipitate, and matte are grouped under the heading "copper ore." Statistics are also provided for the later stages of processing, under the headings blister copper and refined copper. Most blister copper is cast into copper anodes for electrolytic refining. Refined copper is cast into wirebar, ingot, or other shapes for later fabrication. Duval processed between 20 and 25 percent of its copper concentrate into blister copper. All of the blister copper and the remainder of the copper concentrate produced by Duval was refined by outside companies on a toll basis.
The OTAA performed a trade and industry analysis to ascertain the effect of imports on the domestic copper industry. The investigation disclosed that imports of copper ore in 1980 increased 70.6 percent over 1979. In 1981, imports of copper ore decreased 20.6 percent to a level representing 2.7 percent of domestic production. During the first three quarters of 1982, imports of copper ore increased 338.5 percent. Imports of blister copper decreased 70.3 percent in 1979, from a 5-year high attained in 1978. In 1980, however, imports rose 88.8 percent. Imports of blister copper decreased in 1981 by 35.5 percent, and increased by 229.2 percent in 1982. The investigation also disclosed that imports of refined copper increased 107 percent in 1980 from 1979. Imports of refined copper declined by 21.8 percent in 1981 and *20 23.7 percent in 1982. The Secretary noted that an industry-wide strike of mine workers affected the total level of copper imports in 1980.
Based on these findings, the Secretary concluded that the workers should be denied certification because, "U.S. imports of refined copper declined both absolutely and relative to domestic production in 1981 compared to 1980 and in the January through September 1982 period compared to the same period in 1981." See 48 Fed. Reg. 12,006 (1983).
Thereafter, plaintiffs applied for reconsideration of the administrative determination. On April 25, 1983, the Secretary issued a notice of negative determination in response to plaintiffs' application. 48 Fed. Reg. 28,524 (1983). Subsequently, plaintiffs commenced this action seeking judicial review of the Secretary's final negative determination.
On April 30, 1984, the Court granted the Secretary's motion for a voluntary remand in order to allow the Secretary to supplement the record with a survey of Duval's customers. After reconsideration, on June 29, 1984, the Secretary issued a "further determination," which stated that the "[r]esults of the customer survey [confirmed] the Department's original determination that imports did not contribute importantly to ... worker separations at the Duval Corporation in 1982." Plaintiffs then requested this Court to set aside the Secretary's determination.
Discussion
Section 284 of the Trade Act of 1974 empowers the Court of International Trade to review a determination by the Secretary of Labor that denies certification of eligibility for adjustment assistance to assure that the determination is supported by substantial evidence and is in accordance with law. 19 U.S.C. § 2395(c); see Woodrum v. Donovan, 5 CIT 191, 193, 564 F. Supp. 826, 828 (1983), aff'd, 737 F.2d 1575 (Fed.Cir.1984). The findings of fact by the Secretary are conclusive if supported by substantial evidence. Trade Act of 1974 § 284(b), 19 U.S.C. § 2395(b) (1982). Moreover, "the rulings made on the basis of those findings [must] be in accordance with the statute and not be arbitrary or capricious, and for this purpose the law requires a showing of reasoned analysis." International Union v. Marshall, 584 F.2d 390, 396 n. 26 (D.C. Cir.1978), quoted in ILWU Local 142 v. Donovan, 9 CIT ___, Slip Op. 85-127, at 9 (Dec. 11, 1985); see 19 U.S.C. § 2273(c).
The plaintiffs urge that the Secretary's negative determination of eligibility should be set aside. First, they contend that the Secretary improperly used 1982 as a comparison year, because the workers were separated from employment in 1981, not 1982. Second, plaintiffs allege that it was improper for the Secretary to consider import statistics for the third quarter of 1982, a time period subsequent to the separation of the workers. Third, they maintain that the Secretary "erred as a matter of law in limiting his focus to refined copper," and that the Secretary should also have considered imports of copper ore and blister copper. The plaintiffs also contend, for the same reasons, that the customer survey conducted by the Secretary did not accurately reflect the effect of imports on Duval's sales.
It is well established that, in the absence of a valid reason to consider a different time period, the Secretary determines whether there has been an increase of imports by a comparison of the year of separation with the immediate preceding year. See, e.g., Paden v. United States Dep't of Labor, 562 F.2d 470, 473 (7th Cir.1977); Katunich v. Donovan, 8 CIT 157, 594 F. Supp. 744, 752 (1984). In this case, the Secretary found that there were "major layoffs" in both 1981 and 1982, and, therefore, 1982 was a base year for comparison. Plaintiffs contend that, since a significant number of workers were separated from employment in 1981, by using 1982 as a base year, the Secretary has considered an irrelevant and erroneous time period. Thus, the question presented in this case is whether the Secretary's finding that 1982, in addition to 1981, is a year *21 of separation is supported by substantial evidence in the record, and is in accordance with law.
The Secretary found that, at all three mines, major layoffs occurred in December 1981 and March, May, June, and July 1982. Duval separated approximately 2,000 workers, over 68 percent of its total work force, when the mines ceased production in December 1981. This represented an 88 percent decline in the average number of workers employed at the Mineral Park mines, a 54 percent decline at the Sierrita mine, and an 83 percent decline at the Esperanza mine. Although additional separations occurred in 1982, the number of workers affected was significantly less than in 1981. Plaintiffs contend that since the significant majority of workers were separated from employment in 1981, the Secretary should not have considered whether imports increased in 1982.
The Secretary has promulgated regulations which provide definitions relating to trade adjustment petitions. These regulations provide, in part:
"Layoff" means a suspension from pay status for lack of work initiated by the employer and expected to last for no less than seven (7) consecutive calendar days.
....
"Significant number or proportion of the workers" means that:
(a) In most cases the total or partial separations, or both, in a firm ... are the equivalent to a total unemployment of five percent (5 percent) of the workers or 50 workers, whichever is less....
29 C.F.R. § 90.2 (1985).
Surely, the 2,000 workers who were separated in December 1981 and who filed for adjustment assistance constitute a "significant number or proportion of the workers," as that phrase is defined by the Secretary. See 29 C.F.R. § 90.2 (1985). However, the record shows that the workers separated in 1982 also constitute a significant number of workers. From the record, the Court can reasonably discern that the Secretary's determination was based on an analysis of both 1981 and 1982. The workers were denied certification because the Secretary found that imports declined in both 1981 and 1982. On these facts the Court cannot say that the Secretary's choice "is not the product of a reasoned analysis evident in the administrative record." See International Union v. Marshall, 584 F.2d 390, 396 (D.C.Cir.1978). Hence, in view of the regulations promulgated by the Secretary, and the evidence contained in the record, the Court holds that the Secretary's decision to use 1982 as a base year is supported by substantial evidence in the record, and is in accordance with law.
Plaintiffs also contend that the Secretary should not have considered import statistics for the third quarter of 1982. Plaintiffs claim that this data is irrelevant to their petition because it relates to a time period subsequent to the workers' separation from employment. In addition, plaintiffs contend that the Secretary's reliance on these statistics is inconsistent with his certification of similarly situated mine workers at Kennecott Minerals Company, who were also represented by the United Steelworkers Union. The Secretary explained that the Duval workers were denied certification because data for the third quarter of 1982 became available, and the Kennecott investigation was based on data for the first 6 months of 1982. See 48 Fed.Reg. at 28,524. The Secretary did not explain, however, how the decline in imports subsequent to the Duval workers' separation was "likely to affect employment in the year of separation." Paden, 562 F.2d at 473. Hence, the Court holds that the case must be remanded so that the Secretary may articulate with reasonable clarity his reasons for considering imports after the separation of the workers. See UAW v. Marshall, 584 F.2d 390, 397 (D.C. Cir.1978); Greater Boston Television Corp. v. FCC, 444 F.2d 841, 851 (D.C.Cir. 1970), cert. denied, 403 U.S. 923, 91 S. Ct. 2229, 29 L. Ed. 2d 701 (1971); see also Camp v. Pitts, 411 U.S. 138, 143, 93 S. Ct. 1241, 1244, 36 L. Ed. 2d 106 (1973) (court may require additional explanation of reasons for agency decision).
*22 Plaintiffs also contend that the Secretary improperly restricted his focus to imports of refined copper. The Secretary, however, determined that "the proper focus of competitive impact" should be on refined copper, since that was the product most "like or directly competitive with" the articles produced by Duval.
In United Shoe Workers v. Bedell, 506 F.2d 174 (D.C.Cir.1974), the United States Court of Appeals for the District of Columbia Circuit held that component parts of an article are not "like" the imported articles which incorporate them. Id. at 177-78. The court also noted that the parties did not contend that the term "directly competitive" applied to the domestic manufacturer of component parts. Id. at 178 n. 13. Moreover, the United Shoe Workers court recognized that the terms "like" and "directly competitive" are not synonymous or explanatory of one another. Id. at 186 n. 77; see S.Rep. No. 1298, 93d Cong., 2d Sess. 121, reprinted in 1974 U.S.Code Cong. & Ad.News 7186, 7265. The court distinguished the term "like" from the term "directly competitive" by noting that "many products can be directly competitive without having identical or nearly identical physical characteristics." 506 F.2d at 185.
In the United Shoe Workers case, the court stated that Congress had "expressly redefined `directly competitive' in the Trade Expansion Act to cover items that were in different stages of processing." 506 F.2d at 186; see Trade Expansion Act of 1962 § 405(4), 19 U.S.C. § 1806(4) (1970) (current version at 19 U.S.C. § 2481(5)). The legislative history of the Trade Act of 1974 indicates that the term "like or directly competitive" was used in the same context as in the Trade Expansion Act of 1962. S.Rep. No. 1298, 93d Cong., 2d Sess. 121, reprinted in 1974 U.S.Code Cong. & Ad. News 7186, 7265; see Morristown Magnavox Former Employees v. Marshall, 671 F.2d 194, 198 (6th Cir.), cert. denied sub nom. 459 U.S. 1041, 103 S. Ct. 458, 74 L. Ed. 2d 610 (1982). The statutory definition of "directly competitive" provides:
(5) An imported article is "directly competitive with" a domestic article at an earlier or later stage of processing, and a domestic article is "directly competitive with" an imported article at an earlier or later stage of processing, if the importation of the article has an economic effect on producers of the domestic article comparable to the effect of importation of articles in the same stage of processing as the domestic article. For purposes of this paragraph, the unprocessed article is at an earlier stage of processing.
19 U.S.C. § 2481(5) (1982); see 29 C.F.R. § 90.2 (1985).
The legislative history to the Trade Expansion Act provides examples of the expanded definition of directly competitive:
Under this provision, an imported article may be considered "directly competitive with" a domestic article ... if the one is at an earlier or later stage of processing than the other, or if one is a processed and the other an unprocessed form of the same article, and if the economic effect of importation of articles is in the same stage of processing as the domestic article.
The term "earlier or later stage of processing" contemplates that the article remains substantially the same during such stages of processing, and is not wholly transformed into a different article. Thus, for example, zinc oxide would be zinc ore in a later stage of processing since it can be processed directly from zinc ore. For the same reason, a raw cherry would be a glace cherry in an earlier stage of processing, and the same is true of a live lamb and dressed lamb meat....
H.R.Rep. No. 1818, 87th Cong., 2d Sess. 24 (1962); see United Shoe Workers, 506 F.2d at 186 n. 80.
Thus, in the context of petitions filed by workers who mine ore, it is appropriate for the Secretary to consider the effects of imported ore or "the more refined imported product." See Bratt, Issues in Worker Certification and Questions of Future Direction in the Trade Adjustment *23 Assistance Program, 14 Law & Pol'y Int'l Bus. 819, 848 (1982). The cases cited by the defendant in support of the Secretary's determination are inapposite because they all involve component parts rather than articles in earlier or later stages of processing.
In this case, the Secretary limited his focus to imports of refined copper because "neither copper ore nor copper concentrate was marketed to outside customers." 48 Fed.Reg. 28,524 (1983). The statute, however, contemplates that imported articles which are not "like" the product produced by the domestic firm may nevertheless be "directly competitive with" domestic articles. Indeed, plaintiffs contend that there is "considerable cross-elasticity of demand between refined copper and other forms of copper." By focusing only on the product ultimately marketed by the workers' firm, the Secretary has, in effect, limited the scope of the statutorily defined words "directly competitive." Hence, the Court holds that the Secretary has improperly restricted his focus to articles marketed by Duval, rather than articles like or directly competitive with articles produced by Duval. Therefore, the Secretary's determination is not in accordance with law, and is vacated.
Conclusion
In light of the facts contained in the administrative record, the statute, and relevant case law, it is the holding of the Court that the Secretary of Labor's denial of certification is not supported by substantial evidence, and is not in accordance with law.
Accordingly, the determination of the Secretary of Labor is vacated, and the case is remanded to the Secretary for a redetermination of the certification of eligibility for adjustment assistance. Since the Secretary may wish to take additional evidence on matters which relate to the workers' petition, the Court notes that "the Secretary's latitude on remand extends to the full scope of his function under the Act. It is within his discretion to make a new determination, with new findings and reasons." International Union v. Marshall, 584 F.2d 390, 396 (D.C.Cir.1978). Finally, it is ordered that the Secretary shall certify the record and report to the Court the results of the further proceedings within 60 days from the date of the entry of this opinion and order.
NOTES
[1] The Director of the Office of Trade Adjustment Assistance has been delegated the responsibility for investigating adjustment assistance eligibility. 29 C.F.R. § 90.2 (1985). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260804/ | 178 N.J. Super. 216 (1981)
428 A.2d 564
STATE OF NEW JERSEY, PLAINTIFF,
v.
JOSEPH EMANUEL NUNZIATO, DEFENDANT.
Superior Court of New Jersey, Law Division Ocean County.
Decided January 30, 1981.
*217 Steven N. Cucci, Assistant Prosecutor, Ocean County, for plaintiff.
Robert A. Coogan for defendant.
ADDISON, J.S.C.
The issue raised by this motion to suppress is whether stolen merchandise found in the home of a prisoner on work release by his work release supervisor, in the prisoner's presence, can be received in evidence against him in a subsequent prosecution.
On April 14, 1980 defendant was sentenced in an unrelated matter to 364 days in the Ocean County Jail with four months suspended, given two years' subsequent probation and fined $1,000. While incarcerated he was placed in a work release program and permitted employment in the family business in Bricktown. As a condition of work release he was permitted his mid-day meal at his home one block away.
During July 1980 it came to the attention of Martin Corbo, Ocean County Sheriff's officer and defendant's work release supervisor, that certain stolen property was allegedly situated in the garage attached to defendant's home. That information was provided by Sergeant Meyers of the Sheriff's Office from an informant not known to Corbo to be reliable.
*218 Thereupon Corbo went to defendant's place of employment. That officer had not previously examined either defendant's place of employment or his residence and took this occasion to make those inspections. Corbo asked that defendant be called so that they might confer, and then accompanied defendant's wife to their home where he waited outside until defendant arrived.
When defendant appeared they entered the dwelling together and went to the attached garage where 15 skylights, subsequently determined to be stolen property, were observed. Corbo testified that defendant voluntarily granted him permission to enter the garage. Defendant denied it.
There are no reported cases in this State on point. Such decisions as exist appear to deal only with the rights of parolees, a situation not analogous here. The status of a parolee is well described in State v. Simms, 10 Wash. App. 75, 516 P.2d 1088 (App.Ct. 1974):
... The liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime. The parolee has been released from prison based on an evaluation that he shows reasonable promise of being able to return to society and function as a responsible, self-reliant person. Subject to the conditions of his parole, he can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to any restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison. [Emphasis supplied].
The status of a prisoner granted work release privileges is otherwise. Rules surround such persons with numerous restrictions. He is not permitted mail communication except through the Sheriff's Office, any social visits while outside jail on work release, taking out or carrying into jail unauthorized items, consumption of any alcoholic beverages while on work release, or leaving his place of employment except as a condition of that employment. He must permit body searches both on exiting and reentering jail each day, not use or secure drugs or prohibited medication while on work release, and obviously, not involve himself in criminal activity while outside the physical confines of the institution to which he has been committed.
*219 The federal Circuit Courts of Appeal are of two minds on the subject of warrantless searches of parolees or probationers. United States v. Bradley, 571 F.2d 787 (4 Cir.1978), and United States v. Workman, 585 F.2d 1205 (4 Cir.1978), essentially hold that although a parolee or probationer may agree as a condition of his release from incarceration to allow his supervising officer to visit his home and place of employment, that status does not automatically authorize warrantless searches of those areas by such officers.
On the other hand, U.S. ex rel. Santos v. N.Y. State Board of Parole, 411 F.2d 1216 (2 Cir.1971), cert. den. 404 U.S. 1025, 92 S.Ct. 692, 30 L.Ed.2d 676 (1972), and Latta v. Fitzharris, 521 F.2d 246 (9 Cir.), cert. den. 423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d 130 (1975), stand for the proposition that a parolee has a lesser expectation of privacy than other citizens. The standard to be applied is reasonableness of the search. These courts hold that a parolee remains in constructive custody. In Latta, the court stated:
... A California parolee is in a different position from that of the ordinary citizen. He is still serving his sentence. (Emphasis supplied). He remains under the ultimate control of his parole officer. His parole is subject to revocation for reasons that would not permit the arrest or incarceration of other persons. [at 249]
The court continued:
... We think that one of these restrictions, necessary to the effective operation of the parole system, is that the parolee and his home are subject to search by the parole officer when the officer reasonably believes that such search is necessary in the performance of his duties. The parole officer ought to know more about the parolee than anyone else but his family. He is therefore in a better position than anyone else to decide whether a search is necessary. His decision may be based upon specific facts, though they be less than sufficient to sustain a finding of probable cause. [at 250]
There is a marked contrast between the status of a parolee released from custody and a person serving a custodial sentence. A prisoner's expectation of privacy while serving his sentence is obviously far less than that of a parolee. His status as a prisoner continues wherever he may be and whatever he may be doing while serving his sentence. A prisoner on work *220 release is at all times surrounded by the invisible bars of his cell, even though he may be provisionally permitted to visit his own home. In such case Fourth Amendment rights give way to the test of reasonableness.
I therefore find that the entry into defendant's garage by Officer Corbo was reasonable and not violative of defendant's Fourth Amendment rights. Under these circumstances the defendant's consent was not necessary as a condition precedent therefor.
The motion to suppress is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260700/ | 632 F. Supp. 409 (1986)
NATIONAL MARITIME UNION OF AMERICA, AFL-CIO, et al., Plaintiffs,
v.
COMMANDER, MILITARY SEALIFT COMMAND, et al., Defendants.
Civ. A. No. 86-0089.
United States District Court, District of Columbia.
March 27, 1986.
*410 James H. Heller, Kator, Scott & Heller, Washington, D.C., for Nat. Maritime Union.
Joseph E. Kolick, Clay Warner, Dickstein, Shapiro & Morin, Washington, D.C., for Districts 1 and 3, Marine Engineers Beneficial Ass'n.
*411 Charles Flynn, Asst. U.S. Atty., Richard Haynes, John W. Rakow, Alan Mendelsohn, Duncan Hamner, Office of the Gen. Counsel, Dept. of the Navy, Military Sealift Command, Washington, D.C., for federal defendants.
Coleman S. Hicks, Newman T. Halvorson, Covington & Burling, Washington, D.C., William C. Miller, General Counsel, Lavino Shipping Co., Philadelphia, Pa., for defendant Lavino Shipping Co.
Mark Fox Evens, Keller & Heckmen, Washington, D.C., for intervenor-defendant Dist. 2, Marine Engineers Beneficial Assn.
Richard Gabriele, Schulman & Altman, New York City, Terry Yellig, Sherman, Dunn, Cohen, Leifer & Counts, P.C., Washington, D.C., for Seafarers Intern. Union of North America.
MEMORANDUM OPINION
BARRINGTON D. PARKER, Senior District Judge:
This proceeding, the third in a series of three cases dealing with the same government contract solicitation, presents a challenge to the award of a contract to operate twelve oceanographic vessels owned by defendant Military Sealift Command ("Sealift Command" or "MSC"). Plaintiffs assert that the award of the contract violated applicable provisions of the Service Contract Act of 1965 ("SCA" or "Act"), 41 U.S.C. §§ 351 et seq. (1982). The SCA establishes basic labor standards governing the award and performance of government contracts for services in excess of $2,500 where the principal purpose of the contract is to furnish services to the government through use of service employees. Plaintiffs also contend that the procedures followed after the award was made violated federal and agency procurement regulations.
Plaintiffs filed with their complaint a motion for preliminary injunction. Subsequently, all parties moved for summary judgment. For the reasons set forth below, the Court denies plaintiffs' motion for preliminary injunction as well as their motion for summary judgment. Defendants' motions for summary judgment are granted and the complaint is dismissed.
INTRODUCTION
Plaintiffs in this proceeding are three unions. Plaintiff National Maritime Union of North America, AFL-CIO ("NMU") represents unlicensed seamen on nine of the twelve ships.[1] Plaintiffs District No. 1 Pacific Coast District, MEBA, AFL-CIO ("District 1") and District No. 3 Radio Officers' Union, MEBA, AFL-CIO ("ROU") represent licensed seamen on all twelve vessels. In addition, all three unions currently represent seamen employed by Marine Transport Lines ("Marine Transport" or "MTL"), the disappointed bidder on the contract at issue here.[2] Also named as a defendant along with Sealift Command is Lavino Shipping Company ("Lavino"), the winning bidder on the contract.[3] The relationships among the parties, as well as the background of this litigation, will be further explained below.
Plaintiff unions assert three separate interests in an effort to overturn or at least suspend the procurement at issue. First, claiming to represent the interests of future Lavino employees, plaintiffs seek recission of the award as illegal insofar as it does not comply with the SCA. They contend that, because the contract did not contain a wage determination prepared by the Department of Labor ("Labor" or "DOL") specifying the minimum level of wages to be paid, the contract award was invalid. Second, plaintiffs assert that performance of the contract must at least be suspended *412 for a period of time during which civil service mariners ("CIVMARS") currently manning the ships and represented by plaintiffs could appeal the decision to contract-out the operation of the vessels to private employers. Finally, plaintiffs seek a declaration that temporary as well as permanent CIVMARS are entitled to a right of first refusal of employment with Lavino or any other winning bidder.
BACKGROUND
As mentioned previously, the matter presently before the Court is the third in a series of suits directed at the contract for operation of the twelve Sealift Command vessels. The decision to let the contract in the first instance was the result of compliance with Office of Management and Budget ("OMB") Circular A-76, which mandates that, when feasible, services that can be more cheaply performed by the private sector than in-house should be contracted-out to the lowest bidder. Implementing regulations provide that affected parties may appeal the results of the cost comparison procedure established by the Circular. Accordingly, on March 15, 1984, the Sealift Command issued a Request for Proposal ("RFP") seeking bids on the contract to be compared with the government's cost estimate. Initial offers were received on or about February 1, 1985, after which a "competitive range" was established that included Lavino, Marine Transport and one other bidder. Best and final offers were received on April 15, 1985, on the basis of which a tentative award was made to Marine Transport. Pursuant to the Navy's administrative appeal procedure, cost comparison appeals were filed by various parties interested in the procurement; all were denied on July 18, 1985. Because the original RFP did not require compliance with the provisions of the SCA, the Seafarers International Union ("SIU"), which represents unlicensed seamen on three of the twelve vessels,[4] filed suit[5] in this Court on July 29 to enjoin performance of the contract.
Subsequent to the filing of SIU's complaint, Labor notified Sealift Command that the Act did in fact apply to the solicitation and that corrective action needed to be taken. On August 9, 1985, representatives of the Departments of Justice, Labor, and the Navy met, at which time the Justice Department announced that the official government position was that the SCA applied to solicitations such as the one at issue. Accordingly, on August 16, MSC amended the solicitation (Amendment 0018), rescinding the tentative award to Marine Transport and requesting that new best and final offers be received after the completion of an SCA wage determination by the Labor Department.[6]
The wage determination that was to be incorporated into the RFP was requested from the Labor Department on August 28, 1985. At that time and again on September 30, the Sealift Command and the Department of the Navy advised Labor of the need to prepare a wage determination that reflected the current downward trend in wages being paid to seamen by the private sector. On October 4, after it was apparent that such a wage determination could not be prepared within 60 days of its request as required by the applicable regulations,[7] Military Sealift issued an additional amendment to the RFP (Amendment 0019). That amendment, together with subsequent amendments, set a date for the submission of revised best and final offers and provided that the successful bidder would be required to pay SCA wages, in accordance with the wage determination to be issued, *413 retroactive to the date of the contract award.
On the same day that Amendment 0019 was issued, Marine Transport filed suit in the District for New Jersey to enjoin resolicitation of the contract. On October 22, that proceeding, on the government's motion, was transferred to this District.[8] On November 20,[9] this Court granted defendants' motion for summary judgment and the proceeding was dismissed. Thereafter, the resolicitation proceeded apace, culminating in the award to Lavino on December 12, 1985.
As of the date of the award to Lavino, no wage determination had been announced by DOL. In addition, Sealift Command announced that there would be no new cost comparison appeals period and that only permanent CIVMARS would be entitled to exercise their rights of first refusal. Claiming that these alleged deficiencies were fatal and illegal, the plaintiffs, on January 14, 1986, filed this suit to set aside the procurement.
STANDARD OF REVIEW
Before turning to the merits of plaintiffs' case, it would be well to note the standard to be observed by the Court in gauging the propriety of defendants' conduct and what burden plaintiffs must meet in order to prevail. Our Circuit Court has made it clear that in government contracts disputes, the disappointed bidder who challenges a procurement decision
bear[s] a heavy burden of showing either that (1) the procurement official's decisions on matters committed primarily to his own discretion had no rational basis, or (2) the procurement procedure involved a clear and prejudicial violation of applicable statutes or regulations.
Kentron Hawaii, Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C.Cir.1973). A review of the contracting agency's conduct, on the other hand, should be undertaken bearing in mind two considerations that militate against overturning a government procurement. First, "the strong public interest in avoiding disruptions in procurement" must be outweighed by "an overriding public interest `in having agencies follow the regulations which control government contracting'" before judicial intervention in the process is warranted. M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1300 (D.C. Cir.1971) (quoting Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859, 864 (D.C.Cir. 1970)). Second, the Court must be cognizant of its institutional limitations in a situation in which it "is at one and the same time confronted with a number of technical procurement statutes and regulations, contract provisions and specifications, and asked to determine expeditiously whether the procurement should proceed." Id. at 1301. Those considerations, which govern the scope of review in cases brought by disappointed bidders under Scanwell Laboratories, apply equally to actions brought by unions to enforce the SCA. See, e.g., District 2, Marine Eng'rs Beneficial Ass'n v. Military Sealift Command, 89 Lab.Cas. (CCH) ¶ 33,925 at 49,288 (D.D.C.1980) (procurement decision judged by "rational basis" test).
ANALYSIS
Plaintiffs challenge the procurement at issue here on three fronts. Each of these challenges will be considered in turn, both as to plaintiffs' standing to bring their claims and as to the merits of those claims.
A. Service Contract Act Claims
1. Standing
The weight of authority seems to bear heavily against granting standing under the SCA to a union which does not represent employees of the company awarded the contract at issue. See, e.g., American Federation of Government Employees, AFL-CIO v. Stetson, 640 F.2d *414 642, 645-46 (5th Cir.1981); American Federation of Government Employees, Local 1668 v. Dunn, 561 F.2d 1310, 1312-13 (9th Cir.1977). The reasoning of those cases denying standing under the SCA is that the Act was designed to protect from substandard wages those employees of private contractors performing work previously done in house. Consequently, only the employees of the successful bidder are within the "zone of interests" protected by the Act, Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 475, 102 S. Ct. 752, 760, 70 L. Ed. 2d 700 (1982), and hence only they have standing to challenge any violations thereof. The rule limiting standing to unions that represent employees of the winning bidder has been adopted in this Circuit.[10]See, e.g., American Federation of Government Employees, Local 1872 v. Stetson, 86 Lab.Cas. (CCH) ¶ 33,819 (D.D. C.1979).
If plaintiffs are to surmount the standing requirement, they must allege that they do in fact represent employees of the successful bidder, in this case Lavino. Of the three plaintiff unions two District 1 and ROU cannot possibly make such a showing. Employees who might otherwise be represented by those unions Lavino's licensed seamen will be represented instead by District 2.[11] Which union will be representing Lavino's unlicensed seamen has not yet been determined. Consequently, NMU asserts that it most likely will represent some Lavino employees because it currently represents a portion of the CIVMARS who, by exercise of their rights of first refusal, may obtain employment with Lavino. Whether this will be so, however, is a matter of speculation. The record is unclear as to whether Lavino's unlicensed seamen are to be represented by a single union or several. If the former, even assuming that every former NMU member again choose that union as his bargaining agent, a majority of Lavino's unlicensed seamen would have to be former NMU members, having come either from MSC or from union hiring halls, in order for NMU to win a union election.[12] Even if NMU would be able to share representation with one or more other unions, it is far from certain that any Lavino employees would choose that union. Moreover, it is entirely possible that Lavino's crew may contain no former NMU members, depending upon the operation of the right of first refusal process and outside hiring patterns. NMU's interest in protecting Lavino employees is, then, the type of purely speculative interest that is insufficient to confer standing. See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 46, 96 S. Ct. 1917, 1928, 48 L. Ed. 2d 450 (1976); Warth v. Seldin, 422 U.S. 490, 507, 95 S. Ct. 2197, 2209, 45 L. Ed. 2d 343 (1975).
To the extent that plaintiffs cannot successfully assert that they represent employees or future employees of Lavino, they have no standing to bring their claims under the SCA. Not only do they not fall within the relevant "zone of interests" protected by the Act, but their interests are antithetical to those of the persons who do come within SCA protection. Plaintiffs seek to assert the interests of Lavino employees only to defeat those interests by having the contract resolicited. While in certain instances a party may achieve standing by asserting the interests of third parties, such a ploy is never allowed where the interests of those third parties will in fact be thwarted by the party seeking standing. Dunn, 561 F.2d at 1313. Wariness of such a result certainly counsels *415 against granting plaintiffs standing in this action.[13]
2. Merits
Even were lack of standing not fatal to their claims, plaintiffs would not succeed in demonstrating either that the SCA or applicable procurement regulations had been violated, or that the Sealift Command acted arbitrarily or capriciously as to matters committed to its discretion. Kentron Hawaii, Ltd., 480 F.2d at 1169.
A review of the history of this procurement, as seen against the background of the applicable regulations, does not reveal a departure from proper procurement procedure at any time. In August of 1985, once it understood the Act to cover the solicitation, Sealift Command decided to resolicit the contract, notwithstanding the prior tentative award to Marine Transport. That decision was fully consistent with the applicable regulations, see 48 C.F.R. §§ 15.606, 15.611(c) (1985), and was a proper exercise of agency discretion.[14] Although a subsequent wage determination could have been incorporated into the award, 29 C.F.R. § 4.5(c)(2) (1985); District 2, Marine Eng'rs Beneficial Ass'n v. Military Sealift Command, 89 Lab.Cas. (CCH) ¶ 33,925 (D.D.C.1980), the Navy determined instead that, because labor costs were such a significant factor in the preparation of a bid, new best and final offers had to be received in order to determine whether Marine Transport would remain the low bidder.[15] That decision was fully supported by a rational basis.
Similarly, although no wage determination has yet been prepared, the Sealift Command is free to apply a future wage determination retroactively to the contract. 29 C.F.R. § 4.5(c)(1) (1985). What distinguishes the situation at present from that facing MSC in August of 1985 is that, once the RFP was amended to put bidders on notice that SCA wage rates would apply, the bidders were in a position to adjust the wage components of their bids accordingly. Even though no wage rate had actually been set by DOL, each bidder was sufficiently familiar with the wage rates prevailing in the industry to determine with reasonable accuracy what impact SCA compliance would have on their bids.[16] It was then entirely reasonable for MSC to conclude that sufficiently accurate bids had been obtained in the resolicitation to warrant an award to Lavino even though no wage determination had yet been received.
Because the actions of the Sealift Command, both in rescinding the award to Marine Transport and granting the contract to Lavino, were consistent with applicable regulations and with the proper exercise of agency discretion, the procurement must be allowed to go forward. In addition, because there was a rational basis for those actions, plaintiffs cannot demonstrate that the government arbitrarily treated either Marine Transport or Lavino any differently. Any disparity in treatment was due only to the fact that the two companies were in fact differently situated at the relevant points in time. Accordingly, plaintiffs' SCA claims are without merit.[17]
*416 B. Denial of a Second Round of Appeals
1. Standing
As noted, all three plaintiff unions represent CIVMARS currently manning the twelve vessels. While those employees may be concerned lest the services that they are performing be unnecessarily contracted-out, OMB Circular A-76, which governs the contracting-out determination, provides no private right of action.
In American Federation of Government Employees, Local 1872 v. Stetson, 86 Lab.Cas. (CCH) ¶ 33,819 (D.D.C.1979), the court held that the purpose of Circular A-76 was as a "policy or managerial tool to aid the exercise of agencies' independent discretion." Id. at 48,851 (citations omitted). Because "[i]t does not create a rule of law, a private right of action, or confer any procedural benefits," reasoned the court, "[affected individuals] cannot fall within any `zone of interest' protected by the Circular." Id. (citation omitted). Accordingly, plaintiffs lack standing to challenge any impropriety in the cost comparison determination.
2. Merits
Plaintiff unions lack standing to enforce the provisions of Circular A-76 because those provisions do not protect any interests that plaintiffs can claim. Conversely, even if plaintiffs did have standing, they would find that Circular A-76 grants them no substantive rights that they could enforce. The applicable Department of Defense ("DOD") regulations provide that the appeals period established to challenge decisions to contract-out services cannot be used to challenge the decision to award the contract to one bidder rather than another. 32 C.F.R. § 169a.3(i)(1) (1985); 32 C.F.R. § 169a.18(a)(1)(i), 50 Fed. Reg. 40,804, 40,812-13 (Oct. 7, 1985). While the bids of Marine Transport and Lavino, both before and after resolicitation, were remarkably close, the government's bids always trailed woefully behind by some $35 million, or 44 percent. Hence, it cannot realistically be said that any further appeals would serve the purpose of challenging the initial decision to contract-out. If plaintiffs were granted a second round of appeals, which in any event would only require a brief suspension of the procurement, it would be clearly an exercise in futility. Plaintiffs have adduced no previously ignored cost factor that would suddenly permit the government to trim $35 million from its bid and overtake Marine Transport and Lavino.
Even if it were conceivable that a second round of appeals would turn up some information to cast doubt on the accuracy of the government's bid, the administration of the appeals procedure is a matter left wholly to agency discretion and is thus free from judicial scrutiny. Applicable procurement regulations provide that:
The appeals procedure is to provide an administrative safeguard to ensure that DoD Component decisions are fair, equitable, and in accordance with procedures in this part. The procedure does not authorize an appeal outside the DoD Component or a judicial review.
32 C.F.R. § 169a.18(a)(2), 50 Fed.Reg. 40,804, 40,813 (Oct. 7, 1985). Clearly, the determination to contract-out is not reviewable by the Court. If the outcome of such an appeals procedure is not reviewable, then one would think that the refusal to grant such a procedure would also be nonreviewable. Yet plaintiffs have alleged a property interest in the procedure itself, which interest they say has been "taken" by the government. The question then arises of whether, by withholding a procedure which its own regulations mandated, the government deprived plaintiffs of a property interest, an interest that may exist regardless of whether the outcome of the procedure in question would be judicially reviewable.
Because the scope of plaintiffs' interest, if any,[18] is defined by DOD and Navy regulations, *417 a finding that the Sealift Command did in fact comply with those regulations will be sufficient to answer plaintiffs' "taking" argument. The applicable DOD regulations are those found at 32 C.F.R., discussed supra. Those regulations have been incorporated by the Navy in OPNAVINST 4860.6C at 495B, which provides that the appeals process may only be used to challenge an initial determination to contract-out. In concluding that a second round of appeals would have nothing to do with such a determination, MSC may be said to have properly exercised its inherent discretion to interpret and administer its own regulations. See American Maritime Ass'n v. United States, 766 F.2d 545, 560 (D.C.Cir.1985) (citing Udall v. Tallman, 380 U.S. 1, 16, 85 S. Ct. 792, 801, 13 L. Ed. 2d 616 (1965)). Plaintiffs can ask for nothing more. Their interest in the cost comparison procedure can rise no greater than is permitted by the regulations that create that interest. See Arnett v. Kennedy, 416 U.S. 134, 152-55, 94 S. Ct. 1633, 1643-44, 40 L. Ed. 2d 15 (1974). And if those regulations limit the exercise of that interest, plaintiffs will simply have to "take the bitter with the sweet." Id. at 154, 94 S. Ct. at 1644.
In sum, even if plaintiffs had standing to challenge the denial of a second round of appeals, they would find that they are owed nothing that has not previously been granted and that nothing has been "taken" from them.
C. Right of First Refusal
1. Standing
Plaintiffs' claims arising out of MSC's denial to temporary CIVMARS of a right of first refusal with respect to Lavino employment fare no better than any of their other claims in surmounting the barrier of standing.
The regulations defining the scope of the right of first refusal are found at 32 C.F.R. § 169a. Section 169a.1, however, indicates that the provisions that follow are meant only to implement the directives of Circular A-76. And as discussed supra, that Circular provides no judicially enforceable substantive rights. It follows, then, that any regulations implementing the Circular provide no rights of action either.
2. Merits
Plaintiffs' argument that a right of first refusal must be extended to temporary CIVMARS proceeds from the premise that, because the applicable regulations and contract clauses grant that right to "any employee," the right must be accorded both temporary and permanent employees.
Applicable Federal Acquisition Regulations require that each contract subject to its provisions include a clause granting displaced employees a right of first refusal. 48 C.F.R. § 7.305(c) (1984). See also 32 C.F.R. § 169a.17(d)(4), 50 Fed.Reg. 40,804, 40,811 (Oct. 7, 1985). That clause, found at 48 C.F.R. § 52.207-3 (1985), merely requires that "[t]he Contractor shall give Government employees displaced as a result of the conversion to contract performance the right of first refusal for employment openings under the contract...." Such a clause was included in the RFP and, presumably, the contract. MSC App. at 104 (Cls. H-2, H-2.1).
Because the right of first refusal clause does not state which employees are to be granted that right, one must look elsewhere for guidance. The regulations implementing Circular A-76 define "displaced DoD employee" as "any DoD employee affected" by a decision to contract-out services. 32 C.F.R. § 169a.3, 50 Fed. Reg. 40,804, 40,805-06 (Oct. 7, 1985). Again, however, no indication is given as to what employees are meant to have that right.
Yet even if the applicable regulations might otherwise be construed to grant the right of first refusal to any employee, one must be cognizant of the fact that those regulations, for the same reason that they do not give rise to private rights of action, do not confer enforceable entitlements *418 to employment upon any class of individuals. Accordingly, the issue of who is to benefit from the right of first refusal is a matter to be decided by the contracting agency in an exercise of its discretion. The Sealift Command made precisely such a decision, and that decision is supported by a rational basis. Citing concerns that the special circumstances faced by CIVMARS generally would make it difficult for permanent CIVMARS to obtain jobs elsewhere in the government,[19] MSC requested and obtained permission from the Chief of Naval Operations to exclude temporary employees from the first refusal process. Declaration of Michelle L. Lewis ¶¶ 5-6, MSC App. at 21-22. While the Court might in the first instance weigh differently the relative needs of permanent as opposed to temporary CIVMARS, it is not for the Court to substitute its judgment for that of the agency. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S. Ct. 814, 823, 28 L. Ed. 2d 136 (1971); American Financial Services Ass'n v. Federal Trade Comm'n, 767 F.2d 957, 985 (D.C.Cir.1985). Accordingly, the decision to restrict the right of first refusal to permanent CIVMARS, supported as it was by a rational basis, must be upheld.
CONCLUSION
Plaintiffs' several challenges to the procurement at issue in this case do not survive judicial scrutiny. Plaintiffs lack standing to raise any of their claims; accordingly, none will survive a motion to dismiss. Alternatively, even if plaintiffs had standing, their claims are not meritorious and certainly not of sufficient weight to override the strong public interest in having the procurement go forward as scheduled. For this reason, and because there are no material facts in dispute, defendants are entitled to judgment as a matter of law.[20]
An appropriate Order will be entered.
NOTES
[1] Unlicensed seamen on the other three vessels are represented by Seafarers International Union ("SIU"), which has been granted leave to intervene as a party-defendant.
[2] Marine Transport is not a party to this proceeding.
[3] Lavino has signed an exclusive bargaining agreement with District 2, MEBA-AMO, AFL-CIO ("District 2"), which has been granted leave to intervene as a party-defendant.
[4] See supra note 1.
[5] Seafarers International Union v. Donnelly, et al., C.A. No. 85-2423. MTL was named a defendant in that action, while the plaintiff unions here moved to intervene as party-defendants. That case, which involved two other solicitations as well, is still pending.
[6] As a result of MSC's decision to apply the SCA to the solicitation, SIU withdrew its motion for a preliminary injunction.
[7] 29 C.F.R. § 4.4(a)(1) (1985). See discussion, infra.
[8] The action in this Court was captioned Marine Transport Lines, Inc. v. John F. Lehman, et al., C.A. No. 85-3437. SIU was granted leave to intervene as a party-defendant in that suit.
[9] Marine Transport Lines, Inc. v. Lehman, 623 F. Supp. 330 (D.D.C.1985).
[10] The D.C. Circuit has not had occasion, apparently, to examine the issue of a union's standing under the SCA, except in cases in which the union did represent employees of the winning bidder, as in International Ass'n of Machinists and Aerospace Workers, AFL-CIO v. Hodgson, 515 F.2d 373 (D.C.Cir.1975). However, there is no reason to believe that this Circuit would not follow the lead of the Fifth and Ninth Circuits.
[11] See supra note 3.
[12] NMU is, of course, competing with SIU for representation of Lavino's unlicensed mariners.
[13] It is significant that the one union that now has an exclusive bargaining agreement with Lavino, District 2, is aligned with the defendants in this proceeding. Conversely, District 1 and ROU, who will never represent Lavino employees, cannot seriously claim that they are looking out for the interests of those employees. And insofar as NMU's representation of Lavino employees is entirely speculative, that union is in no better a position in this regard than its two co-plaintiffs.
[14] Marine Transport Lines, Inc. v. Lehman, 623 F. Supp. 330, 336 (D.D.C.1985).
[15] Declaration of Frances C. Gapp ¶ 7, submitted in Marine Transport Lines v. Lehman, Civil Action No. 85-4750 (D.N.J.). That affidavit appears in plaintiffs' Appendix in support of their motion for preliminary injunction.
[16] In fact, SCA compliance evidently did have an impact on the respective bids of Marine Transport and Lavino. While those bids were initially $79.6 and $81.3 million, respectively, after resolicitation they were $81.7 and $79.8 million.
[17] Plaintiffs assert that, in awarding the contract without a wage determination, MSC was impelled by some sort of improper motive. Nothing that plaintiffs have turned up through the discovery granted them after the filing of dispositive motions lends support to that theory.
[18] The Court assumes, only for the sake of argument, that plaintiffs have demonstrated a "liberty" or "property" interest in the cost comparison procedures at issue. Such a showing, of course, must be made before one can argue that the interest in question has been "taken."
[19] The reasoning was that CIVMARS generally have a hard time finding other positions in the government where they can put their skills to work. Consequently, even if they retain rights to government employment by virtue of their reduction in force ("RIF") retention standing, they cannot obtain other government work. If temporary employees, then, were granted rights of first refusal, there would be too much competition for jobs with private contractors and, hence, permanent CIVMARS would suffer inordinately with regard to employment opportunities in both the public and private sectors.
[20] In view of the disposition of this matter as set forth in this Memorandum Opinion and accompanying Order, plaintiffs' outstanding motion to compel discovery is considered moot. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261030/ | 223 F.Supp. 887 (1963)
Kenneth M. PITMAN and Marilyn S. Pitman, his wife
v.
PAN AMERICAN WORLD AIRWAYS, INC.
Civ. A. No. 33793.
United States District Court E. D. Pennsylvania.
November 27, 1963.
*888 Milton M. Borowsky, Morris S. Finkel, Freedman, Landy & Lorry, Philadelphia, Pa., for plaintiff.
Owen B. Rhoads, and Arthur E. Newbold, III, Philadelphia, Pa., for defendant.
GRIM, District Judge.
Plaintiffs were passengers in an airplane which left Frankfurt, Germany destined for Idlewild Airport in New York with a scheduled stopover in Amsterdam, Holland. They had purchased their tickets in Frankfurt. At the Amsterdam stopover plaintiffs were injured as a result of alleged negligence of defendant, Pan American World Airways, Inc. The plaintiffs, who are citizens and residents of Arkansas, bring this suit averring diversity jurisdiction. Contending that there is no proper venue in this District because of the provisions of the Warsaw Convention, defendant has filed a motion to dismiss or in the alternative to transfer the action under 28 U.S.C.A. § 1406(a) to the Southern District of New York.
Defendant is incorporated in the state of New York and its principal place of business is there. It is conceded, however, that defendant is doing business in this District and that it has been served properly. The cause of action is based upon personal injuries and the action is transitory. Ordinarily there would be no problem of jurisdiction or venue in this type of case, but there is a problem here because the accident out of which the injuries arose occurred during the course of an international airplane flight. Therefore, the Warsaw Convention, 49 Stat. 3000 (1934) which is a treaty to which the United States is an adhering party, applies and must be considered. Article 28 of the Warsaw Convention provides:
"(1) An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court of the domicile of the carrier or of his principal place of business, or where he has a place of business through which the contract has been made, or before the court at the place of destination."
None of these four locations are in this District. (1) The domicile, the state of incorporation of the carrier is New York; (2) The principal place of business of the carrier is New York; (3) The tickets were purchased in Frankfurt, Germany and (4) The places of destination were Amsterdam, Holland and New York. Defendant contends that since none of these four locations are in the Eastern District of Pennsylvania, venue in this District is improper and, consequently, the action cannot be litigated here.
Plaintiffs contend that while the Warsaw Convention determines where damage suits resulting from accidents during international airplane flights should be litigated, it refers only to national boundaries and not to places within the boundaries of countries; thus plaintiffs argue that there is nothing in the Warsaw Convention to prevent the litigation of the present case in this District.
With this contention I agree. The Warsaw Convention was drafted in contemplation of adherence by many nations with widely divergent systems of jurisprudence and court structure. While the drafters of Article 28 apparently intended to limit the places where damage suits could be brought, it seems unlikely that they were concerned whether a suit properly brought in the United States was tried in Philadelphia rather than New York.
*889 On this point what little legislative history of Article 28 that exists is helpful. In the original drafts of the Convention, there was a fifth possible forum for suit, namely, the place of the accident.[1] At the Warsaw Conference, a British proposal to eliminate this forum was debated and eventually adopted; in speaking for the proposal the British delegate noted
"* * * that in the course of long journeys, such as the trip from London to India, you pass through countries where courts are not at all well organized. You will have very great difficulty for example in bringing suit before the courts of Persia or Mesopotamia. The carrier also would have enormous trouble in defending a case which might be brought in these far-off countries, where the courts really are not well organized * * *."[2] (Emphasis supplied)
In speaking against the proposed elimination of the place of the accident as a forum, the Greek delegate said:
"* * * Against this are raised objections that there are countries where justice is badly organized and the injured person might take advantage of this fact as a sort of blackmail. This is true, but if it is difficult for air navigation enterprises to appear in a far-off country where justice works poorly, the same difficulty confronts the injured person with even greater force * *."[3] (Emphasis supplied)
While these statements were not made in reference to the issue before this court, they do indicate that the delegates, in adopting Article 28, were thinking in terms of countries and not geographical points within national boundaries. This conclusion is reinforced by the very words of the treaty which in Article 28(2) provides:
"(2) Questions of procedure shall be governed by the law of the court to which the case is submitted."
Article 28 refers to national entities and not to geographical places within the nation.
This construction of the treaty not only is most logical but comports with a sense of fairness to the parties and convenience to the courts, and most important, renders unnecessary any finding of a conflict with congressionally established venue policies for suits brought in United States Courts.
In my opinion, the Warsaw Convention permits the present action to be brought in the United States and under United States law it can be brought in the Eastern District of Pennsylvania. The motion to dismiss and the motion to transfer must be denied.
Defendant contends that this case is controlled by Nudo v. Societe Anonyme Belge D'Exploitation De La Navigation Aerienne Sabena Belgian World Airlines, 207 F.Supp. 191 (E.D.Pa.1962). The Nudo case, however, differs from the present case in that in Nudo none of the above mentioned four conditions of the Warsaw Convention were met in the United States and construing the venue requirements to refer to countries instead of judicial districts could not have brought proper venue to the court where the litigation had been started. The defendant's domicile was Belgium. The principal place of business was Belgium. The places of destination were Brussels, Belgium and Munich, Germany. The ticket had been purchased in Munich although the flight on which the injuries were sustained originated in New York. Because of the Warsaw Convention, the Nudo case could not properly have been brought in the Eastern District of Pennsylvania *890 and the action had to be dismissed. Likewise it could not properly have been transferred to any other District in the United States. Clearly it is different from the present case.
ORDER
And now, November 27, 1963, defendant's motion to dismiss and its motion to transfer are denied.
NOTES
[1] See Art. 29 of Reporters' Combined Draft quoted in Calkins, Jr., The Cause of Action Under the Warsaw Convention. 26 Journal of Air Law and Commerce 217, 222 (1959).
[2] As quoted in Calkins, Jr., The Cause of Action Under the Warsaw Convention, 26 Journal of Air Law and Commerce 217, 229 (1959).
[3] Id. at 230. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260750/ | 632 F.Supp.2d 159 (2009)
Ronald SLUSARSKI, Plaintiff,
v.
LIFE INSURANCE COMPANY OF NORTH AMERICA, Cigna Group Insurance, and Assa Abloy, Inc. Long-Term Disability Plan, Defendants.
No. CA 08-292 S.
United States District Court, D. Rhode Island.
July 9, 2009.
*162 J. Scott Kilpatrick, Chisholm Chisholm & Kilpatrick LLP, Providence, RI, for Plaintiff.
Brooks R. Magratten, Pierce Atwood LLP, Providence, RI, for Defendants.
MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR PROTECTIVE ORDER
DAVID L. MARTIN, United States Magistrate Judge.
Before the Court are two motions for protective orders filed by Defendants Life Insurance Company of North America ("LINA"), Cigna Group Insurance,[1] and Assa Abloy, Inc. Long-Term Disability Plan (the "Plan") (collectively "Defendants"). See Defendants' Motion for Protective Order (Doc. # 12) ("First Motion"); Defendants' Motion for Protective Order (Doc. # 15) ("Second Motion") (collectively, the "Motions"). By the First Motion, Defendants seek to block the Rule 30(b)(6) deposition of LINA noticed by Plaintiff Ronald Slusarski ("Plaintiff" or "Mr. Slusarski"). See Memorandum in Support of Defendants' Motion for Protective Order ("Defendants' Mem. First Motion") at 1. By the Second Motion, Defendants seek to block discovery sought by Plaintiff via two sets of interrogatories, two sets of requests for production, and one request for admissions. See Second Motion at 1. The Court conducted hearings on the Motions on May 29 and June 18, 2009. Thereafter, it took the matters under advisement.
Facts
The Amended Complaint alleges that Plaintiff was an employee of Assa Abloy, Inc. ("Assa Abloy"), and also an employee of a subsidiary corporation, Assa Abloy Architectural Hardware, Inc. ("AAAH").[2] Amended Complaint (Doc. # 26) ¶¶ 9, 14. As a result of his employment, Plaintiff was a participant in the Plan, an employee *163 welfare benefit plan regulated by ERISA.[3]See id. ¶¶ 11, 13, 14-15. The Plan was established by Assa Abloy and maintained for the benefit of its employees and those of its numerous subsidiary and affiliated companies.[4]See id. ¶¶ 11, 13, 15. Among other features, the Plan, which was insured and administered by LINA, provided long term disability ("LTD") benefits to participants. See id. ¶ 11, 16. The Plan listed approximately twenty-two classifications under which Plan participants would fall depending on which subsidiary or affiliation of Assa Abloy was their employer. See id. ¶¶ 17, 70, 86, 87.
According to Plaintiff, he was employed as a Director of Product Development Engineering for AAAH until he became fully disabled in September, 2005, due to degenerative and progressive spinal stenosis and related symptoms. See id. ¶ 20. In August 2005, he applied for and subsequently received short term disability benefits under the Plan. See id. ¶ 21. Thereafter, Plaintiff filed for LTD benefits under the Plan and for a waiver of premium benefits on his life insurance policy. See id. ¶ 23. In April of 2006, LINA denied Plaintiff's claim for benefits. See id. ¶ 24. Plaintiff appealed LINA's denial of benefits in October of 2006. See id. ¶ 26. After several extension requests by both LINA and Plaintiff, on February 2, 2007, LINA forwarded a letter to Plaintiff, affirming the previous denials of waiver of premium benefits and LTD benefits. See id. ¶ 27.
In August 2007, Plaintiff requested a review of the denial of benefits. See id. ¶ 28. Over the next several months, Plaintiff, through his attorney, requested documents pertaining to the Plan and forwarded further medical documentation to LINA. See id. ¶¶ 31-32. Plaintiffs second appeal was completed on June 9, 2008. See id. ¶ 32. When he did not receive a determination or notice of an extension with respect to this appeal within forty-five days, Plaintiff filed this action on August 1, 2008. See id. ¶¶ 34-35.
In his Complaint (Doc. # 1), Plaintiff requested payment of LTD benefits due under the policy, waiver of premium payments from the date of disability with reimbursement for premiums paid plus interest, prejudgment interest on all benefits that accrued prior to judgment, attorney's fees, and costs of suit. See Amended Complaint ¶ 36. Within days of filing suit, Defendants reversed the previous denial and awarded benefits.[5]See id. ¶ 37. However, Plaintiff alleges that the benefits awarded "are disproportionately lower than the benefits he should receive relative to his predisability income level, and to the benefits enjoyed by other Plan participants." Id. ¶ 88.
In his Amended Complaint, Plaintiff alleges that LINA improperly classified him *164 as a Class 1 Plan participant,[6]see id. ¶ 77, that this classification resulted in the lowest possible level of benefits under the Plan, see id. ¶¶ 40, 73, and that the decision to so classify him was wrongful and contrary to Defendants' fiduciary duty to Plaintiff, see id. ¶ 79. In particular, Plaintiff complains that as a result of being placed in Class 1 his benefits are limited to $5,000.00 per month (about 43% of his predisability earnings), see id. ¶¶ 42, 75, that other classes under the Plan have substantially higher caps, such as $10,000.00 and $12,000.00, see id. ¶ 76, and that if the "Maximum Monthly Benefit" limitation contained in Class 1 had not limited his benefits, he would have been entitled to receive approximately $7,000.00 per month,[7]see id. ¶ 42. Plaintiff further complains that he has continuously met the Plan's definition of "disabled," id. ¶ 38, since the onset of his disability and that, despite this, LINA has refused to pay interest on back benefits, as well as attorney's fees and costs of suit, see id. ¶ 44.
In Count I, Plaintiff seeks interest on the disability payments which were paid retroactively. See id. ¶¶ 54-56. As support for this claim, Plaintiff states that LINA had the use of this money during the period benefits were not paid and that the payment of interest on this money would serve to make him whole. See id. ¶¶ 55-56. In Count II, Plaintiff seeks attorney's fees and costs of suit. See id. ¶ 59, 62. As support for this claim, Plaintiff states that Defendants' refusal to pay benefits until litigation commenced was wrongful and contrary to Defendants' fiduciary duty to Plaintiff. See id. ¶ 60. In Counts III and IV, Plaintiff challenges Defendants' decision to classify him as a Class 1 participant, see id. ¶¶ 77, 79, and he indicates that he seeks "Recovery of Benefits Due," id. (parenthetical subtitles appearing beneath Counts III and IV).
The Discovery Sought
Plaintiff seeks to conduct discovery regarding the following general topics: 1) why AAAH was not listed among the classes designated in the Plan, see, e.g., Defendants' Mem. First Motion, Attachment ("Att.") A (Notice to Take Deposition[8]) ¶ 4; Memorandum in Support of *165 Defendants' Motion for Protective Order ("Defendants' Mem. Second Motion"), Att. C (Plaintiff Ronald Slusarki's Interrogatories Directed to Defendant Life Insurance Company of North America a/k/a Cigna Group Insurance ("Interrogatories to LINA")), Interrogatory Number ("Interrog. No.") 9; 2) the identities of other AAAH employees and the classes under which they would be placed under the Plan, see, e.g., Defendants' Mem. First Motion, Att. A ¶ 5; Defendants' Mem. Second Motion, Att. E (Plaintiff Ronald Slusarski's Interrogatories Directed to Defendant Assa Abloy, Inc. Long-Term Disability Plan ("Interrogatories to Plan")), Interrog. Nos. 1, 2; 3) why Plaintiff was classified under the Plan as being in Class 1, see id., Interrog. No. 4; 4) whether Defendants have paid interest and/or attorneys' fees on an award of retroactive benefits, see Defendants' Mem. First Motion, Att. C, Interrog. Nos. 1-4; Defendants' Mem. Second Motion, Att. E, Interrog. Nos. 5-8; and 5) the existence of income and other incentives and disincentives at LINA with respect to encouraging the denial of claims and appeals, see Defendants' Mem. Second Motion, Att. B (Plaintiff Ronald Slusarski's Requests for Production Directed to Defendant Life Insurance Company of North America a/k/a Cigna Group Insurance ("Requests for Production to LINA")), Request No. 4.
Law
"ERISA benefit-denial cases typically are adjudicated on the record compiled before the plan administrator. Because full-blown discovery would reconfigure that record and distort judicial review, courts have permitted only modest, specifically targeted discovery in such cases." Denmark v. Liberty Life Assurance Co. of Boston, 566 F.3d 1, 10 (1st Cir.2009). Thus, "some very good reason is needed to overcome the strong presumption that the record on review is limited to the record before the administrator." Id. (quoting Liston v. Unum Corp. Officer Sev. Plan, 330 F.3d 19, 23 (1st Cir.2003)).
Where the entity that administers an employee benefit plan both determines whether an employee is eligible for benefits and pays benefits out of its own pocket, this dual role creates a structural conflict of interest. Metropolitan Life Ins. Co. v. Glenn, ___ U.S. ___, 128 S.Ct. 2343, 2348, 171 L.Ed.2d 299 (2008); see also Denmark v. Liberty Life Assurance Co. of Boston, 566 F.3d at 5 n. 2 (calling "such instances structural conflicts, in contradistinction to actual conflicts (i.e., instances in which the fiduciary's decision was in fact motivated by a conflicting interest)"). "[C]ourts are duty-bound to inquire into what steps a plan administrator has taken to insulate the decisionmaking process against the potentially pernicious effects of structural conflicts." Denmark v. Liberty Life Assurance Co. of Boston, 566 F.3d at 9.
Where the administrative record does not contain the procedures which the plan administrator has used to prevent or mitigate the effect of structural conflict, conflict-oriented discovery may be permitted to reveal those procedures. Id. at 10. However, "such discovery must be allowed sparingly and, if allowed at all, must be narrowly tailored so as to leave the substantive record essentially undisturbed." Id. But see id. at 12 (Lipez, J., concurring)("Decreeing in this case that such *166 discovery must be allowed sparingly, or confined to certain categories, is an unwarranted signal that discovery into the existence of an actual conflict is disfavored.").
Standard of Review
In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Supreme Court held that when an ERISA-regulated plan vests discretion in the plan administrator, the latter's resolution of claims must be reviewed deferentially. Denmark v. Liberty Life Assurance Co. of Boston, 566 F.3d at 5. Absent such a delegation of discretionary authority, a plan administrator's decisions are to be reviewed de novo.[9]Id. at 6. Where plan documents delegate discretionary authority to the plan administrator (whether or not structurally conflicted), courts should review benefit-denial decisions for abuse of discretion, considering any conflict as one of a myriad of relevant factors. Id. at 7.
Discussion
Plaintiff notes that before this action was filed, the only dispute was whether he was disabled. See Plaintiff's Memorandum in Support of His Opposition to Defendants' Motions for Protective Order (Doc. # 18) ("Plaintiff's Mem.") at 3. As a result, Plaintiff contends that the administrative record is incomplete "as to the three (3) principal topics on which discovery is sought: (a) proper classification; (b) payment of interest on back benefits; and (c) payment of attorney fees on claim reversals and claim reversals after litigation commenced." Id. at 4. Plaintiff maintains that his "discovery is tailored to fill these gaps in the evidentiary record."[10]Id.
Proper Classification
Plaintiff claims to have been an employee of AAAH, a subsidiary which is not included in the list of affiliates which are covered under the Plan. See Plan Doc. at 000087 (listing affiliates); see also id. at 000006-000007 (listing Classes of Eligible Employees). Defendants, on the other hand, contend that Plaintiff was an employee of Sargent Manufacturing Co., whose employees are specifically identified as Class 1 employees under the Plan. See Plan Doc. at 000006. Plaintiff argues that:
The lack of Mr. Slusarski's class designation in the policy may be an ambiguity in the policy because he could have fit into several other categories that result in greater LTD benefits, as the benefits are not artificially lowered by a $5,000.00 cap. If the Policy is ambiguous then, in accord with the doctrine of contra proferentem,[11] Mr. Slusarski *167 should receive the benefit of the lack of clarity and ambiguity in the Plan document. The Plaintiff's discovery seeks information from LINA about its decision making process and why it placed Mr. Slusarski's claim under Class # 1.
Plaintiff's Mem. at 4-5.
The Court is not persuaded by this argument. Although Plaintiff suggests that there may be an ambiguity in the Plan, in point of fact there is no ambiguity. Employees of AAAH are not mentioned in the Plan. Although Plaintiff hypothesizes that "he could have fit into several other categories that result in greater LTD benefits...," id. at 4, he does not actually contend that he falls within any of these categories. In particular, Plaintiff does not claim that Defendants should have classified him as a Class 7 employee (whose disability benefits are capped at $10,000 per month, see Plan Doc. at 000024) or a Class 17 employee (whose disability benefits are capped at $12,000 per month, see id. at 000055). Indeed, Plaintiffs failure to make such claim appears to be a tacit recognition that he does not meet the requirements for either of these classes. The Plan Doc. defines Class 7 employees as "[a]ll active, Fulltime salaried Employees of Besam Automated Entrance Systems, Inc.," Plan Doc. at 000006, and Class 17 employees as "[a]ll active, Full-time Employees of Yale Security Inc. and YSG Door Security Consultants except any person covered under a collective bargaining unit," id. at 000007. There is no suggestion by Plaintiff that he was employed by any of these entities.
Plaintiffs real complaint here is the failure of the Plan to include employees of AAAH. However, plan design does not implicate fiduciary duties under ERISA. Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 444, 119 S.Ct. 755, 763, 142 L.Ed.2d 881 (1999) ("ERISA's fiduciary duty requirement simply is not implicated where [the company], acting as the Plan's settlor, makes a decision regarding the form or structure of the Plan such as who is entitled to receive Plan benefits and in what amounts, or how such benefits are calculated."); Haberern v. Kaupp Vascular Surgeons Ltd. Defined Benefit Pension Plan, 24" F.3d 1491, 1498 (3rd Cir.1994) ("ERISA's concern is with the administration of benefit plans and not with the precise design of the plan."); id. ("[A]n employer is free to develop an employee benefit plan as it wishes because when it does so it makes a corporate management decision, unrestricted by ERISA's fiduciary duties."); Mata v. E.I. Du Pont De Nemours & Co., 456 F.Supp.2d 612, 622 (D.Del.2006) ("An employer's decisions regarding the composition or design of the plan itself, including the determinations of the form or structure of the plan, do not implicate the employer's fiduciary duties."); see also Edes v. Verizon Commc'ns., Inc., 417 F.3d 133, 140 n. 10 (1st Cir.2005) ("Plaintiffs' structural defect claim arising out of an alleged structural defect in plan design (as distinct from a structural defect in plan administration) is not cognizable under ERISA § 404."). Thus, the failure of the Plan to include employees of AAAH, the entity which *168 Plaintiff claims was his employer, does not give rise to a cause of action for breach of fiduciary duty. See Tinley v. Gannett Co., No. CIV.A.99-484 GMS, 2002 WL 531556, at *4 (D.Del. Mar. 25, 2002) (holding that company's decision to design its plan to exclude independent contractors did not breach any fiduciary duty and summary judgment for defendants was, therefore, appropriate); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 91, 103 S.Ct. 2890, 2897, 77 L.Ed.2d 490 (1983) ("ERISA does not mandate that employers provide any particular benefits, and does not itself proscribe discrimination in the provision of employee benefits."); Walther v. Pension Plan for Salaried Employees of the Dayton-Walther Corp., 880 F.Supp. 1170, 1187 (S.D.Ohio 1994) ("[A]n employer's decision to provide a less favorable plan of benefits and related decisions regarding plan design fall into the category of settlor acts and are not subject to review under the fiduciary standards of ERISA.").
Accordingly, to the extent that Plaintiff seeks to conduct discovery with respect to his classification under the Plan, the Motions are granted.[12]
Payment of Interest on Back Benefits
Plaintiff posits that "fiduciaries (LINA in this case) have an obligation to be consistent." Plaintiffs Mem. at 7 (citing 29 C.F.R. § 2560.503-1(b)(5) (2008)[13]).[14] Building on this premise, Plaintiff argues that "[i]n order to ensure that Mr. Slusarski is treated consistently with other beneficiaries with regard to interest on withheld benefits, it is necessary to know the Defendants' practice or procedure to pay, or not pay, interest on withheld benefits." Id. However, LINA's practice or procedure with respect to paying interest on withheld benefits due under other plans is certainly not relevant. LINA's obligation is to apply "plan provisions . . . consistently with respect to similarly situated claimants," 29 C.F.R. § 2560.503-1(b)(5), meaning the provisions of this Plan, not all other plans. Thus, to the extent that Plaintiff seeks discovery with respect to LINA's practice or procedure regarding payment of interest on benefits due under other plans, the Motions are granted.
As for discovery regarding LINA's practice or procedure with respect to the payment of interest on benefits due under this Plan, Defendants argue that LINA's duty is to administer claims in accordance with the governing plan documents and applicable law. See Defendants' Reply at 4; see also American Flint Glass Workers Union v. Beaumont Glass Co., 62 F.3d *169 574, 579 (3rd Cir.1995) (rejecting plaintiff's breach of fiduciary duty claim because "[t]he duty here in question is no more than the duty to administer an ERISA-covered plan in accordance with the plan's terms"); 29 U.S.C. § 1104(a).[15] Defendants note that Plaintiff is not able to point to any provision of the Plan or ERISA mandating the payment of interest on LTD benefits not paid while the claim administrator undertakes an administrative review. See Defendants' Reply at 5. Defendants accordingly contend that even if discovery revealed evidence that LINA has paid interest to other beneficiaries under the Plan, such evidence would not aid Plaintiff's case. See id. at 4.
As to this point, the Court disagrees. If discovery reveals that LINA has, under this Plan, reversed a decision denying benefits, awarded benefits retroactively, and paid interest on the benefits for the period during which they were not paid, LINA's unwillingness to do so with respect to Plaintiff would at least raise a question whether the Plan provisions have been applied consistently with respect to similarly situated claimants. In other words, LINA would not be fulfilling its duty to apply the Plan provisions consistently if it denies interest to Plaintiff on the ground that neither the Plan nor ERISA provides for the payment of such interest while paying interest to other similarly situated beneficiaries in the absence of such authority. Accordingly, to the extent that Plaintiff seeks discovery with respect to whether LINA has paid interest to other beneficiaries under the Plan where a decision denying benefits has been reversed (by LINA) and the benefits have been awarded retroactively, the Motions are denied.[16]
Payment of Attorney's Fees
With respect to Plaintiffs request for discovery on claim reversals and claim reversals after litigation commenced, the Court is not convinced that Plaintiff has shown a good reason for such discovery. The question of whether Plaintiff is entitled to an award of attorney's fees is a question of law which is determined on the administrative record. See Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220, 223 (1st Cir.1996) ("In ERISA cases the district court may grant prejudgment *170 interest in its discretion to prevailing fiduciaries, beneficiaries, or plan participants. This judicial discretion encompasses not only the over-arching question whether to award prejudgment interest at allbut also subsidiary questions that arise after the court decides to make an award, including matters such as the period and rate to be used in calculating interest."). In determining whether to award attorney's fees pursuant to 29 U.S.C. § 1132(g)(1), courts in the First Circuit apply a five factor test:
(1) the degree of bad faith or culpability of a losing party; (2) the ability of such party to personally satisfy an award of fees; (3) whether such an award would deter other persons acting under similar circumstances; (4) the amount of benefit to the action as conferred upon the members of the pension plan; and (5) the relative merits of the parties' positions.
Twomey v. Delta Airlines Pilots Pension Plan, 328 F.3d 27, 33 (1st Cir.2003).
The Court is unpersuaded that in order to apply these five factors Plaintiff needs discovery with respect to the payment of attorney's fees. Accordingly, to the extent that Plaintiff seeks such discovery, the Motions are granted.[17]
Conflict of Interest Discovery
Plaintiff also seeks discovery with respect to whether LINA had a conflict of interest with respect to its handling of claims. As benefits have now been awarded to Plaintiff (and the Court has already determined that there is no ambiguity in the Plan regarding employee classification), the only purpose for allowing such discovery would be to enable Plaintiff to search for evidence supporting his contentions that the benefits should have been awarded earlier and that he should have been paid interest on the overdue payments. While the existence of an actual conflict of interest seems improbable given LINA's ultimate decision to pay benefits, this Court reads Denmark v. Liberty Life Assurance Co. of Boston, 566 F.3d 1 (1st Cir.2009), as authorizing discovery where a "plan administrator has failed to detail its procedures ...," id. at 10. The instant case appears to fall into the category where the administrative record does not include "any evidence with respect to [LINA's] conflict-ameliorating procedures." Id. Thus, the Court concludes that it should exercise its discretion and grant some discovery on this issue. Bearing in mind that discovery on the issue of whether a structural conflict has morphed into an actual conflict "must be allowed sparingly and ... narrowly tailored so as to leave the substantive record essentially undisturbed," id., the Court grants the following discovery:
1. The Rule 30(b)(6) deposition of LINA of the person or persons most knowledgeable regarding "[t]he income and other incentives and disincentives in place at LINA and/or Cigna with respect to encouraging the denial of claims and appeals or, on the other hand[,] to encourage accurate claims and appeals determinations." Notice to Take Deposition ¶ 6;
2. Plaintiffs request for production by LINA of the following documents: "All documents evidencing income and other incentives and disincentives in place at LINA with respect to encouraging the denial of claims and appeals or, on the other *171 hand[,] to encourage accurate claims and appeals determinations." Requests for Production to LINA ¶ 4;
3. Plaintiff's request to propound the following interrogatory to LINA: "Provide all income and other incentives and disincentives in place at LINA with respect to encouraging the denial of claims and appeals or, on the other hand[,] to encourage accurate claims and appeals determinations." Interrogatories to LINA, Interrog. No. 10.
Accordingly, to the extent that the Motions seek to prevent Plaintiff from conducting the conflict of interest discovery authorized above, the Motions are denied.
Request for Admissions
Plaintiff notes that Defendants do not mention Plaintiff's Request for Admissions. See Plaintiffs Sur-Reply at 4. Plaintiff argues that answering these requests would not burden Defendants and would only serve to increase judicial efficiency. See id. In large measure, the Court agrees. LINA shall respond to the request for admissions, except that Request Nos. 31-34 are modified so that they only apply to benefits awarded under this Plan. To the extent the Motions seek to prevent LINA from having to respond to the requests for admissions as modified above, the Motions are denied.
Summary
To the extent that Plaintiff seeks discovery with respect to proper classification, payment of interest on benefits due under other plans, and attorney's fees, the Motions are granted. To the extent that Plaintiff seeks discovery with respect to: a) the payment of interest on benefits awarded under this Plan, b) LINA's policies, practices, and procedures which prevent, mitigate, or exacerbate its structural conflict, and c) the request for admissions as modified by this Memorandum and Order, the Motions are denied.
So ordered.
NOTES
[1] On June 10, 2009, Plaintiff filed an Amended Complaint (Doc. # 26) which did not include Cigna Group Insurance as a named defendant. The parties have stipulated that "Cigna Group Insurance is not a legal entity and is merely a trade name used by various insurance companies affiliated with Cigna Corp." Stipulation (Doc. # 25).
[2] Defendants deny that Plaintiff was an employee of Assa Abloy Architectural Hardware, Inc. ("AAAH"). See Answer to the Amended Complaint (Doc. # 27) ¶ 7. Defendants appear to contend that Plaintiff was employed by another entity, Sargent Manufacturing Company:
Mr. Slusarski reported to LINA that he had been employed by "Sargent Manufacturing Co./ ASSA ABLOY, Inc." and that he had been dealing with the Sargent Manufacturing Co./ ASSA Abloy, Inc. Personnel Department regarding his employee benefits. LINA communicated with the Sargent Manufacturing Company to verify Mr. Slusarski's salary. Employer information in the claim file identifies Mr. Slusarski as having worked at the Sargent Manufacturing Company location of Assa Abloy, Inc. LINA received a short term disability claim form for Mr. Slusarski from Sargent Manufacturing Co. LINA received a job description and insurance record card from Sargent Manufacturing Company. Finally, LINA was informed that Mr. Slusarski's short-term disability benefits were administered by "Sargent."
Memorandum in Support of Defendants' Motion for Protective Order ("Defendants' Mem. First Motion") at 4-5.
[3] ERISA is the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001-1461.
[4] At the May 29, 2009, hearing, the Court requested that Plaintiff's counsel provide a copy of the Assa Abloy, Inc. Long-Term Disability Plan. He subsequently did so. The Court has designated this document as a hearing exhibit, and it is cited herein as "Plan Doc."
[5] Plaintiff indicates that the benefits were awarded retroactively for the period of April 1, 2006, through July 31, 2008. See Memorandum in Support of Defendants' Motion for Protective Order ("Defendants' Mem. Second Motion"), Attachment ("Att.") A (Plaintiff Ronald Slusarski's Request for Admissions Directed to Defendant Life Insurance Company of North America A/K/A Cigna Group Insurance), Request No. 23. Short Term Disability benefits appeared to have been paid from October of 2005 though March of 2006. See id., Request No. 24.
[6] Class 1 is defined in the Plan Doc. as "All active, Full-time salaried Employees of ASSA ABLOY, Inc. (Corporate), Sargent Manufacturing Company, Assa, Inc., Essex Industries and ASSA ABLOY Sales & Marketing." Plan Doc. at 000006.
[7] According to Plaintiff:
Generally, each class was entitled to a percentage (60% or 66.7%) of earnings or the "maximum monthly benefit," whichever was less. The "maximum monthly benefit" for each class varied substantially (e.g., Class # 1 = $5,000; Class # 10 = $6,000; Class # 16 = $8,000; Class # 7 = $10,000; and Class # 17 = $12,000). Mr. Slusarski was a highly compensated employee (Director of Product Development Engineering). He was earning $140,000.00 per year. At 66.7% his benefits would be $7,781.00 per month. At 60% his benefits would be $7,000.00 per month.
Plaintiff's Memorandum in Support of His Opposition to Defendants' Motions for Protective Order (Doc. # 18) ("Plaintiff's Mem.") at 4 n. 2.
[8] Plaintiff has noticed six topics for the Rule 30(b)(6) deposition of LINA: 1) LINA's policy, practice, or procedure with respect to the payment of interest on retroactive benefits paid as a result of a claimant's successful appeal of a Long Term Disability ("LTD") denial/ termination; 2) LINA's policy, practice, or procedure where an insured does not clearly fall under a designated employee class in a LTD plan; 3) LINA's policy, practice, or procedure where an insured plan participant's salary is disproportionate to the "maximum monthly benefit" designated under the plan; 4) the reason that AAAH was not listed among the classes designated in the LTD plan at issue in this case; 5) the identities of all other Assa Abloy Architectural Hardware, Inc., employees for the past five years and the classes under which they would be placed under the LTD plan; and 6) the income and other incentives and disincentives in place at LINA with respect to encouraging the denial of claims and appeals or, on the other hand, to encourage claims and appeals determinations. See Defendants' Mem. First Motion, Att. A (Notice to Take Deposition).
[9] Defendants state that "[i]n this case, the policy directs that satisfactory proof of disability must be provided to LINA and therefore this Court's review will not be de novo, it will be deferential." Defendants' Memorandum in Reply to Plaintiff's Objection to Defendants' Motions for Protective Order (Doc. # 20) ("Defendants' Reply") at 6. Plaintiff appears to at least partially dispute this assessment. See Plaintiff's Memorandum in Support of His Opposition to Defendants' Motions for Protective Order (Doc. # 22) ("Plaintiff's Sur-Reply") at 3 (asserting that "this case is to be reviewed de novo without any deference whatsoever to LINA's `determinations' regarding Classification, Interest and Attorneys Fees"). To the extent that the parties disagree about the applicable standard of review, such disagreement does not affect the Court's resolution of the instant Motions.
[10] In a footnote to this assertion, Plaintiff states that his "Request for Admissions to LINA is intended to narrow the issues and facts in dispute to posture the case for potential summary judgment." Plaintiff's Mem. at 4 n. 1.
[11] The contra proferentem doctrine holds that the terms of an insurance policy must be strictly construed against the insurer and in favor of the insured. Stamp v. Metropolitan Life Ins. Co., 531 F.3d 84, 93 (1st Cir.2008). However, it is applicable only when courts undertake de novo review of Plan interpretations. Id.
When the administrators of a plan have discretionary authority to construe the plan, they have the discretion to determine the intended meaning of the plan's terms. In making a deferential review of such determinations, courts have no occasion to employ the rule of contra proferentem. Deferential review does not involve a construction of the terms of the plan; it involves a more abstract inquiry-the construction of someone else's construction.
Id. at 93-94.
[12] To be clear, if Plaintiff contended that he should have been classified under another specific class, for example, Class 17, the possibility that other employees of AAAH may have been classified as Class 17 employees would be highly relevant, and the Court would allow such discovery. However, as explained above, Plaintiff's complaint is that the Class under which he has been classified has limitations which he believes are unfair and inappropriate given the nature of his position. This complaint goes to plan design and not plan administration. See Edes v. Verizon Commc'ns., Inc., 417 F.3d 133, 140 n. 10 (1st Cir.2005). Thus, the Court declines to permit discovery regarding proper classification.
[13] The Court has corrected this citation from "29 C.F.R. § 2650.503-1(b)(5)," Plaintiff's Mem. at 7, to 29 C.F.R. § 2560.503-1(b)(5).
[14] 29 C.F.R. § 2560.503-1(b)(5) provides:
(5) The claims procedures contain administrative processes and safeguards designed to ensure and to verify that benefit claim determinations are made in accordance with governing plan documents and that, where appropriate, the plan provisions have been applied consistently with respect to similarly situated claimants.
29 C.F.R. § 2560.503-1(b)(5) (2008).
[15] 29 U.S.C. § 1104(a), which addresses fiduciary duties, states:
(a) Prudent man standard of care
(1) Subject to sections 1103(c) and (d), 1342, and 1344 of this title, a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and
(A) for the exclusive purpose of:
(I) providing benefits to participants and their beneficiaries; and
(ii) defraying reasonable expenses of administering the plan;
(B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims;
(C) by diversifying the investments of the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and
(D) in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter and subchapter III of this chapter.
29 U.S.C. § 1104(a) (bold added).
[16] If Plaintiff wishes to take a Rule 30(b)(6) deposition of LINA with respect to this topic, such deposition shall be taken where the witness works or resides. See Salter v. Upjohn Co., 593 F.2d 649, 651-52 (5th Cir.1979) ("It is well settled that `(t)he deposition of a corporation by its agents and officers should ordinarily be taken at its principal place of business,' especially when, as in this case, the corporation is a defendant.")(quoting 8 C. Wright & A. Miller, Federal Practice & Procedure § 2112 at 410 (1970)).
[17] Unlike interest on overdue benefits, which it is at least conceivable that Defendants might pay without court involvement, the payment of attorney's fees without court involvement is not a reasonable possibility. Thus, the argument that Plaintiff needs this discovery in order to determine whether he is being treated differently than other similarly situated beneficiaries does not apply. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260754/ | 632 F.Supp.2d 837 (2009)
UNITED STATES of America, Plaintiff,
v.
Victor Erasmo GRAMILLO-GARCIA, Defendant.
No. 09 CR 139.
United States District Court, N.D. Illinois, Eastern Division.
June 3, 2009.
Michael John Chmelar, U.S. Attorney's Office, AUSA, United States Attorney's Office, Chicago, IL, for Plaintiff.
Charles J. Aron, Attorney at Law, Chicago, IL, for Defendant.
*838 Memorandum Opinion
MILTON I. SHADUR, Senior District Judge.
Non-citizen Victor Erasmo Gramillo-Garcia ("Gramillo") has pleaded guilty to an information charging him with being found in the United States, after once having been deported (in the current vernacular "removed"), without having obtained the consent of the United States Attorney General or the Secretary of the Department of Homeland Security to his re-entry into this countrya crime that appears with some frequency on the calendars of this Court and its colleagues. Like many other aliens who confront guaranteed removal (once again) after having served whatever custodial sentences may be imposed on them, Gramillo seeks to obtain the same type of reduction in his sentence that like defendants receive in judicial districts that the Department of Justice ("DOJ") has designated for so-called "fast track" treatment.
Here are the required criteria for a district court's involvement in the fast-track prosecution program, as set out in Paragraph I of the definitive September 22, 2003 memorandum from then Attorney General John Ashcroft to all United States Attorneys:
In order to obtain Attorney General authorization to implement a "fast track" program, the United States Attorney must submit a proposal that demonstrates that:
(A): (1) the district confronts an exceptionally large number of a specific class of offenses within the district, and failure to handle such cases on an expedited or "fast-track" basis would significantly strain prosecutorial and judicial resources available in the district; or
(2) the district confronts some other exceptional local circumstances with respect to a specific class that justifies expedited disposition of such cases;
(B) declination of such cases in favor of state prosecution is either unavailable or clearly unwarranted;
(C) the specific class of cases consists of ones that are highly repetitive and present substantially similar fact scenarios; and
(D) the cases do not involve an offense that has been designated by the Attorney General as a "crime of violence." See 28 C.F.R. § 28.2 (listing offenses designated by the Attorney General as "crimes of violence" for purposes of the DNA collection provisions of the USA PATRIOT Act).
These criteria will ensure that "fast-track" programs are implemented only when warranted.
And here are the minimum requirements for a defendant's plea agreement in order to obtain the benefit of fast-track treatment (Paragraph II.B of the same Ashcroft memorandum):
B. Minimum requirements for "fast-track" plea agreement. The Defendant must enter into a written plea agreement that includes at least the following terms:
(1) The defendant agrees to a factual basis that accurately reflects his or her offense conduct;
(2) The defendant agrees not to file any of the motions described in Rule 12(b)(3), Fed.R.Crim.P.
(3) The defendant agrees to waive appeal; and
(4) The defendant agrees to waive the opportunity to challenge his or her conviction under 28 U.S.C. § 2255, except *839 on the issue of ineffective assistance of counsel.
In this instance Gramillo has complied with all of the last-quoted requirements. Where he falls short in terms of the Ashcroft memorandum, however, is that this Northern District of Illinois is not among the judicial districts that have been favored with fast-track designations.
It is scarcely surprising that our Court of Appeals, like others around the country, has addressed this issue more than once. Indeed, the per curiam opinion in United States v. Galicia-Cardenas, 443 F.3d 553, 555 (7th Cir.2006) went beyond that court's then-recent decision in United States v. Martinez-Martinez, 442 F.3d, 539 (7th Cir.2006) by vacating a defendant's sentence and requiring re-sentencing "without a credit for Wisconsin's lack of a fast-track program." But both Martinez-Martinez and Galicia-Cardenas antedated the sea change in sentencing jurisprudence wrought by the contemporaneous decisions in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) and Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)indeed, as our Court of Appeals has more recently observed in its unpublished opinion in United States v. Valadez-Martinez, 295 Fed.Appx. 832, 835 (7th Cir.2008):
The Supreme Court's decision in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), has rekindled debate about whether the absence of a fast-track program can be a factor in the choice of sentence.
What is at issue of course is the application of one of the criteria that Congress has set out in 18 U.S.C. § 3553(a) ("Section 3553(a)"), the criteria that control sentencing courts in this post-Booker era now that the Sentencing Guidelines are advisory rather than mandatory in nature. Here is that Section 3553(a)(6) consideration that is part of the still-mandatory statutory criteria:
the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.
There is no question that the fast-track program creates disparities, so that the critical issue is whether those disparities are indeed unwarranted.
To this Court's surprise our Court of Appeals, like virtually every other Court of Appeals around the country, has not spoken directly to what would seem to be the most cogent argument that a defendant about to be sentenced in this district could advance: not the differences in inter-district treatment that are reasonably called for by the considerations spelled out in the Ashcroft memorandum, but rather the wholly arbitrary extension of fast-track treatment to a number of judicial districts that do not begin to approach the requirements of that memorandum's Paragraph I(A). What justification can reasonably be asserted for the inclusion of a substantial number of the judicial districts embraced by the DOJ?
On that score, perhaps the most conspicuous among those inclusions are two districts embedded deep in this country's interiorNebraska and Utahbut a number of the other districts included in DOJ's most recent authorization memorandum also appear to flunk the requirements of the Ashcroft memorandum. As this Court's colleague, Honorable Matthew Kennelly, said in United States v. Medrano-Duran, 386 F.Supp.2d 943, 948 (N.D.Ill.2005):
If fast track programs were limited to districts that are swamped by illegal reentry cases, a decent argument perhaps could be made that Medrano-Duran is *840 not similarly situated to persons charged in those districts. But even though this may once have been the case, it is no longer. Based on the government's submission in this case, the Attorney General has approved early disposition programs in the Districts of Oregon, Idaho, Nebraska, and North Dakota, in which each Assistant United States Attorney, on average, handles only two or three illegal re-entry cases per year. And an early disposition program was also approved in the Western District of Washington, which has less than one illegal re-entry case per prosecutor per year 0.58 cases per prosecutor, to be exact, for the fiscal year 2003. See Govt. Supp. Resp. at 7 (citing data from http://www. ussc.gov/LINKTOJP.HTM). It would be difficult to describe the illegal reentry caseload in those districts as unduly burdensome, let alone overwhelming.
Just what goes on here? Nothing in the Government's Position Paper as to Sentencing Factors and Response to Defendant's Sentencing Memorandum, filed in this case, even attempts to speak to what on its face appears to be a totally unprincipled pattern of inclusion and exclusion of judicial districts by the DOJ.
One Court of Appealsnot our own has had occasion to address the concern shared by this Court in that respect. In the pre-Kimbrough case of United States v. Andújar-Arias, 507 F.3d 734, 742 (1st Cir.2007) the Court of Appeals for the First Circuit, after discussing some of the highly suspect districts embraced in the fast-track program, still held (citing Martinez-Martinez from own Court of Appeals):
We now join the other circuit courts and make that holding explicit. Because Congress has authorized fast-track programs with the understanding that such programs would create sentencing disparities, we find that such disparities are not unwarranted as a matter of law. Therefore, a sentence imposed without consideration of such disparities under § 3553(a) is not legally erroneous or, as defendant would put it, per se unreasonable. In passing the PROTECT Act, Congress determined that the benefits of maintaining high prosecution rates and relieving the case management burdens on many districts outweighed the costs of lower sentences. See, e.g., Martinez-Martinez, 442 F.3d at 542. As a court we are not in a position to second guess that determination.
But when Kimbrough (and Gall) then taught a new lesson in sentencing jurisprudence, an extraordinarily distinguished panel of that Courtthe opinion's author, Honorable Bruce Selya, Chief Judge Michael Boudin and former Chief Judge Juan Torruella[1]held in United States v. Rodriguez, 527 F.3d 221, 225:
Shortly after this court decided Andujar-Arias, the Supreme Court decided Gall and Kimbrough. These decisions, announced on the same day, shed new light on the scope of a sentencing court's discretion under an advisory guidelines regime. Collectively, they called into question a number of our earlier decisions by emphasizing the breadth of a district court's discretion to deviate from a defendant's GSR based on the compendium of sentencing factors mentioned in 18 U.S.C. § 3553(a). See Gall, 128 S.Ct. at 596-97; Kimbrough, 128 S.Ct. at 570, 575-76. Concerned that this new jurisprudence might animate an exception to the law of the circuit doctrine and undermine the rationale for excluding any consideration of fast-track disparity, we asked the parties for supplemental *841 briefs. After painstaking study, we are now persuaded that the gloss added by the Supreme Court militates in favor of a new approachan approach that requires, inter alia, abrogating our holding in AndújarArias. We elaborate below.
In the course of its thoughtful analysis, Judge Selya's opinion for the panel then observed (id. at 227):
Like the crack/powder ratio, fast-track departure authority has been both blessed by Congress and openly criticized by the Sentencing Commission. See United States Sentencing Commission, Report to the Congress: Downward Departures from the Federal Sentencing Guidelines 66-67 (2003) (criticizing fast-track programs for creating a type of geographical disparity). Like the crack/powder ratio, the fast-track departure scheme does not "exemplify the [Sentencing] Commission's exercise of its characteristic institutional role." Kimbrough, 128 S.Ct. at 575. In other words, the Commission has "not take[n] account of empirical data and national experience" in formulating them. Id. (citations omitted). Thus, guidelines and policy statements embodying these judgments deserve less deference than the sentencing guidelines normally attract. See id.
In the end, as already stated, the First Circuit overturned Andújar-Arias, distinguishing the prosecutorial and judicial roles in these terms (id. at 230):
While the decision to institute a fast-track program in a particular judicial district is the Attorney General's, the ultimate authority to grant a fast-track departure lies with the sentencing court. See USSG § 5K3.1. The appellant is not requesting that this court direct prosecutors to institute a fast-track program in the District of Puerto Rico or to offer him a fast-track plea. Rather, the appellant asks that we gauge the impact of disparate sentencing practices in crafting his sentence. Because this is an unquestionably judicial function, we discern no separation of powers concerns here.[2]
Judge Kennelly had taken account of the absence of fast-track treatment in this District to impose a lesser sentence in his Medrano-Duran case. Then later in United States v. Sanchez-Gonzalez, 08 CR 609, 2009 WL 310901 (N.D.Ill. Feb. 9, 2009), Judge Kennelly, although he stated he would have done the same thing if he believed he had the discretion to do so, found himself bound by Martinez-Martinez to do otherwise. Sanchez-Gonzalez is now on appeal, with the defendant-appellant asserting the argument (among others) that in this Court's view makes the disparity involved truly unwarranted: the conferring of fast-track benefits on defendants in judicial districts that are flat-out indistinguishable from the Northern District of Illinois in terms of the very criteria that were used to justify the fast-track program to begin with.
In fairness to Gramillo, this Court cannot await the outcome of the appeal in Sanchez-Gonzalez, for Gramillo has been in custody since mid-February and might thus end up serving more than what would otherwise be this Court's prescribed custodial sentence by the time Sanchez-Gonzalez has produced an opinion from our Court of Appeals. This memorandum opinion is accordingly being issued to explain *842 why, without of course intending any disrespect, this Court does not view the pre-Kimbrough Seventh Circuit caselaw as necessarily controlling in Gramillo's case. During the forthcoming sentencing hearing this Court expects to hear from counsel from the parties on the subject that has been explored here as well as others, and it will certainly consider the possibility of granting Gramillo some aspect of the relief that his counsel has urged in his Sentencing Memorandum.
NOTES
[1] Judge Torruella had also been a member of the Andújar-Arias panel.
[2] [Footnote by this Court] According to the DOJ's most recent authorization memorandum, the District of Puerto Rico has now been placed within the fast-track program. Once again that scarcely inspires confidence in the DOJ's implementation of the concerns that motivated the fast-track program's adoption and continuation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260756/ | 124 Cal.Rptr.2d 238 (2002)
101 Cal.App.4th 448
Craig OGBORN et al., Plaintiffs and Appellants,
v.
CITY OF LANCASTER et al., Defendants and Respondents.
No. B150712.
Court of Appeal, Second District, Division Seven.
July 22, 2002.
Review Denied October 16, 2002.
*241 Duchrow & Barker and David J. Duchrow for Plaintiffs and Appellants.
Stradling Yocca Carlson & Rauth, Douglas J. Evertz and Allison E. Burns, Newport Beach, for Defendants and Respondents.
PERLUSS, J.
Plaintiffs Craig and Kayla Ogborn sued the City of Lancaster (City) and individual city officials for various claims arising out of the City's demolition of their rented home and its contents as part of a nuisance abatement program. The trial court granted summary judgment in favor of all defendants on the ground of qualified governmental immunity. We reverse the judgment in part and affirm in part.
FACTUAL AND PROCEDURAL BACKGROUND
The Ogborns lived in a rented white stucco house on a 10-acre parcel in the City. The owner of the property, Donald Miller, Sr., also lived on the parcel in a mobile home. The exterior portions of Miller's property had for years contained large amounts of rubbish, junked vehicles and other unsightly conditions. The City ordered Miller to clean up his property and abate nuisance conditions in 1991. Miller did not comply, and the City took no further action for several years.
In January 1998 the City began an extensive nuisance clean-up program. Brian Hawley was the director of the City's Department of Community Development, charged with administering the program. Brian St. John was a code enforcement officer in the program. Miller's property (the Property) was identified as one of the properties to be cleaned up.
St. John and another code enforcement officer, Michael Tebbs, inspected the Property in March 1998 and determined that nuisance conditions existed, including abandoned and wrecked vehicles, abandoned or broken salvage materials, illegal storage areas, stagnant water and deposits of garbage and waste materials visible from the public right of way. The Ogborns' rented home, which was apparently the only structure on the Property, was described as "deteriorated." The interior of the structure was not inspected.
On April 8, 1998, Hawley advised Miller by letter that a public nuisance existed on his property, consisting of, inter alia, "a]n unsafe building or structure as defined in the Uniform Building Code." A public nuisance hearing was held on April 30, 1998, with Hawley acting as the hearing officer. *242 Miller appeared at the hearing and disputed several of the charges. As a result of the hearing, Hawley determined a nuisance existed and sent Miller a letter to that effect, headed "Order of Abatement," on May 29, 1998. The letter included photographs of the nuisance conditions and explained that he had written on the back of each photograph the actions required to abate the conditions shown.[1] It ordered Miller to "abate [the] nuisance by demolition of the structures, removal of all materials, vehicles and miscellaneous equipment as identified on each photograph and the clearing of this accumulation from your property by June 30, 1998." The letter further stated, "Failure to comply with this order will result in the City taking action to abate the nuisance."
Miller appealed Hawley's decision to the city council. On the appeal form, Miller designated three people to whom future notices regarding the matter should be sent. Neither Craig nor Kayla Ogborn was so designated.
Hawley prepared a staff report for the August 11, 1998, appeal hearing before the city council. The report noted Miller had been ordered to abate the nuisance, including "demolition of all structures," by June 30, 1998.[2] Miller appeared before the city council on August 11, 1998 and told the council he was dying of cancer and needed additional time to correct the nuisance conditions. Craig Ogborn attended the appeal hearing on August 11, 1998 and spoke on Miller's behalf. He also submitted a letter to the city council in which he stated, in part, "[i]f your plans as I understand them commence, all I have in the world will be taken from me as will my future."
After hearing Miller's appeal, the city council passed a resolution stating that the Property "exhibits conditions of public nuisances," including "dilapidated buildings and structures," which it directed the city to abate "by demolition and removal from the premises." The council did, however, extend Miller's time to abate the nuisance for 60 days from August 11, 1998. Miller died on August 28, 1998, without having taken action to abate the nuisance conditions.
On October 8, 1998 Tebbs visited the Property with demolition contractor Harold King as part of a pre-bid walkthrough. King testified that Tebbs had a conversation with Ogborn in which Ogborn was advised the demolition and clean up would take place within the next few days. However, Ogborn testified that, while he saw King on the Property on October 8, he did not see or speak to Tebbs on that occasion.
On October 12, 1998 Tebbs and St. John posted a no-entry notice on the locked front gate to the Property. The notice advised the occupants of the Property that they must be off the premises by 6:00 a.m. on October 13, 1998. The Ogborns testified they did not see the no-entry notice.
On the morning of October 13, 1998 Tebbs prepared a declaration in support of an inspection and abatement warrant and presented the declaration to Judge Randolph A. Rogers of the Los Angeles Municipal Court. Judge Rogers executed an inspection and abatement warrant, which permitted the City to enter the Property "to inspect, investigate, search and abate the public nuisance thereon." The warrant specifically authorized the City to *243 "Remove the unpermitted, unsafe and substandard structures from the property.... [¶] ... Remove derelict and inoperable vehicles, trash, debris, and discards from the yard areas of the property ... [¶] [and r]emove dead trees, leaves, branches and overgrown weeds which constitute a potential fire hazard."
While Tebbs was obtaining the warrant, St. John was briefing members of the Los Angeles County Sheriffs Department about the anticipated nuisance abatement action. At about 8:00 a.m., Tebbs, St. John and the deputies went to the Property. They forcibly removed the Ogborns from their home[3] and bulldozed the entire area, including the Ogborns' home and all their belongings.
The Ogborns sued the City, Hawley and St. John for violation of their civil rights and related claims arising out of the City's alleged failure to provide due process before destroying their home and belongings. They alleged causes of action for deprivation of civil rights under 42 United States Code section 1983 (hereinafter section 1983), conspiracy to deprive them of civil rights under 42 United States Code section 1985 (hereinafter section 1985), deprivation of civil rights pursuant to Article I, section 1 of the California Constitution, trespass and conversion.
All defendants moved for summary judgment, arguing that the Ogborns' claims were barred because (a) their home was destroyed pursuant to valid nuisance abatement procedures including the final warrant; (b) even if the warrant was invalid, defendants reasonably relied on it and so were entitled to qualified immunity; and (c) the immunities in Government Code sections 820.2 et seq.[4] protected them from liability.
The trial court granted defendants' motion, finding they were entitled to summary judgment on the ground of qualified immunity because the Ogborns' home had been destroyed pursuant to a valid warrant. The Ogborns timely appeal from the judgment.
DISCUSSION
1. Standard of Review.
The standard of review on appeal after an order granting summary judgment is well settled. "A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court's decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612, 76 Cal.Rptr.2d 479, 957 P.2d 1313.) In the trial court, once a moving defendant has `shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,' the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff `may not rely upon the mere allegations or denials *244 of its pleadings ... but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action....' (Code Civ. Proc., § 437c, subd. (o )(2); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855, 107 Cal.Rptr.2d 841, 24 P.3d 493.)" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477, 110 Cal.Rptr.2d 370, 28P.3d 116.)
In reviewing the evidence, we strictly construe the moving party's evidence and liberally construe the opposing party's and accept as undisputed only those portions of the moving party's evidence that are uncontradicted. "Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial. `Any doubts about the propriety of summary judgment ... are generally resolved against granting the motion, because that allows the future development of the case and avoids errors.' [Citation.]" (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839, 89 Cal. Rptr.2d 540; see also Katz v. Chevron Corp. (1994) 22 Cal.App.4th 1352, 1365, 27 Cal.Rptr.2d 681 ["doubts as to the propriety of granting the motion should be resolved in favor of the opposing party"].)
2. The Individual Defendants Are Entitled to Qualified Governmental Immunity.
Section 1983 provides in part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any ... person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress...." Section 1985 provides liability for those who conspire to deprive any person of his or her civil rights.[5] A plaintiff seeking to recover from a government official under these statutes must show the right in question was clearly established at the time of the alleged violation. (Davis v. Scherer (1984) 468 U.S. 183, 197, 104 S.Ct. 3012, 82 L.Ed.2d 139.) Otherwise, the doctrine of "qualified immunity" shields public employees from civil liability if they could reasonably have believed their actions were consistent with the right alleged to have been violated. (Anderson v. Creighton (1987) 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523.)
The Ogborns' first, second and third causes of action seek damages for an alleged violation of their right to due process of law before the City destroyed their property. Due process principles, under both the state and federal Constitutions, require reasonable notice and an opportunity to be heard before the government deprives a citizen of a significant property interest. (Horn v. County of Ventura (1979) 24 Cal.3d 605, 612, 156 Cal.Rptr. 718, 596 P.2d 1134; United States v. James Daniel Good Real Property (1993) 510 U.S. 43, 48, 114 S.Ct. 492, 126 L.Ed.2d 490.) The individual defendants contend they reasonably relied on the inspection and abatement warrant issued by Judge Rogers and therefore cannot be liable for *245 bulldozing the Ogborns' home and belongings even if the Ogborns' constitutional rights were violated. We agree. The warrant authorized the City to enter the Property and "to inspect, investigate, search and abate the public nuisance thereon. Specifically, the Community Development Director or his designee, through city forces or by private contractor shall enter the property to: [¶] Remove the unpermitted and unsafe structures from the property."
Both Craig and Kayla Ogborn submitted declarations in which they stated that "[a]t all times while we lived on the property, our house was habitable. The electricity, plumbing, water, and telephones were all in working order and fully functioning. The sinks, bathtub and toilet worked. There was adequate heating. There was proper ventilation. There was sufficient natural light. Electrical lighting was throughout the house. The windows were all maintained. All entries to the house were secure. There were no infestations of insects, rodents, or vermin. The house was connected to a sewage disposal system, utilizing a septic tank system. The foundation and flooring and floor supports were buckled. The ceiling and roof, along with all other supports, were adequate. No wiring problems existed. There were no broken windows; when they broke, I fixed them." While this evidence might raise a question of fact as to whether the Ogborn home was in fact "unpermitted, unsafe, and substandard," the record is clear that the nuisance proceedings that culminated in issuance of the warrant included findings that the Property contained "dilapidated buildings and structures" that constituted a nuisance. The Ogborns' home was the only "building" or "structure" on the Property. Accordingly, there is no triable issue as to whether it had been adjudged a nuisance and ordered demolished.
Although the warrant at issue is for nuisance abatement, rather than search and seizure of criminal evidence, the legal principles applicable to search warrants are instructive in this case. "Law enforcement officers are entitled to qualified immunity if they act reasonably under the circumstances, even if the actions result in a constitutional violation. [Citations.] . .. The officers who lead the team that executes a warrant are responsible for ensuring that they have lawful authority for their actions. A key aspect of this responsibility is making sure that they have a proper warrant that in fact authorizes the search and seizure they are about to conduct." (Ramirez v. Butte-Silver Bow County (9th Cir.2002) 283 F.3d 985, 990.) Here, there is no dispute that the warrant authorized the demolition of the Ogborns' home, which was, after all, the only structure on the Property. Because St. John indisputably led the team, he is entitled to qualified immunity.[6]
Hawley's participation in the demolition of the Ogborns' home was even more attenuated than that of St. John. The undisputed facts establish that Hawley conducted the initial hearing at which Miller's property was declared a public nuisance and that decision was upheld by the city council at the appeal proceeding on August 11, 1998. Hawley gave proper notice of the proceedings to the owner of the Property and his designees, and he also saw *246 Ogborn participate in the August 11 hearing and received a letter from Ogborn that could reasonably be construed as acknowledgement that the City was going to bulldoze the house. Moreover, at all relevant times, Ogborn assured Hawley that he planned to be out of the Property by mid-September at the latest. We cannot say that Hawley reasonably should have known the Ogborns' constitutional rights were violated. Accordingly, he, too, is entitled to qualified immunity.[7]
3. The "Discretionary Acts" Immunity in Section 820.2 Bars the Ogborns' Tort Claims Against Hawley, But Not Against St. John.
The doctrine of qualified governmental immunity is a federal doctrine that does not extend to state tort claims against government employees. (Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 755-756, 63 Cal.Rptr.2d 842, 937 P.2d 273 ["Governmental immunity for claims of violation of civil rights under section 1983 is not conferred expressly by statute, but is based upon a judicial gloss on section 1983," whereas "governmental immunity under California law is governed by statute."].) However, the individual defendants contend they are shielded from liability by various state statutory immunities. Section 820.2 provides: "[A] public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." We agree this section renders Hawley immune from the Ogborns' state law tort claims for trespass and conversion, but disagree as to St. John.
Johnson v. State of California (1968) 69 Cal.2d 782, 793, 73 Cal.Rptr. 240, 447 P.2d 352 (Johnson), the leading case interpreting section 820.2, held that discretionary act immunity applies only to "basic policy decisions." In Johnson, a government official placed a "`16 year old boy with homicidal tendencies'" in Mrs. Johnson's home as a foster child and failed to warn her of the child's "`dangerous propensities,'" even though the placement officer had notice of the danger. After five days in Mrs. Johnson's home, the boy assaulted and injured her. (Id. at pp. 784-785, 73 Cal.Rptr. 240, 447 P.2d 352.) Mrs. Johnson sued the state, alleging the state "`[should] have told me I was getting a boy with a criminal and delinquent background.' " (Id. at p. 785, fn. 1, 73 Cal.Rptr. 240, 447 P.2d 352.) The trial court granted summary judgment in favor of the state, on the ground the placement officer's decision whether to warn of the boy's potentially dangerous propensities was a "discretionary act" protected by section 820.2. (Id. at p. 786, 73 Cal.Rptr. 240, 447 P.2d 352.)
The Supreme Court reversed. In construing the scope of section 820.2 immunity, the Court held "[a] semantic inquiry into the meaning of `discretionary' will not suffice as a criterion for interpreting section 820.2." (Johnson, supra, 69 Cal.2d at p. 787, 73 Cal.Rptr. 240, 447 P.2d 352, italics omitted.) The Court instead analyzed the policy underlying a grant of immunity *247 to determine what conduct should be protected by section 820.2. "`Since obviously no mechanical separation of all activities in which public officials may engage as being either discretionary or ministerial is possible, the determination of the category into which a particular activity falls should be guided by the purpose of the discretionary immunity doctrine.'" (Johnson, at p. 790, 73 Cal.Rptr. 240, 447 P.2d 352, quoting Ne Casek v. City of Los Angeles (1965) 233 Cal.App.2d 131, 135, 43 Cal.Rptr. 294.)
The Court held section 820.2 provides immunity for "basic policy decisions," but not "for the ministerial implementation of that basic policy." (Johnson, supra, 69 Cal.2d at p. 796, 73 Cal.Rptr. 240, 447 P.2d 352.) The Court explained this distinction might also be characterized as "between the `planning' and `operational' levels of decision-making." (Id. at p. 794, 73 Cal. Rptr. 240, 447 P.2d 352.) It noted "[a] any wider judicial review ... would place the court in the unseemly position of determining the propriety of decisions expressly entrusted to a coordinate branch of government." (Id. at p. 793, 73 Cal.Rptr. 240, 447 P.2d 352.)
Using this analysis, the Court held the decision to place the boy in the Johnsons' home was a "basic policy decision," but the decision whether to warn them of his violent propensities was ministerial. (Johnson, supra, 69 Cal.2d at p. 786, 73 Cal.Rptr. 240, 447 P.2d 352.) "[Although a basic policy decision (such as standards for parole) may be discretionary and hence warrant governmental immunity, subsequent ministerial actions in the implementation of that basic decision still must face case-by-case adjudication on the question of negligence." (Id. at p. 797, 73 Cal.Rptr. 240, 447 P.2d 352.)
In this case, Hawley's actions were unquestionably "discretionary" as that term is defined in Johnson, supra, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352. The Ogborns alleged in their complaint that Hawley was the director of the Department of Community Development, which was charged with administering the City's nuisance abatement program. Hawley conducted the initial hearing at which Miller's property was declared a public nuisance, and he sent a letter to Miller to that effect on May 29, 1998. There is no allegation and no evidence that he participated in any way in obtaining the warrant or bulldozing the Ogborns' home. To the contrary, it is undisputed that Hawley was out of state on vacation from October 9 to October 19, 1998. In short, Hawley's participation in this matter was limited to making the discretionary policy decision to declare the Property a nuisance. Accordingly, section 820.2 bars the Ogborns' trespass and conversion claims against him.
By contrast, the evidence establishes that St. John actively participated in the implementation of the nuisance abatement program with respect to the Property. He was present at the Property on October 13, 1998, and personally gave the order for the bulldozer to demolish the Ogborns' house. These actions constituted "subsequent ministerial actions in the implementation of the basic decision" to declare the Property a nuisance, and thus section 820.2 does not bar the Ogborns' tort claims against St. John.
4. Section 821.8 Bars the Ogborns' Trespass Claim Against St. John.
Section 821.8 provides that public employees are not liable for an entry onto property where the entry is under the express or implied authority of law. This immunity provision bars the Ogborns' claim for trespassing because the warrant *248 clearly authorized entry onto the Property and into the structures located there. However, this immunity provision does not bar the Ogborns' claim for conversion of their belongings, which were not within the scope of the warrant.
5. The Other Cited Statutory Immunities Do Not Bar the Ogborns' Conversion Claim Against St. John.
Section 822.2 provides, "A public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice." One of the allegations in the complaint is that Tebbs misled Judge Rogers by omitting references to the Ogborns' occupancy of the Property in the affidavit submitted in support of the warrant. However, the Ogborns' tort claims are for trespass and conversion, not fraud or misrepresentation. The gravamen of the claims is breach of defendants' duty to provide notice and a hearing before entering and destroying the Ogborns' home and belongings. (Tallmadge v. County of Los Angeles (1987) 191 Cal.App.3d 251, 254, 236 Cal.Rptr. 338 [conversion claim based on failure to provide due process is not barred by § 822.2].) At the very least, there is a question of fact as to whether a misrepresentation "caused" the Ogborns' injury. Therefore, summary judgment based on section 822.2 is not appropriate.
Section 820.4 provides, "A public employee is not liable for his act or omission exercising due care, in the execution or enforcement of any law." Because the warrant expressly authorized St. John to enter the Ogborns' home, he is entitled to immunity under section 820.4 with respect to their claim for trespass. However, this statute does not support summary judgment as to the Ogborns' conversion claim because a question of fact exists as to whether St. John's reliance on the warrant constituted "due care" with respect to the handling of the Ogborns' personal property. The Ogborns presented evidence that St. John stymied their efforts to save their personal property, and a trier of fact could find he failed to exercise due care when he ordered the bulldozers to go ahead without giving the Ogborns a chance to retrieve their belongings.
Section 821.6 provides that public employees are "not liable for injury caused by ... instituting or prosecuting any judicial or administrative proceeding within the scope of his [or her] employment, even if [they] act[ ] maliciously and without probable cause." Defendants argue the nuisance abatement process was an administrative proceeding, and therefore this immunity bars the Ogborns' tort claims. Certainly, this section would apply to Hawley's actions in instituting and prosecuting the nuisance proceedings. However, it does not bar the conversion claim against St. John.
Section 821.6 immunity is intended to prevent malicious prosecution actions against government officials and does not apply where, as here, the tort complained of occurred after the judicial or administrative proceeding has been completed. (Tallmadge v. Los Angeles County, supra, 191 Cal.App.3d at pp. 253-255, 236 Cal.Rptr. 338 [section 821.6 does not bar claim for conversion of weapons seized when plaintiff was arrested for unlawful possession of weapons].) In this case, the Ogborns do not complain that St. John acted improperly with respect to the proceedings that declared the Property a nuisance. Their complaint is that their belongings, which were not a part of those proceedings, were tortiously destroyed. Therefore, section 821.6 does not support *249 the summary judgment on the Ogborns' conversion claim.
6. The Trial Court Erred in Granting Summary Judgment in Favor of the City on the First, Second and Fourth Causes of Action.
The trial court concluded, without citation to authority, that the City was entitled to qualified governmental immunity to the same extent as the individual defendants. This was error. The federal qualified immunity defense protects individual officers, not municipalities or other governmental entities subject to suit under sections 1983 and 1985. (Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit (1993) 507 U.S. 163, 166, 113 S.Ct. 1160, 1162, 122 L.Ed.2d 517, 523; Owen v. City of Independence (1980) 445 U.S. 622, 638, 100 S.Ct. 1398, 1409, 63 L.Ed.2d 673, 685-686.)
The City, of course, cannot be held liable under section 1983 for an injury caused solely by its agents or employees in the absence of a City policy, official decision or custom. (Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611, 638; Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 881, 271 Cal.Rptr. 513.) However, the City did not move for summary judgment on the ground that the Ogborns' injuries were not the result of an official City act. To the contrary, the City acknowledges the city council passed a resolution finding the Property to be a nuisance and ordering its abatement. "Local governmental entities '"can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where ... the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted...."' [Citations.]" (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1147, 119 Cal. Rptr.2d 709, 45 P.3d 1171.) In its motion for summary judgment, the City failed to establish the Ogborns could not "`demonstrate a direct causal link between the municipal action and the deprivation of federal rights.'" (Ibid.) Accordingly, it was error to grant summary judgment in favor of the City on the Ogborns' due process claims.[8] At the very least, triable issues of fact remain on this issue.
Finally, the City argues it is not liable for an injury resulting from an act or omission of an employee where the employee is immune from liability under state law. (§ 815.2, subd. (b); Masters v. San Bernardino County Employees Retirement Assn. (1995) 32 Cal.App.4th 30, 39-40, 37 Cal.Rptr.2d 860.) Because the Ogborns' trespass claim is barred by the statutory immunity in section 821.8 as to the *250 individual defendants, it is also barred as to the City. However, as discussed above, the City may still be liable for conversion because St. John is not immune from liability on that claim.[9]
DISPOSITION
The judgment of the trial court is affirmed as to Brian Hawley. The judgment as to Brian St. John and the City is reversed. On remand, the trial court is directed to vacate its order granting summary judgment in favor of St. John and the City and to enter a new and different order granting in part St. John's alternative motion for summary adjudication of issues as to the first, second, third and fifth causes of action only and granting in part the City's alternative motion for summary adjudication of issues as to the third and fifth causes of action only and thereafter to conduct further proceedings not inconsistent with this opinion. The Ogborns shall recover their costs on appeal from the City. Hawley shall bear his own costs on appeal.
We concur: LILLIE, P.J., and WOODS, J.
NOTES
[1] While the letter and photocopies of the photographs are part of the record on appeal, the record does not contain copies of any writing on the back of the photographs.
[2] Ogborn admitted he saw this report at the city council hearing or immediately afterwards.
[3] Craig Ogborn was arrested on an outstanding warrant and placed in a police patrol car. His request to reenter the house and retrieve his belongings was denied, and he ultimately asked St. John to retrieve only his "medicine and money." Kayla Ogborn was removed from the house at gunpoint and transported to the Antelope Valley Hospital for admission as a mentally disordered person under Welfare and Institutions Code section 5150. She was discharged immediately after seeing a doctor and returned to the scene before the bulldozing actually took place.
[4] All further statutory references are to the Government Code unless otherwise indicated.
[5] The parties, like the trial court, assume without citation of authority that the qualified immunity analysis for section 1983 claims applies equally to the Ogborns' section 1985 claim and their purported cause of action for violation of the California Constitution. That assumption appears correct. (See, e.g., Zisk v. City of Roseville (1976) 56 Cal.App.3d 41, 50-51 & fn. 3, 127 Cal.Rptr. 896. [applying same standard of immunity to claims under sections 1983 and 1985 and observing that California's standard of immunity would produce a "similar result"].)
[6] St. John would also be entitled to qualified immunity even if he were a "line officer" rather than the "team leader." (Ramirez v. Butte-Silver Bow County, supra, 283 F.3d at p. 990 ["Line officers, on the other hand, are required to do much less. They do not have to actually read or even see the warrant: they may accept the word of their superiors that they have a warrant and that it is valid."].)
[7] As an alternative to its qualified immunity defense, the City contends the Ogborns did in fact receive due process before their home and belongings were bulldozed. However, triable issues of fact exist as to whether they had adequate notice and an opportunity to respond. The Ogborns deny having actual notice that their home would be bulldozed before they had a chance to remove their belongings. Moreover, there is evidence the City failed to comply with Health and Safety Code section 17980, which requires notice to tenants when nuisance abatement proceedings are instituted with respect to a residential building.
[8] Although the Ogborns' sections 1983 and 1985 claims against the City must be reinstated at this point, there is no cognizable damage action under the California Constitution for alleged deprivation of property without due process (Carlsbad Aquafarm, Inc. v. State Dept. of Health Services (2000) 83 Cal.App.4th 809, 818, 100 Cal.Rptr.2d 87), at least when alternative damage remedies are available, as they are in this case. (Bonner v. City of Santa Ana (1996) 45 Cal.App.4th 1465, 1477, 53 Cal.Rptr.2d 671 [right to sue city for conversion is an effective alternative judicial remedy precluding direct cause of action for violation of the due process clause of the state Constitution].) This purely legal issue is properly decided on appeal from the trial court's decision granting summary judgment, since we are obligated to examine the facts independently and determine their effect as a matter of law. (Bialo v. Western Mutual Ins. Co. (2002) 95 Cal.App.4th 68, 76, 115 Cal.Rptr.2d 3.)
[9] The Ogborns' evidentiary objections relate to evidence that would not change our decision. Accordingly, we do not address them. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260758/ | 632 F.Supp. 1056 (1986)
Pamela Brown PONTON, Plaintiff,
v.
NEWPORT NEWS SCHOOL BOARD, et al., Defendants.
Civ. A. No. 85-0064-NN.
United States District Court, E.D. Virginia, Newport News Division.
March 19, 1986.
*1057 *1058 Judy Bennett Spencer, The Hilton Law Group, Newport News, Va., Willafay McKenna, Peninsula Legal Aid Center, Hampton, Va., for plaintiff.
Phillips M. Dowding, Robert V. Beale, City Atty., Leonard A. Wallin, II, Asst. City Atty., City of Newport News, Newport News, Va., for defendants.
MEMORANDUM
MERHIGE, District Judge.
Plaintiff, Pamela Brown Ponton, a teacher in the Newport News Public School System, has filed this action against the Newport News School Board and various employees of the Newport News Public School System. Plaintiff alleges that the defendants violated her rights by forcing her to take a leave of absence from her teaching position because she was single and pregnant. Plaintiff contends that this coerced leave constituted a violation of her constitutional rights to equal protection, privacy and due process and her statutory rights under 42 U.S.C. §§ 1981 and 1983, 20 U.S.C. § 1681 (Title IX of the Education Amendments of 1972) and 42 U.S.C. § 2000e et seq. (Title VII of the Civil Rights Act of 1964).
The matter has been tried before the Court and is accordingly ripe for disposition.[1]
I. FACTS
Plaintiff was hired by the Newport News School Board in January, 1982 to teach vocational home economics at the Vocational *1059 Education Magnet School in Newport News, Virginia. Plaintiff was single at the time.
In May of 1983, plaintiff, then unmarried, learned that she was pregnant. Plaintiff notified her superior, Lettie Booker, of her condition, but did not at that time notify the Personnel Department.
On June 11, 1983, plaintiff signed a contract with the Newport News School Board providing for her continued employment at her school for the 1983-84 school year. Such employment was to commence on August 30, 1983.
In the early part of August, 1983, Booker inquired of plaintiff if she had gotten married. Plaintiff informed Booker that she had not. Booker advised plaintiff that plaintiff should discuss her situation with the Personnel Department.
Plaintiff contacted Crawford Smith in the Personnel Department, who informed plaintiff that the School System dealt with such situations by giving the pregnant teacher three options: (1) get married, (2) take a leave of absence, or (3) resign. Mr. Smith, who at the time had the responsibility to recruit and staff middle schools, referred the plaintiff to Hattie Webb, who was the Personnel Coordinator for the Newport News School District and was responsible for granting leaves.
Plaintiff told Booker of the three options that Smith had communicated to her and Booker again advised plaintiff that she should contact the Personnel Department to see if there was anything they could do to help. Plaintiff stated that she did not feel there was any need for her to go to Personnel, whereupon Booker replied that she would contact the Personnel Department herself.
On or about August 23, 1985, plaintiff received a phone call from defendant Hattie Webb. Webb told plaintiff that she had heard rumors that plaintiff was pregnant, and that if plaintiff failed to come in for an interview, plaintiff would no longer be teaching. A meeting between Webb and plaintiff was scheduled for August 25.
Webb told plaintiff at the August 25 meeting that plaintiff would not be allowed to teach while she was single and pregnant as such a situation would set a bad example for plaintiff's students. When plaintiff asked what would happen if she refused to accept Webb's decision, Webb replied that she would take the matter up with Wiley Waters, her superior, who in turn would go to the School Board. Webb suggested that plaintiff take a parental leave of absence. Parental leave is characterized by School Board policy as a Category B type leave of absence. A teacher returning from a Category B leave of absence is not guaranteed her former assignment, but will instead be placed in a situation for which she is certified and qualified when such a vacancy appears.
Married pregnant teachers, unlike unmarried pregnant teachers, are given the option of taking a disability leave, which is a Category A type leave. Under this type of leave, the pregnant teacher is allowed to work until she becomes physically unable to do so. Also, under a Category A leave, the teacher is guaranteed that she will be able to return to her former job when the leave expires. Webb testified that plaintiff was not eligible for this latter type of leave because plaintiff was not married. Webb testified that she made no mention of Category A to plaintiff because plaintiff affirmatively sought a Category B leave. The Court finds that plaintiff did seek a Category B leave, but further concludes that plaintiff, by virtue of the information previously conveyed to her and substantiated by Webb's statements in reference to single pregnant teachers, did so under the mistaken view that her choice was limited.
On August 26, 1983, plaintiff submitted a written request for a parental leave of absence for the fall term of the 1983-84 school year. This request was subsequently approved by the Personnel Department and the School Board.
Plaintiff filed for unemployment benefits on August 24, 1983, claiming that she had been forced to take a leave of absence because she was single and pregnant. *1060 Plaintiff was found eligible for such benefits on September 7. The School District appealed this ruling and a hearing was held on November 2. On November 4, the Virginia Employment Commission issued an opinion ruling that plaintiff had been forced to take a leave of absence because she was single and pregnant.
Plaintiff gave birth to a male child on December 15, 1983. On December 31, 1983, plaintiff married the child's father.
In November of 1983 and April of 1984, plaintiff requested that she be reinstated in a teaching position; however, no suitable positions were available at either of those times. On October 9, 1985, the School Board offered plaintiff a position teaching living skills at the Magruder Middle School. Plaintiff accepted the offer and began working at Magruder on November 1, 1985; she is currently still teaching at Magruder.
Plaintiff had filed a complaint with the EEOC on September 12, 1983 alleging that she had been discriminated against on the basis of her sex. On February 4, 1985, plaintiff received a Notice of Right to Sue from the EEOC. Plaintiff filed the instant suit on May 2, 1985.
The defendants to this suit are the Newport News School Board, Donald Bruno, current Superintendent of the Newport News Public Schools, Oliver Greenwood, former Superintendent of the Newport News Public Schools, Wiley Waters, Administrative Assistant for Personnel Services and Administration of the Newport News Public Schools, Hattie Webb, Personnel Coordinator for the Newport News Public Schools, and various individual current and former members of the Newport News School Board.
II. MERITS
The first issue that must be decided is whether plaintiff was in fact forced to take the leave of absence, for if she took the leave voluntarily, plaintiff would have no claim against the defendants. The defendants contend that plaintiff agreed that she should not be teaching while she was single and pregnant and that she voluntarily took the leave of absence. There is some evidence which supports this contention. First, plaintiff did not attempt to appeal her leave through the school system's grievance procedure. Second, plaintiff applied for unemployment benefits on August 24, 1983the day before she had her conference with Webb. The Court finds, however, that the evidence, taken as a whole, is sufficient to establish that plaintiff's leave of absence was involuntary.
First, although plaintiff did not file a grievance with the school system, she did file a complaint with the EEOC a few weeks after the commencement of her leave, charging the Newport News School District with sex discrimination. Such action would seem to have been reasonable, for an appeal through the school system's grievance procedure would have been futile if, as plaintiff believed, the discrimination against single, pregnant teachers was the product of a School Board policy.
Second, plaintiff was told by Crawford Smith that the Personnel Department dealt with single, pregnant women by presenting them with three options: (1) resign, (2) get married, or (3) take a leave of absence. Smith told plaintiff that a previous unwed, pregnant teacher had been dealt with in this manner.[2] Plaintiff had good reason to believe Smith's statements, not only because Smith worked in the Personnel Department, but also because he was the husband of a friend of plaintiff's. It was therefore reasonable for plaintiff to believe that, when Webb called on August 23 to arrange a conference, plaintiff was about to be forced to choose one of the three options about which she had been told by Smith. Plaintiff's decision to apply for unemployment benefits the day after her phone conversation with Webb was therefore not unreasonable.
It is also significant, not only that plaintiff applied for unemployment on August *1061 24, the day after she received the phone call from Webb, but also that plaintiff submitted her letter requesting a leave of absence on August 26, the day after her conference with Webb. There appears to have been a clear cause and effect relationship between plaintiff's conversations with Webb and plaintiff's decision to file, first, for unemployment, and then, for a leave of absence. Moreover, if plaintiff had intended to voluntarily take a leave of absence, it would seem that she would have requested it much earlier, for the Newport News School District's Memorandum of Understandingthe guide to School District policies and proceduresexplicitly states that a teacher who wishes to take a leave of absence must request such leave no less than two weeks prior to the expected commencement of the leave. Plaintiff clearly did not comply with this requirement, for she requested her leave on August 26 and it became effective only four days later, on August 30the day on which her employment for the 1983-84 school year was scheduled to begin. Finally, a finding of voluntariness would be inconsistent with the fact that it was Webb who contacted plaintiff, and not plaintiff who contacted Webb. Accordingly, the Court finds that the evidence establishes that plaintiff was forced to take an involuntary leave of absence because plaintiff was single and pregnant.
It therefore must be determined whether this involuntary leave constituted a violation of any of plaintiff's rights. The Court finds that the coerced leave did in fact violate at least two of plaintiff's rights; her constitutional right of privacy and her statutory right under Title VII against discrimination on the basis of sex.[3] The Court will address each of these issues in turn.
A. Constitutional Right of Privacy
The constitutional right of privacy is "a right of personal privacy, or a guarantee of certain areas or zones of privacy." Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973). This right protects individuals against undue governmental interference in personal decisions in areas such as marriage, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), procreation, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), contraception, Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), family relationships, Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), and child rearing and education. Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). The right to privacy is not absolute, however, for state regulation in these areas may be permissible if justified by a compelling state interest. See Carey v. Population Services International, 431 U.S. 678, 686, 97 S.Ct. 2010, 2016-17, 52 L.Ed.2d 675 (1977). In order to prevail on her constitutional privacy claim, plaintiff must establish that (1) the right of privacy includes the right to bear a child out of wedlock, (2) plaintiff was forced to take the leave of absence because she was single and pregnant, and (3) plaintiff's interest in exercising her constitutional right to bear a child out of wedlock outweighed the School District's interest in insuring that plaintiff was able to effectively and efficiently perform her teaching duties.
It is clear that the right to bear a child out of wedlock is protected by the Constitution. The Supreme Court has repeatedly noted that the right to privacy encompasses decisions regarding whether to have a child. See, e.g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. *1062 1678, 14 L.Ed.2d 510 (1965). This right to bear children extends to both single and married persons for, as the Supreme Court stated in Eisenstadt v. Baird, "[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972) (emphasis added).
Plaintiff therefore had a constitutional right to bear a child while unmarried. It is undisputed that plaintiff's exercise of this right was the reason she was forced to take a leave of absence, for if she had been either married and pregnant or single and non-pregnant she would not have been forced to take the leave. It must therefore be determined whether plaintiff's interest in exercising her right to become pregnant out of wedlock was outweighed by the School District's asserted interest in excluding plaintiff from the classroom.
It is now well established that public employment is not a privilege that can be made subject to unreasonable conditions. See, e.g., Connick v. Meyers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Accordingly, public employees may not be compelled to forfeit all of their constitutional rights when they accept such employment. There are limits, however, to the extent to which public employees may exercise their constitutional rights when such exercise conflicts with their performance of their duties as employees. The Supreme Court has developed a balancing test for determining when the state may legitimately discharge a public employee for the exercise of her constitutional rights. Under this test, the teacher's interest in exercising her rights is balanced against the state's interest in promoting the efficiency of the public services it performs through its employees. See, e.g., Connick v. Meyers, supra, 461 U.S. at 142, 103 S.Ct. at 1687; Pickering v. Board of Education, supra, 391 U.S. at 568, 88 S.Ct. at 1734.
The Court recognizes that school districts must be accorded a great deal of deference in regard to decisions affecting the management of schools. See, e.g., Board of Education v. Pico, 457 U.S. 853, 863-64, 102 S.Ct. 2799, 2806, 73 L.Ed.2d 435 (1982) (Brennan, J.); id. at 889, 102 S.Ct. at 2819 (Burger, C.J., dissenting); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 507, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). The school districts' authority in this regard is not unlimited, however, for it must be exercised in conformity with the Constitution. See, e.g., Board of Education v. Pico, supra; Tinker v. Des Moines Independent Community School District, supra; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943).
In this case, the particular state interest which has been alleged is that of protecting schoolchildren from exposure to a single, pregnant teacher. The Court has serious doubt as to whether this is in fact a legitimate interest. Even assuming that the asserted state interest is a valid one, however, the Court finds that it does not outweigh plaintiff's interest in exercising her constitutional right to bear a child out of wedlock.
It has not been alleged that the fact that plaintiff became pregnant out of wedlock indicated some moral defect in plaintiff which made her unfit to teach. Nor has it been alleged that plaintiff intended to openly advocate the virtues of pregnancy out of wedlock. Indeed, the evidence establishes that plaintiff was both desirous and anxious to marry her child's father. Rather, the sole allegation is that the mere sight of an unmarried, pregnant teacher would have a sufficiently undesirable influence on schoolchildren to justify excluding the teacher from the classroom. The Court finds this allegation to be meritless, for the effect on students of the mere sight of a single, pregnant teacher would be negligible, at best. To begin with, it is unclear *1063 whether plaintiff's students would have even been aware that plaintiff was unmarried. Moreover, even if plaintiff's students would have known that she was single, the mere knowledge that their teacher had gotten pregnant out of wedlock would seem to have a fairly minimal impact on them. There was no evidence that plaintiff intended to proselytize her students regarding the issue of unwed pregnancy. Plaintiff's pregnancy would not have affected the School Board's authority to prescribe the curriculum for plaintiff's students, nor would it have affected plaintiff's ability to implement this curriculum in her classes. Finally, there was no danger that plaintiff's single, pregnant status could in any way be perceived as representing a School Board-sponsored statement regarding the desirability of pregnancy out of wedlock; rather, such status could only be viewed as representing a personal decision made by plaintiff in her private capacity.
It is interesting to compare the instant situation with other instances in which courts have refused to uphold school district discharges of teachers who had exercised their constitutional rights. In James v. Board of Education, 461 F.2d 566 (2d Cir.), cert. denied, 409 U.S. 1042, 93 S.Ct. 529, 34 L.Ed.2d 491 (1972), a school district discharged a teacher who had worn a black armband to school to protest the Vietnam War. Similarly, in Russo v. Central School District No. 1, 469 F.2d 623 (2d Cir.1972), cert. denied, 411 U.S. 932, 93 S.Ct. 1899, 36 L.Ed.2d 391 (1973), a teacher was discharged because she refused to recite the pledge of allegiance. In both cases the court found that the discharges impermissibly infringed upon the teachers' constitutional rights. There would not appear to be any appreciable difference in the degree of impact on students of the sight of a teacher either wearing a black armband, standing silent during the pledge of allegiance or being visibly pregnant. Similarly, there would also not appear to be any appreciable difference in the acceptability or unacceptability of whatever moral values might be reflected in such sights. It would therefore appear that the School District's interest in preventing plaintiff from exercising her constitutional rights in this case is no greater than the interests of the school districts in the above cases.
Moreover, it might be found that, if anything, the burden imposed on the exercise of the particular constitutional right involved is even greater in this case than in James or Russo. Although the Court does not suggest that beliefs can or should be exercised on a part-time basis, it is true that precluding the exercise of certain types of speech in the classroom does not necessarily prevent their exercise outside the classroom. If the teacher in James had been prevented from expressing his disapproval of the Vietnam War in the classroom, it would have still been possible to him to express his disapproval of that war outside of the classroom. This would not be true for the exercise of the constitutional right to become pregnant out of wedlock, however, for it is not possible to be visibly pregnant only outside of the classroom. Therefore, the exclusion from the classroom of a teacher who chooses to exercise this particular constitutional right would effectively mean that the teacher could not exercise this right at all if she wished to continue teaching. Accordingly, because the right to become pregnant out of wedlock is protected by the Constitution, and because the state interest asserted in support of the coerced leave of absence is, at best, very weak, the Court finds that plaintiff's constitutional right of privacy was violated when she was forced to take the leave.[4]
*1064 B. Statutory Claim
Plaintiff also contends that her rights under 42 U.S.C. § 2000e-2 were violated when she was forced to take a leave of absence. Section 2000e-2 provides in pertinent part that "[i]t shall be an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." The School Board and its employees clearly qualify as "employers" within the meaning of this section.[5] The leave of absence that plaintiff was forced to take clearly affected the "terms, conditions, or privileges" of her employment. It therefore must be determined whether plaintiff was discriminated against on the basis of her sex when she was forced to take a leave of absence because she was single and pregnant.
The procedure for assessing the validity of claims of sex discrimination under Title VII is well established. The plaintiff has the initial burden of establishing a prima facie case of discrimination. If the plaintiff is successful in establishing such a case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the act complained of. If the defendant does introduce a legitimate, nondiscriminatory explanation for his conduct, the plaintiff must, in order to prevail, prove that this asserted justification is merely a pretext and that the real reason for defendant's conduct was a discriminatory one. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). The first issue to be determined is therefore whether plaintiff has established a prima facie case of discrimination.
In 1978, Congress amended Title VII of the Civil Rights Act of 1964 by adding the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k). This amendment provides that "[t]he terms `because of sex' or `on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work." The Supreme Court, in considering the implications of this amendment, stated that, "[t]he Pregnancy Discrimination Act has now made clear that, for all Title VII purposes, discrimination based on a woman's pregnancy is, on its face, discrimination because of her sex." Newport News Shipbuilding & Dry Dock Co. v. Equal Employment Opportunity Commission, 462 U.S. 669, 684, 103 S.Ct. 2622, 2631, 77 L.Ed.2d 89 (1983).[6]
*1065 It seems clear that, in this case, plaintiff was discriminated against on the basis of her pregnancy, for plaintiff would not have been forced to take the leave of absence if she had not become pregnant. A policy such as that invoked by the Personnel Department could apply only to pregnant teachers.[7]
Since plaintiff has established a prima facie case of sex discrimination, the burden shifts to the defendants to articulate a legitimate, nondiscriminatory reason for the manner in which plaintiff was treated. Indeed, the defendants do not advance any reason for the plaintiff's having taken leave as she did, other than that was her wish. The Court reiterates its rejection of this position. It is beyond question, in the Court's view, that the true reason was her pregnancy and unmarried status coupled with the expressed view that her teaching under those conditions would have been a bad moral example for her students. The Court has already discussed why such a concern is not a legitimate one. See supra pp. 1062-1063. Rejection of defendants' justification, as expressed by the Personnel employees to the plaintiff, is particularly appropriate in a Title VII case, for this Circuit has previously stated that "discrimination based on either immutable sex characteristics or constitutionally protected activities such as marriage or child rearing violate [Title VII] because they present obstacles to employment of one sex that cannot be overcome." Earwood v. Continental Southeastern Lines, Inc., 539 F.2d 1349, 1351 (4th Cir.1976). The discrimination in the instant case was based on both an immutable sex characteristicpregnancyand a constitutionally protected activitythe right to bear a child out of wedlock. Accordingly, such discrimination must be considered a violation of Title VII.
III. LIABILITY
Since it has been determined that plaintiff's constitutional and statutory rights have been violated, it must now be decided which of the defendants may be liable to plaintiff. As with the merits, the Court will discuss, first, plaintiff's constitutional claim and, second, plaintiff's statutory claim.
A. Constitutional
Plaintiff's recovery for the violation of her constitutional right to privacy is authorized by 42 U.S.C. § 1983. This section provides a cause of action against any person who, under color of state law, deprives any other person of the rights secured by the Constitution. The Court will discuss, first, the potential liability of the School Board under § 1983 and, second, the liability of the various individuals named as defendants to this suit.
Municipal bodies are considered "persons" within the meaning of § 1983 and may therefore be subject to liability in suits brought under that section. Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). However, a municipality may only be held liable under § 1983 if the alleged deprivation was the result of a policy or custom of that body. A municipality is not liable for the unauthorized acts of its employees, for respondeat superior does not apply in actions brought under § 1983. Plaintiff may therefore only recover from the School Board for the violation of her constitutional rights if she can establish that her leave of absence was the product of a School Board *1066 policy or custom of excluding single, pregnant teachers from the classroom.
There are three ways in which a School Board policy or custom could be found. First, it could be shown that the School Board actually initiated the policy. Second, a policy or custom could be attributed to the Board if the policy was initiated by an employee who had the final authority to make the decision to force a teacher to take a leave of absence. See Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir.1980). Finally, the action of an individual employee could be imputed to the Board if it were established that the Board was aware of the employee's action and implicitly ratified it. See Gilmere v. City of Atlanta, 737 F.2d 894, 902 n. 22 (11th Cir.1984).
Plaintiff has not introduced any evidence showing that the School Board itself initiated a policy of excluding single, pregnant teachers from the classroom. The evidence introduced at trial does, however, support the conclusion that, at least among the administrators in the Personnel Department, it was understood that single, pregnant teachers would be excluded from the classroom. Crawford Smith, a Personnel Assistant in the Department, was the person who first informed plaintiff of this policy. Moreover, both Hattie Webb and Wiley Waters testified that they felt that single, pregnant teachers should not be in the classroom. And finally, a previous single, pregnant teacher had been excluded from the classroom, presumably at the request of the Personnel Department.
This unofficial Personnel Department policy cannot, however, be imputed to the School Board, for none of the employees in the Personnel Department had the power to initiate School Board policy; they only had the authority to administer policies enacted by the Board. The acts of individual employees may be considered to represent the policy of the municipality in those areas in which the employee is "the final authority or ultimate repository of ... power" for the municipality. Familias Unidas v. Briscoe, supra, at 404. None of the Personnel Department employees had such power in this case, however, for it was the School Board that had the final authority over discharges and, it may be assumed, coerced leaves of absences.
Even though the Personnel Department did not have the power to initiate School Board policy, the Department's unwritten policy regarding unwed, pregnant teachers could be imputed to the School Board if it were shown that the Board was aware of this policy and implicitly ratified it. See Gilmere v. City of Atlanta, supra, at 902 n. 22. None of the evidence presented at trial, however, indicates that, at the time plaintiff was forced to take the leave, the School Board approved, or was even aware, of the manner in which the Personnel Department dealt with single, pregnant teachers.
It does appear that a previous single teacher had been treated in a manner similar to that in which plaintiff was treated in the instant case. There was, however, no evidence that the School Board played any role in either that case or the instant one. It is true that ultimate approval of leaves of absence rests with the School Board; however, it does not appear that there was any reason for the Board to have suspected that plaintiff's request for a leave was anything but voluntary, for there was nothing in plaintiff's letter requesting leave that indicated that her request was involuntary. In sum, plaintiff has not introduced sufficient evidence to warrant a finding that, at the time she was forced to take a leave of absence, there was a School Board policy or custom of excluding single, pregnant teachers from the classroom.
However, although the Board is not responsible for initially causing plaintiff to take the leave of absence, it does appear, as plaintiff argues, that the Board must have become aware at some point that plaintiff was claiming that she had been forced to take a leave because she was single and pregnant. The Board's failure to respond to plaintiff's claim could be interpreted as implicit approval of the Personnel Department's action. This approval *1067 could therefore form the basis for holding the Board liable to plaintiff for some of the damages which she suffered.
The Board approved plaintiff's request for a leave on September 21, 1983. Plaintiff had been ruled eligible for unemployment benefits on September 7. The School District, through defendant Webb, appealed this decision on September 19. The Employment Commission held a hearing on November 2; defendants Webb and Waters testified at this hearing, and the School District was represented by an attorney. The Commission issued an opinion on November 4 finding that plaintiff had been dismissed because she was single and pregnant. In addition, plaintiff filed a complaint with the EEOC on September 12, 1983, charging the School District with sex discrimination. The EEOC investigated plaintiff's complaint. During this investigation, the School District was required to provide certain information to the EEOC.
It would therefore appear that, between the Employment Commission and the EEOC proceedings, the Board must have been made aware at some pointpossibly even before it approved plaintiff's request for a leavethat plaintiff was challenging the legality of her leave. The Board's failure to take any action to remedy plaintiff's situation might therefore be found to constitute an implicit ratification of the Personnel Department's actions. Since a municipality may be liable under § 1983, not only for those policies which it initiates, but also for those which it implicitly ratifies, the Board could be liable for those injuries which plaintiff suffered after the Board became aware that plaintiff was claiming that her rights had been violated.
The difficulty with the above theory of liability, however, is that it appears that all of plaintiff's injuries are attributable to her initial leave, for there does not seem to have been anything the Board could have done to mitigate plaintiff's injuries once her leave was granted by the Personnel Department. As has already been noted, teachers who take a semester leave are not guaranteed that they will be returned to their former jobs, while teachers who take a disability leave are provided such a guarantee. Although it is unclear to the Court why these two types of leave are treated differently, it would appear that teachers who take a semester leave are replaced by permanent replacements, while teachers who take a disability leave are replaced by teachers hired on a temporary basis. Therefore, the reason a teacher who takes a disability leave is not guaranteed her job back is simply that her former position is no longer available.
Accordingly, when plaintiff took her leave of absence, her former position was filled by a teacher who had been hired on a permanent basis. Therefore, even if the Board knew that plaintiff had been treated unfairly, there would have been nothing it could have done about the situation, for it would have been improper for the Board to have created a vacancy for plaintiff by firing a teacher who had been legitimately hired. Plaintiff conceded at trial that, after her semester leave expired, she was returned to the first available position for which she was certified and qualified. Accordingly, because plaintiff has not established that the School Board became aware of plaintiff's claim at a time when it was still possible for the Board to have remedied plaintiff's situation, the Board is not liable to plaintiff under § 1983.
In addition to the School Board, however, plaintiff has also named numerous individuals as defendants, most of them in both their official and individual capacities. There is no need to discuss the liability of any of the individual defendants in their official capacities, for a suit against an individual in his official capacity is in reality a suit against the governmental entity which he represents. See Kentucky v. Graham, ___ U.S. ___, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Since the Court has already discussed the School Board's potential liability, the only aspect of the individual defendants' liability that needs to be addressed is their liability in their personal capacities.
*1068 The only defendants who are liable to plaintiff in their individual capacities are defendants Webb and Waters. Plaintiff has introduced no evidence indicating any conduct on the part of Donald Bruno, the current School District Superintendent, Oliver Greenwood, the former Superintendent, or any of the current or former members of the School Board which would justify the imposition of personal liability on any of these defendants. Unlike the other individual defendants, however, Webb and Waters are liable to plaintiff in their individual capacities for the violation of plaintiff's constitutional rights, as they were both responsible for this violation.[8] Both Webb and Waters testified that they felt it was improper for a single, pregnant teacher to be in the classroom. They also appear to have been the two highest ranking officials in the Personnel Department, and it may therefore reasonably be inferred that they were the initiators of the Personnel Department's informal policy regarding single, pregnant teachers. Most importantly, it was Webb who told plaintiff that plaintiff would not be allowed to teach. Waters was aware that plaintiff was pregnant and unmarried and that Webb was going to have a conference with plaintiff. It may therefore be inferred that Waters knew that Webb was going to force plaintiff to take a leave and that he implicitly approved of this action. Accordingly, the Court finds that, because Webb and Waters were responsible for violating plaintiff's constitutional rights by forcing her to take a leave of absence, they are both liable to plaintiff in their individual capacities under § 1983.[9]
B. Statutory
Plaintiff's recovery under Title VII differs from her recovery under § 1983 for, under Title VII, she may recover, not only from Webb and Waters, but also from the School Board. Section 2000e(a), as amended, includes governments, governmental agencies and political subdivisions as persons for Title VII purposes. The School Board has stipulated that it is an "employer" as defined in § 2000e(b). Further, as noted above, see supra n. 5, Webb and Waters are also "employers" under Title VII because they acted as the School Board's agents in their dealings with plaintiff.[10]
Defendants Webb and Waters are liable to plaintiff under Title VII for the same reason they are liable to her under § 1983, namely, because they were the ones who forced plaintiff to take the leave of absence. Moreover, the School Board is also liable to plaintiff for, unlike § 1983 where respondeat superior does not apply, Title VII imposes strict liability on the employer for the discriminatory acts of its agents. See, e.g., Horn v. Duke Homes, 755 F.2d 599, 605 (7th Cir.1985); see generally Development, New EEOC Guidelines on Discrimination Because of Sex: Employer Liability for Sexual Harassment Under Title VII, 61 B.U.L.Rev. 535, 538-43 *1069 (1981); Note, Sexual Harassment and Title VII: The Foundation for the Elimination of Sexual Cooperation as an Employment Condition, 76 Mich.L.Rev. 1007, 1025 (1978). Therefore, since Webb and Waters were the School Board's agents at the time they committed the discriminatory act, plaintiff may recover from the School Board itself, whether or not the Board played any affirmative role in the violation of plaintiff's Title VII rights.
Conclusion
Plaintiff's constitutional right to privacy and her statutory rights under Title VII were violated when she was forced to take a leave of absence because she was single and pregnant. The School Board is only liable to plaintiff under Title VII. Defendants Webb and Waters, however, are personally liable to plaintiff under both § 1983 and Title VII.
The precise amount of damages to be awarded will be determined at a later hearing. Counsel are advised that the Court is tentatively of the view that plaintiff is entitled to only nominal damages under § 1983. Accordingly, it is suggested that counsel in their efforts to reach agreement as to the amount of damages and counsel fees to which plaintiff is entitled under Title VII concentrate on the statutory allowances.
An appropriate order shall issue.
NOTES
[1] The issue of damages was severed from the substantive claim.
[2] Defendant Waters confirmed in his testimony at trial that such an incident had occurred.
[3] Although plaintiff could recover under either one of these theories, analysis of both of them would appear to be more prudent than reliance on only one. Moreover, the type of damages that may be awarded under § 1983 may differ from those authorized by Title VII. Discussion of plaintiff's constitutional claim and her Title VII claim is therefore appropriate. The Court will not, however, discuss plaintiff's potential claims under the equal protection clause, the due process clause, 20 U.S.C. § 1681 or 42 U.S.C. § 1981.
[4] Even if it were true that the School District's interest in protecting school children from exposure to a single, pregnant teacher outweighed the teacher's right to become pregnant out of wedlock, this justification could only support excluding the teacher from the classroom for the period during which she was visibly pregnant. The leave that the plaintiff in the instant case was required to take provided that she initially take an entire semester off and that she would not be able to return to a teaching position in the School District until a position for which she was certified and qualified became available. In this particular case, plaintiff's leave began on August 30, 1983, and she was not reinstated to another teaching position until November, 1985two years and two months after she was forced to take the leave. Assuming that a woman is visibly pregnant for, at most, a period of six months, at least one year and eight months of plaintiff's leave cannot be justified by the rationale asserted in support of the leave.
Moreover, even if the School Board could legitimately force a teacher to take a leave of absence because she was single and pregnant, this would not mean that an individual School District employeesuch as defendant Webb or Waterscould coerce such a leave without authorization from the Board. Therefore, since the Court finds that the coerced leave of absence was due, at least initially, to the unauthorized individual acts of defendants Webb and Waters, see infra pp. 1068-1069, the rationale asserted in support of the leave cannot insulate Webb and Waters from liability for their violation of plaintiff's constitutional right of privacy.
[5] Section 2000e(b) of Title VII of the United States Code defines an employer for Title VII purposes as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person." The School Board is an employer within the meaning of this section. Defendants Webb and Waters acted as the School Board's agents in making the decision to force plaintiff to take a leave of absence and are therefore also "employers" under Title VII.
[6] This does not mean that all discrimination based on pregnancy necessarily violates Title VII; rather, such discrimination merely constitutes a prima facie case under Title VII. Discrimination based on pregnancy may be permissible under Title VII if it is supported by a legitimate, nondiscriminatory justification.
[7] It might be argued that a policy which discriminates against unmarried, pregnant women does not constitute discrimination based on sex because the distinction it draws is not between men and women, but rather between pregnant persons and nonpregnant persons. Since women are included in the category of nonpregnant persons, such a policy does not discriminate against women. This line of reasoning, which was adopted by the Supreme Court in Geduldig v. Aiello, 417 U.S. 484, 496 n. 20, 94 S.Ct. 2485, 2492 n. 20, 41 L.Ed.2d 256 (1974), and General Electric Co. v. Gilbert, 429 U.S. 125, 134-35, 97 S.Ct. 401, 407, 50 L.Ed.2d 343 (1976), was found by the Court to have been explicitly rejected by Congress when it passed the Pregnancy Discrimination Act. See Newport News Shipbuilding & Dry Dock Co., supra, 462 U.S. at 676-82, 103 S.Ct. at 2627-30. This reasoning therefore cannot support a finding of nondiscrimination in this case.
[8] Webb and Waters were clearly acting under color of state law within the meaning of § 1983 when they violated plaintiff's constitutional right of privacy, for they were "clothed with the authority of state law" when they forced plaintiff to take the leave of absence. See Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961).
[9] The School Board is not liable for any of this amount, as a municipality is not liable for an award against its employees in their individual capacities. Kentucky v. Graham, supra, 105 S.Ct. at 3106.
It appears that defendants Webb and Waters may have had a defense of qualified immunity. See, e.g., Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). Such a defense, however, must be affirmatively pleaded by the defendant. Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). Webb and Waters have not done so in this case. The Court expresses no opinion as to whether such a defense would still be available at this time.
[10] That Webb and Waters were acting in their individual capacities when they violated plaintiff's rights does not affect their status as "employers" under Title VII, for the capacity in which the wrongdoer acted when the discrimination occurred is irrelevant, so long as the discrimination related to employment. See Kelly v. Richland School District 2, 463 F.Supp. 216, 218 (D.S.C.1978); Hanshaw v. Delaware Technical & Community College, 405 F.Supp. 292, 296 n. 10 (D.Del.1975). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260762/ | 632 F.Supp.2d 956 (2009)
AMERICAN PILEDRIVING EQUIPMENT, INC., Plaintiff,
v.
BAY MACHINERY CORPORATION, Defendant.
No. C 08-1934 PJH.
United States District Court, N.D. California.
June 12, 2009.
Craig J. Madson, Madson & Austin, P.C., Farmington, UT, Jeffrey L. Fillerup, Andrew Sasan Azarmi, Luce Forward Hamilton & Scripps LLP, San Francisco, CA, for Plaintiff.
Ina Doung-May Chang, Shook, Hardy & Bacon L.L.P., Matthew James Vanis, Mia Ottilia Solvesson, Shook, Hardy & Bacon *957 L.L.P., San Francisco, CA, Kenneth Paul Kula, Peter C. Knops, Shook Hardy & Bacon LLP, Kansas City, MO, for Defendant.
ORDER CONSTRUING CLAIMS
PHYLLIS J. HAMILTON, District Judge.
On May 6, 2009, the parties' claim construction hearing to construe the disputed terms of U.S. Patent No. 5,355,964 ("the '964 Patent") pursuant to Markman v. Westview Instruments, Inc., 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), came on before this court. Plaintiff American Piledriving Equipment, Inc. ("APE") appeared through its counsel Craig Madson and defendant Bay Machinery Corporation ("Bay") appeared through its counsel Peter Knops and Kenneth Kula. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the court hereby rules as follows.
BACKGROUND
The '964 Patent covers a vibratory assembly used in vibratory pile driving and pile pulling equipment for imparting a vibratory force to a pile utilizing counterweights. APE has sued Bay for infringement of the '964 Patent. See First Amended Complaint ("FAC").
A. Background Technology
Pile driving equipment is used to drive large piles into the earth to form a stable support for buildings or other structures. Similarly, pile driving equipment is used to remove large piles from the earth. Pile driving equipment with a vibratory apparatus, as opposed to pile driving equipment that use hammer devices to drive the pile, impart vibration force to the pile. Vibratory devices have several advantages over hammer devices, including an increased driving speed.
Vibratory devices can generate extremely high driving and pulling forces by rapidly rotating large counterweights within the vibratory assembly. The counterweights are large cylindrical, eccentrically weighted gears, i.e., they have uneven weight distribution around the body of the gear such that its center of gravity is radially outward of the gear's rotational axis. When the vibratory apparatus rotates two counterweights in opposite directions, the counterweights generate substantial vibratory forces that are transmitted through the vibratory assembly, through a pile holding device, and to the pile. The rapid rotation generates substantial vibratory forces, creating large stress loads within the counterweights as well as high temperatures in and around the counterweights due to the friction of the moving parts.
The prior art includes a vibratory assembly with counterweights having solid eccentric weight bolted to a portion of the cylindrical gear. These bolted counterweights, however, are not sufficiently durable because the bolts have a tendency to break under the stress generated during the rapid rotation of the counterweights. Another prior art vibratory assembly avoids the bolt breaking problem by using a cast one-piece, solid counterweight having an eccentric weight portion integral with a cylindrical gear portion. These solid, cast counterweights, however, do not have sufficient mass to generate large enough vibratory forces to efficiently drive or pull piles.
Attempts have been made to use lead to increase the mass of cast counterweights by machining holes into the eccentric weight portion and filling these holes with lead. These lead-filled counterweights, however, generate a limited degree of vibration amplitude. In addition, the friction *958 generated during the rapid rotation of the counterweights causes the lead to liquify and shift during operation, creating an unbalanced weight distribution in the counterweights, causing lateral forces which can damage the vibratory assembly. The unbalanced weight distribution is also caused by the inability to fill the holes with precise amounts of lead. Another problem experienced with lead-filled counterweights is that the lead inserts can be chipped or shaved off during operation, or otherwise contact the oil used for lubricating the moving components. The loose lead contaminates the oil and creates an environmentally hazardous waste, requiring expensive disposal procedures.
B. The '964 Patent
On October 18, 1994, the '964 Patent was issued to John White ("patentee"), president of APE. The invention relates to pile driving and pile pulling equipment, and more particularly to vibratory pile driving and pile pulling equipment using counterweights. The '964 Patent covers a vibratory assembly used in vibratory pile driving equipment for imparting a vibratory force to a pile wherein the vibratory assembly has a housing and a pair of counterweights that rotate within the housing.
The housing has at least one counterweight receiving area adapted to rotatably receive at least one counterweight. The counterweight is made of a first metal, such as steel, and has a cylindrical gear portion with an integral eccentric weight portion. The eccentric weight portion has at least one insert-receiving area formed therein for receiving a second metal, a solid insert made of tungsten ("tungsten rod"), which fits securely within the insertreceiving area. The tungsten rod is heavier than the first metal, and has a melting point of 328° C or greater, such that the tungsten will not become fluid and shift during the operation of the vibratory assembly. At least one driving motor is operatively connected to the counterweight and is adapted to rapidly rotate the counterweight to generate substantial vibratory forces.
The '964 Patent contains twenty-seven claims. APE maintains that Bay has directly infringed and continues to infringe claims 1-3, 5-14 and 16-18 by using, offering to sell or rent, selling and/or renting certain vibratory pile driving devices in the United States. The parties now seek construction of the following five disputed terms and/or phrases: (1) the "cylindrical gear portion"; (2) the "eccentric weight portion"; (3) "integral"; (4) the "insertreceiving area"; and (5) "connected to."
DISCUSSION
A. Legal Standard
Claim construction is a question of law to be decided by the court. Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed.Cir.1995). In construing claim terms, the court must begin with an examination of the claim language itself. The terms used in the claims are generally given their "ordinary and customary meaning." See Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed.Cir.2005); see also Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1248 (Fed.Cir. 1998) ("The claims define the scope of the right to exclude; the claim construction inquiry, therefore, begins and ends in all cases with the actual words of the claim."). This ordinary and customary meaning "is the meaning that the terms would have to a person of ordinary skill in the art in question at the time of the invention ..." Phillips, 415 F.3d at 1313. A patentee is presumed to have intended the ordinary meaning of a claim term in the absence of an express intent to the contrary. York Products, Inc. v. Central Tractor Farm & *959 Family Ctr., 99 F.3d 1568, 1572 (Fed.Cir. 1996) ("Without an express intent to impart a novel meaning to claim terms, an inventor's claim terms take on their ordinary meaning."). In some cases, the ordinary meaning of a claim by one of ordinary skill in the art may be readily apparent even to lay judges. Id. at 1314. In such a case, claim construction involves nothing more than the application of the widely accepted meaning of the commonly understood words through the use of a general purpose dictionary used in conjunction with the intrinsic evidence. Id.
Generally speaking, the words in a claim are to be interpreted "in light of the intrinsic evidence of record, including the written description, the drawings, and the prosecution history, if in evidence." Teleflex, Inc. v. Ficosa North Am. Corp., 299 F.3d 1313, 1324-25 (Fed.Cir.2002) (citations omitted); see also Medrad, Inc. v. MRI Devices Corp., 401 F.3d 1313, 1319 (Fed.Cir.2005) (court looks at "the ordinary meaning in the context of the written description and the prosecution history"). "Such intrinsic evidence is the most significant source of the legally operative meaning of disputed claim language," that is, the claims, the specification and the prosecution history. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir. 1996). This is because "the person of ordinary skill in the art is deemed to read the claim term not only in the context of the particular claim in which the disputed term appears, but in the context of the entire patent, including the specification." Phillips, 415 F.3d at 1312.
With regard to the intrinsic evidence, the court's examination begins, first, with the claim language. See Vitronics, 90 F.3d at 1582. Specifically, "the context in which a term is used in the asserted claim can be highly instructive." Phillips, 415 F.3d at 1314. As part of that context, the court may also consider the other patent claims, both asserted and unasserted. Id. For example, as claim terms are normally used consistently throughout a patent, the usage of a term in one claim may illuminate the meaning of the same term in other claims. Id. The court may also consider differences between claims to guide in understanding the meaning of particular claim terms. Id. For example, the presence of a dependent claim that adds a particular limitation gives rise to a presumption that the limitation in question is not present in the independent claim. Id. at 1314-15.
Second, the claims "must [also] be read in view of the specification, of which they are a part." Phillips, 415 F.3d at 1315. "[T]he specification `is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.'" Id. at 1315, 1321 (the specification is "the single best guide to the meaning of a disputed term, and acts as a dictionary when it expressly defines terms used in the claims or when it defines terms by implication"); see also Kinetic Concepts, Inc. v. Blue Sky Medical Group, Inc., 554 F.3d 1010, 1018-19 (Fed.Cir.2009). "In light of the statutory directive that the inventor provide a `full' and `exact' description of the claimed invention, the specification necessarily informs the proper construction of the claims." Phillips, 415 F.3d at 1316 (citing Merck & Co. v. Teva Pharms. USA, Inc., 347 F.3d 1367, 1371 (Fed.Cir.2003) ("A fundamental rule of claim construction is that terms in a patent document are construed with the meaning with which they are presented in the patent document. Thus claims must be construed so as to be consistent with the specification, of which they are a part.") (citations omitted)). When the specification reveals a special definition given to a claim term by the patentee that differs *960 from the meaning it would otherwise possess, the inventor's lexicography governs. Phillips, 415 F.3d at 1316. "The specification may [also] reveal an intentional disclaimer, or disavowal, of claim scope by the inventor. In that instance as well, the inventor has dictated the correct claim scope, and the inventor's intention, as expressed in the specification, is regarded as dispositive." Id.
The pertinence of the specification to claim construction is reinforced by the manner in which a patent is issued. Phillips, 415 F.3d at 1316. "The Patent and Trademark Office ("PTO") determines the scope of claims in patent applications not solely on the basis of the claim language, but upon giving claims their broadest reasonable construction `in light of the specification as it would be interpreted by one of ordinary skill in the art.'" Id. Indeed, because "the rules of the PTO require that application claims must `conform to the invention as set forth in the remainder of the specification and the terms and phrases used in the claims must find clear support or antecedent basis in the description so that the meaning of the terms in the claims may be ascertainable by reference to the description,'" it is "entirely appropriate for a court, when conducting claim construction, to rely heavily on the written description for guidance as to the meaning of the claims." Phillips, 415 F.3d at 1316-17.
Finally, as part of the intrinsic evidence analysis, the court "should also consider the patent's prosecution history, if it is in evidence." Phillips, 415 F.3d at 1317. The prosecution history is intrinsic evidence and consists of the complete record of the proceedings before the PTO and includes the prior art cited during the examination of the patent. Id. "[T]he prosecution history can often inform the meaning of the claim language by demonstrating how the inventor understood the invention and whether the inventor limited the invention in the course of prosecution, making the claim scope narrower than it would otherwise be." Id.; see also Alpex Computer Corp. v. Nintendo Co. Ltd., 102 F.3d 1214, 1220 (Fed.Cir.1996) (prosecution history, along with the claim language and specification, is relevant for construing the meaning and scope of the claims); Microsoft Corp. v. Multi-Tech Systems, Inc., 357 F.3d 1340, 1349 (2004) (statements made by the patentee in the prosecution of the patent application as to the scope of the invention may be considered when deciding the meaning of the claims). The court should take into account, however, that the prosecution history "often lacks the clarity of the specification" and thus is of limited use for claim construction purposes. Phillips, 415 F.3d at 1317.
In most cases, claims can be resolved based on intrinsic evidence. See Vitronics, 90 F.3d at 1583. Only if an analysis of the intrinsic evidence fails to resolve any ambiguity in the claim language may the court then rely on extrinsic evidence, such as expert and inventor testimony, dictionaries, and learned treatises. See id.; see also Phillips, 415 F.3d at 1321-22 (Courts are free to consult dictionaries so long as they are careful not to elevate them "to such prominence that it focuses the inquiry on the abstract meaning of the words rather than on the meaning of the claim terms within the context of the patent."). As the court explained in Markman, "[extrinsic] evidence may be helpful to explain scientific principles, the meaning of technical terms, and terms of art that appear in the patent and prosecution history." Id. at 980. However, the court generally views extrinsic evidence as less reliable than the patent and its prosecution history in determining how to read claim terms, even if its consideration is within the court's sound *961 discretion. See Phillips, 415 F.3d at 1318-19.
B. Construction of Disputed Terms and Phrases
As previously noted, the parties seek construction of five disputed terms and/or phrases: (1) the "cylindrical gear portion"; (2) the "eccentric weight portion"; (3) "integral"; (4) the "insert-receiving area"; and (5) "connected to." The court addresses each of these terms and/or phrases in turn below.
1. "cylindrical gear portion"
This phrase appears in asserted claims 1, 6, 11 and 16. The phrase also appears in unasserted claims 19, 21 and 27. At the hearing, the parties stipulated to the following construction of the phrase "cylindrical gear portion": "the `gear portion' of the counterweight is a substantially cylindrical portion and has a rear face, a front face, and a plurality of gear teeth around its perimeter." Because the court finds that the parties' proposed construction is supported by the claim language and the specification, the court hereby adopts it.
2. "eccentric weight portion"
This phrase appears in asserted claims 1, 3, 6, 11 and 16. The phrase also appears in unasserted claims 19, 21, 26 and 27. APE contends that "eccentric weight portion" should be construed to mean "that portion of the counterweight that contributes to the eccentric moment of the counterweight. The portion is part of the whole counterweight, but need not be a separate component piece or part." Bay contends that "eccentric weight portion" should be construed to mean "the portion of the counterweight that extends forward from the front face of the gear portion as defined in the specification."
To begin its analysis, the court first turns to the claims themselves. The phrase "eccentric weight portion" is first introduced in claim 1, which provides: "A vibratory assembly for imparting a vibratory force to a pile, comprising: . . . a counterweight . . . having a cylindrical gear portion and an eccentric weight portion integral with said cylindrical gear portion, said eccentric weight portion having at least one insert-receiving area formed therein, said counterweight made of a first metal; a solid insert member securely positioned in one of said at least one insertreceiving areas said solid insert member being made of a second metal ..." Claim 2 provides that the first metal is steel and the second metal is tungsten. Claim 3 provides that the insert-receiving area is a bore in the eccentric weight portion and the solid insert is a tungsten rod. As to the other claims in which the phrase appears, e.g., claims 6-9, 11-13 and 16-19, the relevant language is substantially similar to the language in claims 1-3 insofar as those claims indicate that the counter-weight is comprised of an "eccentric weight portion" and a "cylindrical gear portion"; the "eccentric weight portion" has at least one "insert-receiving area"; at least one solid insert is inserted into an "insert-receiving area"; the counterweight is made of steel; and the solid insert is a tungsten rod.[1]
Based on the court's review of the claim language, two things are evident. First, *962 the term "eccentric weight portion" is meant to have the same meaning in each claim, since there is no indication that the phrase is to be given a specific definition in any one claim versus another, and no indication that the phrase has been particularly defined, or referred to in a materially different way, in any specific claim. Second, the claim language does not define the phrase, but rather describes that the "eccentric weight portion" is a portion of the counterweight with at least one insertreceiving area therein adapted for receiving at least one solid tungsten rod. Accordingly, the court must turn to the specification for added insight.
The specification explains that the "vibratory assembly of the present invention. . . generates substantially vertical vibratory forces by rotating at high speeds two counterweights 40. . . . Each counterweight 40 has a gear portion 41 and an eccentric weight portion 43 that is integral to the gear portion. The eccentric weight portion 43 has dense, solid, metal inserts 45[2] mounted therein to increase the mass of the eccentric weight portion, and to position the center of gravity of the counterweight 40 radially outward from its rotational axis." '964 Patent, col. 3, lines 39-51 (footnote added). The specification further provides:
As best seen in FIGS. 3A and 3B, the gear portion 41 of the counterweight 40 is substantially cylindrical and has a rear face 94, a front face 96, and a plurality of gear teeth 98 around its perimeter. The eccentric weight portion 43 of the counterweight 40, which is formed integral with the gear portion 41, extends forward from the front face 96 of the gear portion. The gear portion 41 has a weight distribution with less weight provided by a top portion 102 and more weight provided by a bottom portion 104 as a result of the eccentric weight portion 43 being connected thereto. In the preferred embodiment, the eccentric weight portion 43 has a substantially semi-cylindrical portion 100, and the bottom portion 104 constitutes over one-half of the area of gear portion. Accordingly, the counterweight 40 has a large mass of material integral to and projecting from the bottom portion 104 of the gear portion 41, thereby forming a counterweight having a center of gravity located radially outward from the rotational axis of the gear portion.
'964 Patent, col. 5, lines 17-36.
As the specification describes, and figures 3A and 3B illustrate, the counterweight has a top portion and a bottom portion. The bottom portion extends forward from the front face of the gear portion and contains more weight than the top portion as a result of the "eccentric weight portion," which has at least one dense, solid, metal insert, i.e., tungsten rod, mounted therein to increase the mass of the "eccentric weight portion." The specification teaches that the function of the "eccentric weight portion" is to create an uneven weight distribution around the body of the gear such that the center of gravity is located radially outward from the rotational axis of the gear portion, thereby allowing the counterweight to generate substantial vibratory forces upon rotation.
After reviewing the claim language and the specification, the court declines to *963 adopt either party's proposed construction of the phrase "eccentric weight portion." Instead, the court construes the phrase "eccentric weight portion" to mean: "the bottom portion of the counterweight, which extends forward from the front face of the gear portion, containing more weight than the top portion due to its larger mass, including at least one insert-receiving area formed therein to receive at least one solid tungsten rod."
3. "integral"
This term appears in asserted claims 1, 6 and 11. The term also appears in unasserted claims 19, 21 and 27. APE contends that the term should be construed to mean "composed of portions, parts, or pieces that together constitute the whole. The portions act together to function as the counterweight." Bay contends that the term should be construed to mean "formed or cast of one-piece."
To begin its analysis, the court first turns to the claims themselves. The term "integral" is first introduced in claim 1, which provides: "A vibratory assembly for imparting a vibratory force to a pile, comprising:. . . a counterweight having a cylindrical gear portion and an eccentric weight portion integral with said cylindrical gear portion . . ." Substantially similar language appears in claims 6, 11, 19, 21 and 27.
Reviewing all the claims in which the term "integral" is used, it is apparent that the term is meant to have the same meaning in each claim, since there is no indication that the term is to be given a specific definition in any one claim versus another, and no indication that the term has been particularly defined in any specific claim. The court, however, finds that the usage of the term in claims 21, 23 and 27 provides illumination as to the meaning of the term when read together with claims 16 and 19.
Claim 21 provides: "A method of making a counterweight assembly of a vibratory device for imparting a vibratory force to a pile, comprising the steps of: forming with a first metal a counterweight having a cylindrical gear portion and an eccentric weight portion, integral with the cylindrical gear portion . . ." Claim 23 provides: "The method of claim 21 wherein said step of forming the counterweight comprises casting the counterweight." Claim 27 provides: "A method of making a counterweight assembly of a vibratory device for imparting a vibratory force to a pile, comprising the steps of: casting with a first metal a counterweight having a cylindrical gear portion and an eccentric weight portion integral with the cylindrical gear portion. . ."
The court construes the language in unasserted claims 21, 23 and 27 as supporting Bay's proposed construction insofar as these claims indicate that the counterweight is made by forming or casting the "cylindrical gear portion" and "eccentric weight portion" with one metal, i.e., the "cylindrical gear portion" and "eccentric weight portion" are "formed or cast as one-piece." This conclusion is also supported by the language of claims 16 and 19.
However, claim 16 provides: "A counterweight assembly for use in a vibratory pile . . . comprising: a cylindrical gear portion having a plurality of gear teeth around its circumference, . . . an eccentric weight portion connected to said cylindrical gear portion at a position radially outward of the axis of said cylindrical gear portion . . ." Claim 19, which depends from claim 16, provides: "The counterweight assembly of claim 16 wherein said eccentric weight portion is integral with said cylindrical gear portion, said first metal is cast steel, and said second metal is a tungsten."
*964 This language suggests that the term "integral" is not interchangeable with the phrase "connected to" inasmuch as claim 19 would be superfluous if "integral" and "connected to" meant the same thing. The doctrine of claim differentiation supports this construction. That doctrine creates a presumption against constructions that would render a claim meaningless in its entirety by making it identical in scope to another claim. Sinorgchem Co., Shandong v. Int'l Trade Comm'n, 511 F.3d 1132, 1139 (Fed.Cir.2007). In other words, claim differentiation creates a presumption that each claim in a patent has a different scope. Kraft Foods, Inc. v. Int'l Trading Co., 203 F.3d 1362, 1368 (Fed.Cir.2000). Thus, the presence of the limitation "integral" in claim 19 gives rise to the presumption that this limitation is not present in claim 16, which supports the determination that the meaning of "integral" is not the same as "connected to." As discussed more fully below, because the court construes the term "connected to" to mean "joined together, united or linked" conveying the joining, uniting or linking together of two separate pieces or parts, the court construes the claim language to support the conclusion that the term "integral" means "formed or cast as one-piece." Nevertheless, because the claim language does not specifically define the term "integral," the court examines the specification for added insight.
The specification states that "[t]he present invention ... provides a method of making a counterweight assembly adapted to rotatably fit in a vibratory assembly. The counterweight assembly having a cylindrical gear portion and an integral eccentric weight portion is cast with a first metal such as steel." '964 Patent, col. 2, lines 52-57. The specification further states that "[t]he eccentric weight portion 43 of the counterweight 40 ... is formed integral with the gear portion 41. " '964 Patent, col. 5, lines 20-22. In addition, the specification states: "In the preferred embodiment, the counterweight 40 is a onepiece component that is cast with a predetermined metal, such as steel.... The bottom portion 104 of the counterweight 40 is cast having insert receiving areas or bores 112 substantially parallel to the center bore 106 and extending fully through the gear portion." '964 Patent, col. 5, lines 50-53, 61-65. Finally, in discussing the prior art, the specification refers to "a cast, one-piece, solid counterweight" as "having an eccentric weight portion integral with a cylindrical gear portion." '964 Patent, col. 1, lines 45-48. Based on the foregoing, the court finds that the specification also supports the conclusion that the term "integral" means "formed or cast as one-piece."
Moreover, as Bay points out, the prosecution history also supports this conclusion. During reexamination of the '964 Patent, the patentee represented to the PTO that claims 1, 6 and 11 "recite that the counterweight has `a cylindrical gear portion and an eccentric weight portion' and that these two components are `integral'i.e., they are simply components of a `one-piece' counterweight." Bay's Claim Construction Brief, Exh., C at 6. Specifically, the patentee distinguished the claims of the '964 Patent from U.S. Patent No. 3,224,514 issued to Hornstein, with the statement that Hornstein did not disclose the "requirement of the integrali.e., onepiecenature of the eccentric weight portion." Id. The patentee further stated that "there is no `integral' or `one-piece' relationship when Hornstein provides eccentric force" because "Hornstein teaches a system in which weights may be added or removed in order to unbalance the rotating rotor." According to the patentee, because a second metal [which may be made of a different material] must be inserted *965 into the rotor to render Hornstein's device capable of providing eccentric forces, his eccentric is not integrally formed." Id. With these statements, the patentee expressly acknowledged, in order to distinguish his invention from prior art, that the "cylindrical gear portion" and an "eccentric weight portion" are components of a one-piece counterweight.
In sum, for all the reasons stated above, the court concludes that Bay's proposed construction of the term "integral" is most consistent with both the '964 Patent's language and the prosecution history. The court therefore construes the term "integral" to mean: "formed or cast of onepiece."
4. "insert-receiving area"
This phrase appears in asserted claims 1, 6, 11. The phrase also appears in unasserted claims 21, 22, 24 and 27. APE contends that the phrase should be construed to mean "a region of the eccentric weight portion that is capable of receiving an insert, as opposed to receiving material being poured into the region." Bay contends that the phrase should be construed to mean "an area shaped to receive the solid insert and extending fully through either the gear portion or the eccentric weight portion. Both the gear portion and the eccentric weight portion have an insert receiving area. This limitation defines insert receiving area as the insert receiving area of the eccentric weight portion as opposed the insert-receiving area of the gear portion."
The court begins its analysis by first turning to the claims themselves. The phrase "insert-receiving area" is first introduced in claim 1, which states: "A vibratory assembly for imparting a vibratory force to a pile, comprising: . . . counterweight having a cylindrical gear portion and an eccentric weight portion integral with said cylindrical gear portion, said eccentric weight portion having at least one insert-receiving area formed therein, said counterweight being made of a first metal; a solid insert member securely positioned in one of said at least one insert-receiving areas said solid insert member being made of a second metal . . ." Claim 2 provides that the first metal is steel and the second metal is tungsten. The phrase "insertreceiving area" also appears in claims 6, 11, 16, 21, 22, 24 and 27.
Reviewing all the claims in which the phrase "insert-receiving area" appears, the court finds that, while the precise language of each claim differs, the language of claim 1 is representative of the other claims, and that the phrase is meant to have the same meaning in each claim, since there is no indication that the phrase is to be given a specific definition in any one claim versus another, and no indication that the phrase has been particularly defined, or referred to in a materially different way, in any specific claim. Accordingly, because none of the claims specifically define the phrase, the court turns to the specification for added insight.
The specification states that:
The bottom portion 104 of the counterweight 40 is cast having insert receiving areas or bores 112 substantially parallel to the center bore 106 and extending fully through the gear portion. In the preferred embodiment, two insert receiving bores 112 are formed in the counterweight 40, although the number of bores can be varied. The insert receiving bores are shaped 112 to receive the solid insert 45, wherein the solid insert is manufactured from a metal that has a density or specific gravity that is greater than the density or specific gravity of the metal used to form the remainder of the counterweight 40. The *966 preferred solid insert 45 is a tungsten rod . . .
'964 Patent, col. 5, lines 61-68, col. 6, lines 1-5.
The essence of the dispute is whether the insert-receiving area extends through both the gear portion and eccentric weight portion of the counterweight. After reviewing the claim language and the specification, the court declines to adopt either party's proposed construction of the phrase "insert-receiving area." Instead, the court construes the phrase "insertreceiving area" to mean: "a bore formed in the eccentric weight portion of the counterweight, which extends fully through the gear portion and fully through the eccentric weight portion of the counterweight, capable of receiving a solid tungsten rod."
5. "connected to"
This phrase appears in asserted claims 1, 6 and 11. APE contends that the phrase should be construed to mean "joined together, united or linked. In this instance, the eccentric weight portion is joined with the cylindrical gear portion at a point radially outward of the axis of the cylindrical gear portion. `Connected to' can mean that the two portions are separate pieces joined together so long as that connection is at a position radially outward of the axis." Bay contends that the phrase should be construed to mean "formed of one-piece and specifically excludes bolting as the '964 patent teaches that prior art having bolted counterweights are not sufficiently durable and the '964 patent does not provide any other methods of "connected to" other than casting from onepiece."
The court begins its analysis by first turning to the claims themselves. The phrase "connected to" is first introduced in claim 1, which provides: "A vibratory assembly for imparting a vibratory force to a pile, comprising: . . . at least one driving means operatively connected to said counterweight and adapted to rotate said counterweight about its rotational axis." Substantially similar language appears in claims 6 and 11. Claim 16 provides: "A cylindrical gear portion having a plurality of gear teeth around its circumference, said cylindrical gear portion being made of a first metal; an eccentric weight portion connected to said cylindrical gear portion at a position radially outward of the axis of said cylindrical gear portion . . ." While the phrase "connected to" does not appear in claim 19, the court nonetheless finds that the language of this claim illuminates the meaning of this phrase. Claim 19, which depends from claim 16, provides: "The counterweight assembly of claim 16 wherein said eccentric weight portion is integral with said cylindrical gear portion, said first metal is cast steel, and said second metal is a tungsten."
As discussed above, because claim 19 would be superfluous if the phrase "connected to" meant the same thing as the term "integral," and because the presence of the limitation "integral" in claim 19 gives rise to a presumption that this limitation is not present in claim 16, the court, as noted above, construes the phrase "connected to" have a different meaning than the term "integral." However, because the claim language does not clearly define the phrase, the court turns to the specification for added insight.
The specification states that:
The counterweight 40 has a center bore 106 that extends fully through the gear portion 41 and the eccentric weight portion 43 . . . The center bore 106 has an inner diameter that is slightly larger than the outer diameter of the shaft 82, such that the center bore securely receives the shaft. The eccentric weight *967 portion 43 has two threaded bores 108 that communicate with and are transversely oriented relative to the center bore 106. The threaded bores 108 are adapted to receive conventional threaded lock fasteners to lock the shaft 82 within the center bore 106, thereby securely connecting the counterweight 40 to the shaft for rotation with the shaft.
'964 Patent, col. 5, lines 37-50.
The specification further states: "At least one motor is operatively coupled to the counterweight and is adapted to rotate the counterweight to cause the vibratory forces." '964 Patent, col. 2, lines 39-42. In addition, the specification states that: "When the drive motor 42 is activated, the drive motor turns its shaft . . . causing the counterweight 40 to rotate on the shaft 82. . ." '964 Patent, col. 7, lines 25-31.
In this case, neither the claim language nor the specification expressly define or describe the phrase "connected to." Nor does the specification indicate explicitly or implicitly that the patentee intended to import a novel or specialized meaning to the phrase "connected to" or the term "connected." Ordinarily, therefore, "connected" means "conjoined; fastened or linked together." Oxford English Dictionary (2d ed. 1989). In addition, the specification indicates that the word coupled is used interchangeably with "connected to" insofar as the specification uses coupled, rather than the phrase "connected to" as used in the claim language, to describe the relationship between the drive motor and the counterweight. The patent discloses no novel or specialized meaning of the word "coupled." Ordinarily, therefore, coupled means "tied, joined, linked, or associated together in pairs." Oxford English Dictionary (2d ed. 1989). Thus, while the word "coupled" appears in the specification, not in the claims, the court finds that it is meant to have the same meaning as "connected to."
Moreover, as the specification describes, and figure 4 illustrates, the shaft and counterweight are separate pieces or parts and the shaft is securely connected to the counterweight by threaded lock fasteners for rotation with the shaft upon the activation of the drive motor. The court construes this language to mean that "connected to" conveys the joining, uniting or linking of two separate pieces or parts.
Finally, to the extent that Bay asks the court to construe the term "connected to" to exclude bolting on the basis that the " '964 patent teaches that prior art having bolted counterweights are not sufficiently durable and the '964 patent does not provide any other methods of "connected to" other than casting from one-piece[,]" the court declines to do so. The court need not reach this issue to construe the phrase "connected to."
Thus, the court declines to adopt either party's proposed construction of the phrase "connected to." Instead, the court construes the phrase "connected to" to mean: "joined together, united or linked."
CONCLUSION
In accordance with the foregoing, and for the reasons discussed above, the court construes the parties' disputed terms and/ or phrases as follows:
1. "cylindrical gear portion" means: "the `gear portion' of the counterweight is a substantially cylindrical portion and has a rear face, a front face, and a plurality of gear teeth around its perimeter."
2. "eccentric weight portion" means: "the bottom portion of the counterweight, which extends forward from the front face of the gear *968 portion, containing more weight than the top portion due to its larger mass, including at least one insert-receiving area therein adapted to receive at least one solid tungsten rod."
3. "integral" means: "formed or cast of one-piece."
4. "insert-receiving area" means: "a bore formed in the eccentric weight portion of the counterweight, which extends fully through the gear portion and fully through the eccentric weight portion of the counterweight, capable of receiving a solid tungsten rod."
5. "connected to" means: "joined together, united or linked."
IT IS SO ORDERED.
NOTES
[1] The court notes that the phrase "eccentric weight portion" also appears in claims 21, 26 and 27. These claims concern the method of making a counterweight assembly of a vibratory device. In general, these claims indicate that the "eccentric weight portion" is a portion of the counterweight having at least one "insert-receiving area" and that at least one solid insert is inserted in an "insert-receiving area."
[2] "The preferred solid insert 45 is a tungsten rod ..." '964 Patent, col. 6, line 5. "A tungsten rod is used as the preferred solid insert 45 because the metal is very dense and has a melting point temperature far greater than temperatures experienced by the counterweight 40 during operation of the vibratory assembly 34." '964 Patent, col. 6, lines 11-15. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260768/ | 632 F.Supp. 815 (1985)
HABERSHAM AT NORTHRIDGE
v.
FULTON COUNTY, GEORGIA, et al.
No. C84-2005A.
United States District Court, N.D. Georgia, Atlanta Division.
July 26, 1985.
*816 *817 George P. Dillard, Dillard, Greer, Westmoreland & Wilson, Decatur, Ga., for plaintiff.
Frank N. Biggins, Arrington, Patterson & Thomas, P.C., Atlanta, Ga., for defendants.
ORDER
RICHARD C. FREEMAN, District Judge.
Plaintiff Habersham at Northridge is a joint venture which owns a 13.607 acre tract of land (the "subject property") located at the northeast quadrant of Northridge Road and Georgia 400, a limited access highway. Defendants Michael Lomax, Tom Lowe, Milton Farris, Reginald Eaves, Chuck Williams, Lee Roach and Bruce Bannister are members of the Fulton County Board of Commissioners. Defendant Robert Gerber is Director of the Fulton County Department of Planning and Community Development, defendant Wallace Linsey is the Fulton County Zoning Administrator, and defendant E.R. Garner is Director of the Fulton County Department of Permits and Inspections.
This action arises out of the Fulton County Board of Commissioners' refusal to rezone the subject property for office use as sought by the plaintiff. Plaintiff initially requested that the court issue a temporary restraining order enjoining further application of the Fulton County zoning ordinance to the plaintiff's property. In an order dated October 5, 1984, the court denied the plaintiff's motion for a temporary restraining order and ordered the parties to appear for a hearing on the plaintiff's motion for a preliminary injunction. The court then granted the plaintiff's motion to consolidate the trial on the merits with the application for a preliminary injunction. The action was tried before this court without a jury on April 8-9, 1985, and the parties have now submitted proposed findings of fact and conclusions of law.
I. Jurisdiction
Plaintiff has filed this action pursuant to 42 U.S.C. § 1983. As has often been noted, section 1983 creates no substantive rights but merely provides remedies for deprivations of rights established elsewhere. City of Oklahoma City v. Tuttle, ___ U.S. ___, 105 S.Ct. 2427, 2432-33, 85 L.Ed.2d 791 (1985). In this case, the plaintiff alleges that the actions of the defendants violated the Fifth Amendment, which prohibits private property from being taken for public use without just compensation. The just compensation clause of the Fifth Amendment is made applicable to the states through the due process clause of the Fourteenth Amendment. Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S.Ct. 446, 450, 66 L.Ed.2d 358 (1980). In addition, the plaintiff contends that the defendants' actions deprived it of due process and equal protection of the law, in violation of the Fourteenth Amendment. Plaintiff also asks the court to exercise pendent jurisdiction over its state law claim.
As a general proposition, this court believes that zoning disputes are matters which are more properly litigated in state court. Nonetheless, because the plaintiff's just compensation claim is clearly not insubstantial and frivolous, the court finds that the plaintiff's claim meets the jurisdictional requirements of 28 U.S.C. § 1343(3). See Fountain v. Metropolitan Atlanta Rapid Transit Authority, 678 F.2d 1038 (11th Cir.1982).
Although the court will assume jurisdiction over the plaintiff's federal claims, the court will, on its own motion, dismiss the plaintiff's state law claim. A district court's decision on whether to exercise pendent jurisdiction over a state law claim involves inquiry into a two-pronged test. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). First, the court must determine whether it has the power to hear the state claim and, second, the court must decide whether the exercise of that power would be a proper use of the court's discretion. Phillips v. Smalley Maintenance Services, Inc., 711 *818 F.2d 1524, 1531 n. 4 (1983). Because the plaintiff's federal and state claims derive from a common nucleus of operative facts, United Mine Workers, 383 U.S. at 725, 86 S.Ct. at 1138, this court has the power to hear the state law issues. This court believes, however, that a proper exercise of judicial discretion requires dismissal of the state law claim.
The court notes that the federal and state law questions presented to the court are similar, although not identical. Plaintiff's federal constitutional claim requires the court to make the limited determination of whether the application of the zoning ordinance to the plaintiff's property substantially advances legitimate state interests or denies the plaintiff economically viable use of its property. Agins v. City of Tiburon, 447 U.S. 255, 261, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980). The Georgia Supreme Court has established a balancing test under which a regulation is considered confiscatory if it results in relatively little gain or benefit to the public while inflicting serious injury or loss on the owner. Barrett v. Hamby, 235 Ga. 262, 219 S.E.2d 399 (1975). The court in Barrett specifically held that for an unlawful confiscation to occur, "it is not necessary that the property be totally useless for the purposes classified." Id. at 266, 219 S.E.2d at 402. It will suffice that the damage to the owner is significant and is not justified by the benefit to the public. Id. Cf. Rymer v. Douglas County, 764 F.2d 796 (11th Cir.1985) (Plaintiffs must allege the denial of any viable economic use of their property.).
In Guhl v. Holcomb Bridge Road Corp., 238 Ga. 322, 232 S.E.2d 830 (1977), the Georgia Supreme Court noted certain specific factors which are relevant to the balancing test put forth in Barrett:
(1) existing uses and zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restrictions; (3) the extent to which the destruction of property values of the plaintiffs promotes the health, safety, morals or general welfare of the public; (4) the relative gain to the public, as compared to the hardship imposed upon the individual property owner; (5) the suitability of the subject property for the zoned purposes; and (6) the length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the property.
Id. at 323-24, 232 S.E.2d at 832. The court also held that the appropriate remedy if the regulation is declared void is for the trial court to order the local governing authority to rezone the property in a constitutional manner, with the trial court reserving jurisdiction to declare the property free from any restrictions if constitutional rezoning is not accomplished within a reasonable time. Id.
The validity of a zoning ordinance under state law is a matter primarily of local concern and one which is particularly well suited for adjudication in state court. The Georgia courts have established guidelines for dealing with such issues and have extensive experience in zoning matters. As noted above, if an ordinance is found to be void, Georgia courts have broad authority to retain jurisdiction over a particular action pending rezoning of the property by the local governing authority. In sum, the court believes that the better course of action is for this court to rule on the merits of the plaintiff's federal claims but to decline to exercise pendent jurisdiction over the plaintiff's state law claim. The court notes that under Georgia law, a claim for damage to realty based upon a taking of private property without just compensation must be brought within four years after the right of action accrues. Off'l Code Ga.Ann. § 9-3-30; Lawrence v. City of LaGrange, 63 Ga.App. 587, 11 S.E.2d 696 (1940). Because the plaintiff's application for rezoning was not denied until September 5, 1984, an action in state court would not be barred by the statute of limitations.
II. Findings of Fact
The property at issue in this action consists of a three acre tract of land fronting on Northridge Road and Huntingdon Trail *819 and an adjoining 10.6 acre tract of land. To the west of the property is Georgia 400, a four-lane limited access highway which will be expanded to eight-lanes. The contiguous property north of the subject property is zoned for multi-family residential use. The property east and south of the subject property is zoned for single-family residential use. East of the property, where Northridge Road ends, is recreational area and the Chattahoochee River. The property southwest of the subject property, across Northridge Road and Roberts Drive, is zoned for multi-family residential use. There is significant office and commercial development on the opposite side of Georgia 400 west of the subject property. There is no evidence in the record that the subject property has ever been developed.
Plaintiff purchased the two tracts of land in question in August 1984. Under the terms of the purchase arrangement, the plaintiff paid approximately $237,000.00 at the closing. If the property is rezoned as the plaintiff seeks, the plaintiff must pay an additional two million dollars, which is secured by two notes, bringing the total purchase price to approximately $2.2 million. If the property is not rezoned as sought, the plaintiff is not obligated to pay off the notes. Rather, the plaintiff has three alternatives: (1) indicate to the sellers that it does not want the property, thereby incurring a loss consisting of the down payment and investments made in the property since the closing; (2) renegotiate the purchase arrangement; or (3) create a new joint venture.
At the time the plaintiff purchased the subject property, development on the property was limited to the uses allowed under an AG-1 (Agricultural) zoning classification. This classification allows for agricultural use, other public uses, or single family residential dwellings on lots of one acre or more. After purchasing the property, the plaintiff applied to have the property rezoned to O-I (Office-Institutional) Conditional. Plaintiff also sought a special use permit to exceed the allowable height limitation. On September 5, 1984, the Fulton County Board of Commissioners denied the plaintiff's rezoning application. Plaintiff then initiated the instant action.
The denial of the plaintiff's rezoning application was not the first time the Board of Commissioners refused to rezone the subject property. On March 7, 1984, six months before the plaintiff purchased the property, the Board denied a similar request to rezone the property O-I. In addition, in November 1982, the Board denied a request to rezone the property for TR (Townhouse Residential) use.
Plaintiff seeks to have the subject property rezoned in order to build a six-story office building. In denying the plaintiff's application, the Board of Commissioners adopted the reasoning of the Fulton County planning staff. Specifically, the planning staff stated that the plaintiff's proposal is "not compatible with the living patterns of the adjacent neighborhood and would produce severe negative impacts upon that neighborhood." See Plaintiff's Exhibits 7 and 8. The planning staff noted that the office development proposed by the plaintiff would be appropriate for the high intensity activity node west of Georgia 400 where it would not intrude on stable single-family neighborhoods and transitional uses could be encouraged. The staff pointed out that the proposal would not provide the opportunity for transitional land uses or adequate buffers. Accordingly, the staff concluded that the development would "begin the process of destabilization of the Northridge neighborhoods which would lead to the redevelopment of their 200 + acres as well as 45 acres of vacant properties along Roberts Drive to the south." Id.
The planning staff also indicated that the plaintiff's proposal would create certain technical difficulties. The staff noted that the proposed development would require the construction of a multi-level parking deck which would be exposed to some of the adjacent homes. The staff also stated that sewerage is not presently available to the site and that accordingly development is premature. The staff concluded that *820 "[u]pon the availability of sewerage, development compatible in both character and use with low density single-family uses should then proceed." Id. The staff suggested that the most appropriate use of the property would be single-family dwellings of less than one unit per acre. The staff indicated, however, that it could support single-family development on lots smaller than one acre if an acceptable level of compatibility with the existing neighborhood was maintained and if sewerage was available. Finally, the staff stated that if the plaintiff's petition was approved by the Board against the staff's recommendation, then the Board should at least require the establishment of significant buffers and should reduce the density of the proposed development "so as not to encourage additional high-density nonresidential development on other properties nearby." Id. In sum, however, the staff recommended denial of the petition because "essential land use compatibility between office and low density residential cannot be achieved due to the property's shape and orientation to the neighborhood." Id.
At the hearing before this court, the plaintiff presented expert witnesses who testified regarding the possibility of developing the subject property under the current zoning and as proposed by the plaintiff. Plaintiff first takes issue with the planning staff's concerns over the availability of sewerage for the proposed development. Plaintiff notes that Fulton County does not run sewer lines at county expense but instead requires that the developer pay for such lines. Plaintiff also points out that the county permits the use of county rights-of-way and will exercise its power of eminent domain, at the developer's expense, in order to construct sewer lines.
Plaintiff's expert witness, Peter Rhodes, discussed four alternatives for providing sewerage to the plaintiff's proposed development. These proposals would involve the use of lift stations or force mains which would be maintained by the developer. These methods of providing sewerage are used in other developments in Fulton County. Rhodes conceded, however, that the county concerns over the use of force mains or lift stations for this particular development are legitimate.
Plaintiff also presented evidence that the proposed development would not adversely affect the traffic situation in that area. Plaintiff's expert witness, Michael Sexton, testified that if certain improvements were made, the traffic would remain at its present level.
Plaintiff next presented evidence relating to the development of the property under either the current zoning or the proposed rezoning in terms of environmental considerations. Clifford Bragdon, a professor of city planning at the Georgia Institute of Technology, testified that the subject property is not suitable for residential development because the noise level on the property exceeds the recommended levels for residential compatibility. Bragdon stated that the predominant source of noise on this property is transportation. Bragdon also testified that the property is suitable for office use because offices can be better insulated than houses and because the acceptable noise levels for offices are not as strict as those for residences.
Bragdon next testified that the subject property is not suited for residential development because the spillover of light exceeds what one would want for residential homes. Bragdon indicated that if the proposed development was properly buffered to prevent spillover light, it would be compatible with the adjacent residential use. Finally, Bragdon testified that if Georgia 400 is expanded as planned, residential development would not be recommended because of decreased air quality. Bragdon concluded that the subject property is not compatible with residential use but is compatible with office use.
Plaintiff also presented evidence regarding the reasonableness of the current and the proposed zoning classifications. Thomas Roberts, a consultant on planning and zoning, testified that in his expert opinion, the current classification of the property as AG-1 is inappropriate and unreasonable. *821 Roberts based his opinion on several factors, including the location of the property at an activity center, as designated by the Atlanta Regional Commission; the fact that the shape, topography and size of the property make it inappropriate for single-family housing; the development which has taken place at other Georgia 400 interchanges; and the difference in value between the property as zoned and with the proposed rezoning. Roberts also testified that the proposed development could serve as a buffer between Georgia 400 and the adjacent neighborhood.
Finally, the plaintiff presented evidence relating to the economic feasibility of developing the subject property under the current and the proposed zoning. William Evans, Jr., a real-estate developer, testified that the subject property is not suitable for single-family residential development under the current zoning. Evans concluded that the lots would not be marketable at this location for what it would cost to develop these particular lots.
Brian McColgan, a real estate appraiser, testified that the subject property under the current zoning has a nominal value of $50,000. McColgan reached this conclusion primarily because of the property's location along Georgia 400 and the limited number of lots which could be developed. McColgan stated that if the property was developed under the current zoning (thirteen tracts for single-family dwellings on lots of one acre or more), the developer would sustain a net loss of $30,000. Because McColgan concluded that the property has a negative value under this zoning, he assigned a nominal value of $50,000 to the property.
McColgan also appraised the value of the property if rezoned for office use. McColgan concluded that based on a density of 25,000 square feet per acre and an assigned value of $20 per usable square foot, the property is worth $6,800,000. Thus, McColgan stated that the denial of the requested rezoning resulted in a diminution in value of $6,750,000. McColgan concluded that the plaintiff had incurred damages based on his appraisals of $535,000 as of the date of the hearing or $2,497 per day. McColgan also stated that he believed the proposed development would provide a buffer for the adjacent neighborhood and would not adversely affect the value of the neighbors' property.
III. Conclusions of Law
Initially, the court rejects the plaintiff's argument that the subject property is free of any zoning restrictions. This argument is based on the fact that the official Fulton County Zoning Map is kept in the office of the Fulton County Zoning Administrator rather than in the office of the Clerk of the Board of Commissioners and the fact that this map has been altered to indicate zoning changes which have occurred since 1955. The authority cited by the plaintiff does not support the contention that the county zoning map is void because it is kept in the Zoning Administrator's office. Accordingly, the court will address whether the Board's refusal to rezone the subject property from AG-1 to O-I, as sought by the plaintiff, violated the plaintiff's constitutional rights.
A. Fifth Amendment Claim
The just compensation clause of the Fifth Amendment prohibits private property from being taken for public use without just compensation. The application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests, or denies an owner economically viable use of his land. Agins v. City of Tiburon, 447 U.S. 255, 261, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980).
1. Legitimate State Interests
Federal judicial review of the actions of a county zoning commission under this prong of the takings analysis is exceedingly narrow. This court is not empowered to substitute its own determination of what would constitute the best possible use of particular property for the decision of the local zoning board. Couf v. DeBlaker, 652 *822 F.2d 585, 588 (5th Cir.), cert. denied, 455 U.S. 921, 102 S.Ct. 1278, 71 L.Ed.2d 462 (1982). As stated in Stansberry v. Holmes, 613 F.2d 1285 (5th Cir.), cert. denied, 449 U.S. 886, 101 S.Ct. 240, 66 L.Ed.2d 112 (1980):
Zoning is the local community's most powerful weapon against a wave of commercialism that threatens to permeate not only the major thoroughfares but the quiet residential neighborhoods with their parks, trees, and children at play. Without the power to zone, every person would be at the mercy of the entrepreneur who chose to develop on the next corner. Zoning provides one of the firmest and most basic of the rights of local control.
Id. at 1288. Thus, this court must simply inquire whether the action of the Board of Commissioners in refusing to rezone the subject property as requested was arbitrary and capricious, having no substantial relation to the general welfare. South Gwinnett Venture v. Pruitt, 491 F.2d 5, 7 (5th Cir.1974), cert. denied, 419 U.S. 837, 95 S.Ct. 66, 42 L.Ed.2d 64 (1974). Upon a factual showing of arbitrariness, there must be some basis in fact and law to justify the zoning action as consistent with reasonableness. Id.
This court has carefully reviewed the evidence submitted and concludes that the Board's refusal to rezone the subject property was not arbitrary or capricious. In Agins, the Supreme Court held that a municipality has a legitimate interest in "assuring careful and orderly development of residential property with provision for open-space areas." Agins, 447 U.S. at 263, 100 S.Ct. at 2142. This court believes that the Board's refusal to allow the proposed high-density development is rationally related to the county's interest in promoting stable residential neighborhoods. The Board could reasonably conclude, based on the report and the opinion of the county planning staff, that the proposed development could have a negative impact on the adjacent neighborhoods and could lead to the redevelopment of the surrounding area. The Board could also conclude that single-family residential development is the most appropriate use of the subject property based on compatibility with the neighboring property and the inability to provide for transitional land uses. The court therefore finds that the classification of the subject property under an AG-1 designation is rationally related to legitimate state concerns. Schad v. Borough of Mount Ephraim, 452 U.S. 61, 69, 101 S.Ct. 2176, 2182, 68 L.Ed.2d 671 (1981).
Plaintiff has presented this court with evidence which disputes the defendants' contention that the proposed development could have a negative impact on the adjacent neighborhoods. For example, Peter Rhodes testified that adequate sewerage could be provided to the office building at the plaintiff's expense and Michael Sexton testified that the development would not adversely affect the traffic situation. In addition, Clifford Bragdon and Thomas Roberts testified that the development could serve as a buffer between the residential neighborhood and Georgia 400. Brian McColgan stated that the proposed development would not adversely affect the property values of the adjoining residences.
The evidence presented by the plaintiff demonstrates that reasonable people could draw different conclusions about the possible effects the proposed development could have on the surrounding area. In such a situation, this court will not substitute its own judgment for that of the Board of Commissioners. Because the Board's decision to deny the plaintiff's rezoning application is substantially related to legitimate public concerns, the Board's actions were not arbitrary and capricious and must be upheld by this court.
Plaintiff also notes that petitions opposing the plaintiff's rezoning application, signed by neighboring property owners, were submitted to the Board of Commissioners. Plaintiff argues that these petitions are further evidence of the arbitrary and capricious nature of the Board's decision. The court does not agree. The Board's determination that the plaintiff's *823 application should be denied was not a judicial decision but, rather, was legislative in nature. Couf, 652 F.2d at 590. Accordingly, there is no procedural bar to the Board's consideration of such petitions. In addition, this court has already concluded that the Board's decision advanced legitimate state concerns, and thus, there is no evidence that the consideration of these petitions resulted in arbitrary or capricious action.
2. Economically Viable Use of the Property
The purpose of the just compensation clause is to prevent the government from forcing some people to bear public burdens which in fairness and justice should be borne by the public as a whole. Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 125, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978). Thus, a zoning ordinance whose purpose and means are reasonable may nonetheless be a taking if it is unduly onerous so as to be confiscatory. Maher v. City of New Orleans, 516 F.2d 1051, 1065 (5th Cir.1975), cert. denied, 426 U.S. 905, 96 S.Ct. 2225, 48 L.Ed.2d 830 (1976).
The question whether the application of a zoning ordinance to particular property is so onerous as to amount to a taking has proven to be a problem of considerable difficulty and no set formulas have been developed to resolve this issue. See Penn Central, 438 U.S. at 124-25, 98 S.Ct. at 2659; Rymer v. Douglas County, 764 F.2d 796 (11th Cir.1985). The Supreme Court, however, has identified certain factors which are relevant in making this determination. A court must consider "[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations...." Penn Central, 438 U.S. at 125, 98 S.Ct. at 2659. Another consideration is the character of the governmental action. Id.
In order for an otherwise valid exercise of a state's zoning power to constitute a taking because of the regulation's adverse economic impact on particular property, a plaintiff must prove that it has been denied "any viable economic use of [its] property." Rymer, 764 F.2d at 800, citing Hernandez v. City of Lafayette, 643 F.2d 1188, 1200 (5th Cir.1981); York v. City of Cedartown, 648 F.2d 231, 232 n. 2 (5th Cir.1981). Neither deprivation of the most beneficial use of land nor a severe decrease in the value of the property will alone establish an unlawful taking. Nasser v. City of Homewood, 671 F.2d 432, 438 (11th Cir.1982).
This court has considerable doubt that the subject property is worth no more than $50,000 as zoned. The court questions, for example, whether development of the three tracts fronting on Huntingdon Trail for single-family residential use, without development of the remaining ten acres, would alone result in property worth more than this amount. However, in view of the fact that the defendants have not presented any evidence rebutting this appraisal, the court will assume for the purpose of this discussion that the property as a whole cannot be developed profitably under its current zoning. Nonetheless, because this court finds that the plaintiff had no legitimate expectation that the property would be rezoned for office development as sought, the court concludes that no taking has occurred.
As the court views the plaintiff's actions in this case, the purchase of the subject property and the subsequent application for rezoning do not evidence a reasonable investment-backed expectation but, rather, a business gamble. Plaintiff put up $237,000 for property which the Fulton County Board of Commissioners had twice refused to rezone and which, by its own expert's account, was worth no more than $50,000 at the time of the purchase. If the property was rezoned as sought, the gamble would pay off because the plaintiff, after putting up an additional $2,000,000, would own property worth $6,800,000. If, however, the property was not rezoned, the plaintiff could simply walk away from the *824 deal, losing little more than what it cost to place its bet.[1] This court does not believe that "justice and fairness" require that the public be made to bear the cost of what turned out to be a losing gamble.
B. Due Process and Equal Protection
The plaintiff's claim under either the due process or the equal protection clause of the Fourteenth Amendment is coextensive with its claim under the takings clause, which protects against the arbitrary use of government power. See Rymer, 764 F.2d at 802, Couf v. DeBlaker, 652 F.2d 585, 588 n. 7 (5th Cir.1981). The test in this circuit as to whether there has been a violation of substantive due process involves an inquiry into whether there has been a deprivation of a federal constitutionally protected interest and whether the deprivation, if any, is the result of an abuse of governmental power sufficient to raise an ordinary tort to the stature of a constitutional violation. Rymer, at 802; Williams v. Kelley, 624 F.2d 695, 697 (5th Cir.), cert. denied, 451 U.S. 1019, 101 S.Ct. 3009, 69 L.Ed.2d 391 (1981). In Rymer, the Eleventh Circuit stated that the due process test "adds little or nothing that the taking clause does not encompass." Rymer, at 802. Because this court has concluded that the actions of the defendants were rationally related to legitimate state concerns and were not arbitrary and capricious, the plaintiff's Fourteenth Amendment claim must be denied. The court also finds that the actions of the defendants do not evidence an abuse of governmental power.[2]
Accordingly, the plaintiff's state law claim is DISMISSED. Plaintiff's prayer for monetary, declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 is DENIED. The clerk is DIRECTED to enter final judgment in favor of the defendants.
NOTES
[1] Plaintiff asserts that it would lose $385,000 if the property is restricted to AG-1 zoning.
[2] Plaintiff's post-trial pleadings do not raise a claim based on a denial of procedural due process. In any event, since the state of Georgia provides an adequate means to address the issues raised in this case, see Barrett v. Hamby, 235 Ga. 262, 219 S.E.2d 399 (1975), a procedural due process claim would be foreclosed by the Supreme Court opinion in Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). See Rymer, 764 F.2d at 802-03. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2446227/ | 4 A.3d 190 (2010)
ZEPP
v.
ZEPP.
No. 782 EDA 2009.
Superior Court of Pennsylvania.
May 12, 2010.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1059794/ | 513 S.E.2d 130 (1999)
257 Va. 419
COMMONWEALTH of Virginia, DEPARTMENT OF TAXATION
v.
DELTA AIR LINES, INC.
Record No. 980824.
Supreme Court of Virginia.
February 26, 1999.
*131 Donald R. Ferguson, Assistant Attorney General (Mark L. Earley, Attorney General; Michael K. Jackson, Senior Assistant Attorney General, on brief), for appellant.
H. Karl Zeswitz, Jr., Washington, DC (Frederick W. Chockley; Alissa J. Altongy; Sutherland, Asbill & Brennan, Washington, DC; Baker & Hostetler, Alexandria, on brief), for appellee.
Present: All the Justices.
KINSER, Justice.
Delta Air Lines, Inc. (Delta), is a corporation organized and existing under laws of the State of Delaware. Although Delta's principal place of business is in Atlanta, Georgia, Delta is qualified to do business in the Commonwealth of Virginia. Delta's business activities in Virginia include the carriage of persons and property on aircraft that land at and depart from airports situated in the Commonwealth. Delta also flies aircraft over Virginia that do not take off from or land at any airports located within the Commonwealth. These flights are known as "overflights" and are the subject of this appeal.
Delta's overflights neither use nor have contact with any ground facilities or services in Virginia, including officials or agencies of the Commonwealth. All communications with aircraft during overflights are conducted either by the air traffic controllers of the Federal Aviation Administration or by licensed dispatchers at Delta's operations control center. In short, Delta does not avail itself of any benefit provided in the Commonwealth during its overflights.
The primary dispositive issue in this appeal is whether the Commonwealth of Virginia, Department of Taxation (the Department), can include Delta's overflight miles in the numerator of the formula used to determine Delta's Virginia corporate income tax liability. This issue requires an analysis of whether Delta's overflights constitute business activities "in the Commonwealth" pursuant to Code §§ 58.1-409, -410, -414, and 416. Because these overflights occur "over the Commonwealth" rather than "in the Commonwealth," we will affirm the judgment of the circuit court in favor of Delta on this issue.
We also address the question whether the circuit court erred by finding that Delta's application to correct an erroneous tax assessment for two tax years was not timely filed pursuant to Code § 58.1-1825. We will reverse the judgment of the circuit court on this issue because we conclude that the applicable statute of limitations commenced to run from the date that the Department mailed or delivered the second "Notice of Assessment" to Delta.
I.
For the tax years ending June 30, 1987, June 30, 1988, June 30, 1989, and June 30, 1990, Delta used a three-factor method to apportion its income for the purpose of determining its Virginia income tax liability. See Code § 58.1-408. The three factors used were a property factor, payroll factor, and sales factor. Only the formula for calculating the property and sales factors is at issue in this appeal.
The property factor's numerator included the value of Delta's property utilized in Virginia: (1) ground property such as baggage carts, tugs, and other similar equipment; and (2) flight property, i.e., Delta's aircraft. The denominator consisted of the value of Delta's property everywhere. Delta used a mileage formula to determine the value of the aircraft to be included in the property factor. The numerator of the mileage formula was comprised of the miles traveled by Delta's aircraft from Virginia's border to an arrival airport located in Virginia and the miles traveled from a departure airport located in Virginia to the Commonwealth's border. Delta did not include the overflight miles in the numerator of the mileage formula. The denominator *132 contained miles flown by Delta's aircraft everywhere. To compute the sales factor, Delta used the same mileage formula to determine passenger and cargo revenue.
Delta used this method to determine its Virginia income tax liability not only for the four tax years involved in this appeal but also for prior tax years. In fact, the Department audited Delta for the tax years ending June 30, 1983, June 30, 1984, and June 30, 1985. As a result of that audit, the Department became aware of the fact that Delta did not include its overflight miles in the numerator of the mileage formula that it used to calculate the property and sales factors, but the Department did not propose any change in Delta's apportionment method. However, after the Department audited Delta for the tax years ending June 30, 1987, and June 30, 1988, the Department issued an audit report in which it included Delta's overflight miles in the numerator of the mileage formula, thereby increasing the amount of Delta's income tax liability.[1]
On October 25, 1989, the Department issued a "Notice of Assessment" to Delta for additional income tax due for each of those tax years. In accordance with Code § 58.1-1821, Delta protested the assessments. In a letter dated September 21, 1990, the Tax Commissioner concluded that the assessments were "correct and ... now due and payable," and advised Delta that it would receive an updated bill reflecting accrued interest. Public Document Number (P.D. No.) 90-173. The Tax Commissioner also informed Delta that the Department had previously addressed the issue concerning overflight miles in P.D. No. 90-158.
On October 24, 1990, the Department sent Delta two additional documents for the tax years ending June 30, 1987, and June 30, 1988. Each one of those documents was titled "Notice of Assessment" and listed the "Date of Assessment" as "10-25-89 AS OF 10-24-90." The total amount due and payable in each "Notice of Assessment" was the sum of the corporate income tax assessed in each of the October 1989 notices plus accrued interest. At the bottom of each October 1990 "Notice of Assessment," the Department added the words "Updated Bill."
Subsequent to receiving the second "Notice[s] of Assessment," Delta filed another protest. The Tax Commissioner responded to the protest on March 19, 1991, in P.D. No. 91-41, and again upheld the validity of the assessments. In that response, the Tax Commissioner did not indicate that the October 24, 1990 notices were not to be construed as "Notice[s] of Assessment."
On February 21, 1991, the Department sent Delta a "Consolidated Bill Statement" reflecting the total amount of assessed taxes due and owing for the tax years ending June 30, 1987, and June 30, 1988, plus accrued interest. On May 6, 1991, Delta paid $759,202 to the Department under protest. Delta then filed an application to correct an erroneous tax assessment in the circuit court on October 22, 1993.
The Department also audited Delta's corporate income tax returns for the tax years ending June 30, 1989, and June 30, 1990. On September 16, 1992, the Department issued "Notice[s] of Assessment" to Delta for additional income taxes due for those two years based on the Department's inclusion of overflight miles in the numerator of the mileage formula. In a letter dated December 14, 1992, Delta protested the assessments contained in the September 1992 notices. On February 25, 1993, the Tax Commissioner, in P.D. No. 93-38, upheld the legality of the assessments. Delta then paid $798,505 to the Department on March 24, 1993. That figure represented the amount of the additional income taxes plus accrued interest for the tax years ending June 30, 1989, and June 30, 1990. Thereafter, Delta amended its application *133 to correct an erroneous tax assessment to include the 1989 and 1990 tax years.
After a bench trial on July 7, 1997, the circuit court, in a memorandum opinion and judgment order dated January 27, 1998, determined that Delta was not required to include its overflight miles in the numerator of the mileage formula. Accordingly, the court held that Delta was entitled to a refund in the amount of $485,885 and $219,618, for the tax years ending June 30, 1989, and June 30, 1990, respectively, plus interest from the date of Delta's payments to the Department. However, the court concluded that Delta's application to correct an erroneous tax assessment for the tax years ending June 30, 1987, and June 30, 1988, was time-barred. We granted the Department this appeal and Delta's assignment of cross-error.
II.
Because Delta derives income from business activities that it conducts both within and without the Commonwealth, Delta is required to "allocate and apportion its Virginia taxable income as provided in §§ 58.1-407 through 58.2-420." Code § 58.1-406. To effect this apportionment of income, Delta must use a three-factor method consisting of a property factor, a payroll factor, and a sales factor. Code § 58.1-408. The numerator of the property factor is the "average value of the corporation's real and tangible personal property owned and used or rented and used in the Commonwealth during the taxable year." Code § 58.1-409. The denominator "is the average value of all the corporation's real and tangible personal property ... located everywhere." Id. "The value of movable tangible personal property used both within and without the Commonwealth shall be included in the numerator to the extent of its utilization in the Commonwealth." Code § 58.1-410. Finally, "[t]he sales factor is a fraction, the numerator of which is the total sales of the corporation in the Commonwealth during the taxable year, and the denominator of which is the total sales of the corporation everywhere during the taxable year...." Code § 58.1-414. Sales "are in the Commonwealth if ... [t]he income-producing activity is performed in the Commonwealth...." Code § 58.1-416(1).
The issue in this case involves the meaning of the phrase "in the Commonwealth" as used in these statutes. Since the Department is charged with the responsibility of administering and enforcing the tax laws of the Commonwealth under Code § 58.1-202, its interpretation of a statute is entitled to great weight. Webster Brick Co., Inc. v. Dep't of Taxation, 219 Va. 81, 84-85, 245 S.E.2d 252, 255 (1978). The Department contends that the phrase "in the Commonwealth" encompasses overflights and that the circuit court erred by not accepting its interpretation of the phrase. The Department also points out that its tax assessments are presumed correct and that "the burden is on the taxpayer to prove that the assessment is contrary to law or that the administrator has abused his discretion and acted in an arbitrary, capricious or unreasonable manner." Commonwealth, Dep't of Taxation v. Lucky Stores, Inc., 217 Va. 121, 127, 225 S.E.2d 870, 874 (1976).
The circuit court found that the phrase "in the Commonwealth" is unambiguous, and we agree. When a statute, as written, is clear on its face, this Court will look no further than the plain meaning of the statute's words. City of Winchester v. American Woodmark Corp., 250 Va. 451, 457, 464 S.E.2d 148, 152 (1995). The phrase "in the Commonwealth" is not synonymous or interchangeable with the phrase "over the Commonwealth." "The preposition in is simply not the same as the preposition over." Republic Airlines, Inc. v. Wisconsin Dep't of Revenue, 159 Wis. 2d 247, 464 N.W.2d 62, 66 (Ct.App.1990); see also Northwest Airlines, Inc. v. State Tax Appeal Bd., 221 Mont. 441, 720 P.2d 676, 678 (1986).
Indeed, the General Assembly has made such a distinction between the words "in" and "over" in other statutes. For example, a pilot can arrest any person "who interferes with ... the operation of the aircraft in flight over the territory of this Commonwealth or to a destination within this Commonwealth." Code § 5.1-20. (Emphasis added.) Similarly, Code § 4.1-209(1)(d) authorizes the issuance *134 of licenses to sell beer and wine in aircraft while in transit "anywhere in or over the Commonwealth."[2] (Emphasis added.)
"We ... assume that the legislature chose, with care, the words it used when it enacted the relevant statute, and we are bound by those words as we interpret the statute." Barr v. Town & Country Properties, Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990). Accordingly, we conclude that the plain meaning of the phrase "in the Commonwealth" as used in Code §§ 58.1-409, -410, -414, and -416 does not include Delta's overflights since, during such flights, Delta's aircraft neither land at nor depart from an airport situated in Virginia and Delta does not utilize any benefit or service provided in the Commonwealth.
This conclusion does not, however, resolve this appeal. The circuit court found that the Department will allow an airline to apportion its income by utilizing a formula based on either mileage or departures.[3] Since Delta has elected to use the mileage formula and has not disputed the legality of the departures method, the Department asserts that Delta cannot contest the Department's inclusion of overflight miles in the numerator of the mileage formula. We find no merit in the Department's position.
Delta is not challenging the validity of a formula to apportion income based on mileage. Instead, it is contesting the Department's application of that formula in which the Department included overflight miles in the numerator of the fraction used to calculate the property and sales factors. If Delta were precluded from challenging the validity of the Department's methodology just because it has elected to use a mileage formula, the legality of the Department's present position would continually evade judicial review. Cf. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982) ("[J]urisdiction is not necessarily defeated ... if the underlying dispute ... is one `capable of repetition, yet evading review.'" (quoting Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976))). Moreover, for the tax years at issue in this case, Delta used the method that it had previously employed, and the Department had accepted in prior audits, to determine Delta's Virginia income tax liability. The Department did not advise Delta of its new position with regard to taxing overflights until it issued the October 1989 audit report. Thus, we conclude that Delta is not estopped from challenging the Department's methodology and assessment of additional income taxes.
Finally, the Department assigns error to the remedy that the circuit court employed after finding in favor of Delta. The Department asserts that the proper remedy would have been to calculate Delta's Virginia income tax liability by using the alternative departures formula. However, the Department did not request that the circuit court adopt this remedy. The only issue before the court was whether Delta's overflight miles should be included in the numerator of the mileage formula used to calculate the property and sales factors. Moreover, the record is devoid of evidence with regard to the amount of Delta's tax liability if a departures method were utilized. Thus, as authorized *135 in Code § 58.1-1826, the circuit court correctly ordered a refund of taxes to Delta.
We now address Delta's assignment of cross-error. Delta contends that the circuit court erred in determining that Delta's application to correct an erroneous tax assessment was not timely filed with regard to the tax years ending June 30, 1987, and June 30, 1988. Delta acknowledges that the applicable limitation period for filing such an application for relief is "three years from the date such assessment is made." Code § 58.1-1825. The circuit court held that the three years started running on October 25, 1989, the date of the first notices sent by the Department to Delta for these two tax years. However, Delta contends that the three years should have been computed from October 24, 1990, the date of the second "Notice[s] of Assessment."
The term "assessment" is defined in Code § 58.1-1820(2) to
include a written assessment made pursuant to notice by the Department of Taxation.... Assessments made by the Department of Taxation shall be deemed to be made when a written notice of assessment is delivered to the taxpayer by an employee of the Department of Taxation, or mailed to the taxpayer at his last known address.
The Department has further addressed the terms "assessment" and "Notice of Assessment" in the following portion of a definitional regulation:
1. When referring to taxes administered by the Department, the terms "assess" and "assessment" mean the act of determining that a tax (or additional tax) is due and the amount of such tax. An assessment may be made by the Department or by the taxpayer (self-assessment).
2. When an assessment is made by the Department, a written notice of the assessment must be delivered to the taxpayer by an employee of the Department or mailed to the taxpayer at his last known address. The date that such notice is mailed or delivered is the date of the assessment for the purpose of any limitations on the time in which administrative and judicial remedies are available and for any other administrative purposes.
3. The written notice of an assessment made by the Department is made on a form clearly labeled "Notice of Assessment" which sets forth the date of the assessment, amount of assessment, the tax type, taxable period and taxpayer. Subsequent statements which merely report payments and additional accrued interest are not assessments or notices of another assessment. An assessment may be preceded by correspondence proposing adjustments to a filed return based on an audit or other information received by the Department. Such correspondence is not an assessment but is intended to provide taxpayers an opportunity to correct any errors before an assessment is made.
23 VAC XX-XX-XXX(E).
The Department contends that the 1990 "Notice[s] of Assessment" were merely updated bills because the "Date of Assessment" was still listed as October 25, 1989, the total amount of taxes owed was the sum of the original amounts assessed in the 1989 notices plus accrued interest, the "Bill No[s]." remained the same, and the phrase "Updated Bill" appeared on the face of the documents. The Department also relies upon the fact that Delta received the 1990 notices after the Department issued P.D. No. 90-173 in which it advised Delta that an updated bill would be forthcoming.
Delta, however, argues that the 1990 notices should be construed as "Notice[s] of Assessment." Delta first points to the fact that the forms used by the Department in 1990 were titled "Notice of Assessment" and were identical to the ones issued by the Department for the 1989 assessments. Additionally, Delta notes that it filed a protest within 90 days of the date of the assessments pursuant to information provided to it on the 1990 notices. The Tax Commissioner responded to that protest in P.D. No. 91-41 without asserting that the notices were not to be construed as "Notice[s] of Assessment." Finally, Delta asserts that the Department did not adopt its present position until Delta filed its application to correct an erroneous tax assessment.
*136 This Court addressed an analogous situation in Knopp Bros., Inc. v. Dep't of Taxation, 234 Va. 383, 362 S.E.2d 897 (1987). The taxpayer in that case had received a letter from the Department, mailed on July 18, 1978, that summarized the results of an audit and contained "copies of `assessments.'" Id. at 385, 362 S.E.2d at 898. After the taxpayer objected to the audit results, the Department conducted several more audits. Eventually, on October 27, 1981, the Department sent the taxpayer a "Notice of Assessment" that showed the "Date of Assessment" as April 1, 1981. Id., 362 S,E.2d at 899. In that notice, the Department included the total amount of taxes, penalty, and interest due, and advised the taxpayer that it had 90 days within which to file a written protest to the assessment. Following another audit, the taxpayer received a "Notice of Corrected Assessment" dated April 12, 1983. The taxpayer then filed an action to correct an erroneous tax assessment. Id. The trial court held that the Department made the original assessment on July 18, 1978, and that the statute of limitations began to run on that date, thus making the taxpayer's action untimely. Id. at 386, 362 S.E.2d at 899.
On appeal, we framed the issue as "whether any of the announcements of a tax due made by the department after the 1978 assessment were merely adjustments of an original assessment or were themselves original assessments which would establish a new period of limitation for filing suit." Id. Citing Code 58.1-1820(2), we concluded that the 1981 document contained all the indicia of "a written assessment made pursuant to notice." Id. at 387, 362 S.E.2d at 899. We further stated that "[t]he department's ... contention that the document is not an assessment at all, but merely an adjustment of some original assessment made earlier, is in direct conflict with the department's description of the document made at the time it was issued." Id. Accordingly, we ruled that the action was timely filed and reversed the judgment of the trial court. Id., 362 S.E.2d at 900.
The Department contends that the decision in Knopp Bros. is not controlling primarily because the Department had sent that taxpayer several statements showing conflicting amounts due, unlike the present situation, and because 23 VAC XX-XX-XXX(E) was not in effect when the Department made the assessment in Knopp Bros. We do not agree.
Contrary to the Department's position, we believe that 23 VAC XX-XX-XXX(E) does not change the result in Knopp Bros. The regulation states that the Department's written notice of an assessment "is made on a form clearly labeled `Notice of Assessment.'" It further provides that "[s]ubsequent statements which merely report payments and additional accrued interest are not assessments or notices of another assessment." The April 1981 notice that the taxpayer in Knopp Bros. received was on a form labeled "Notice of Assessment" and was not merely a subsequent statement showing payments and accrued interest.
In the present case, the 1990 notices that the Department sent to Delta were on forms clearly labeled "Notice of Assessment." In fact, the forms were identical to those used by the Department when it issued the 1989 "Notice[s] of Assessments," which the Department asserts should be used to calculate when the statute of limitations began to run. Even though the 1990 notices contained the additional words "Updated Bill" and referenced the "Date of Assessment" as "10-25-89 AS OF 10-24-90," the Department did not delete the title "Notice of Assessment" and did not indicate, in any manner, that these 1990 notices were not to be construed as "Notice[s] of Assessments." Indeed, the fact that the Department responded to Delta's protest to the 1990 notices is in conflict with the Department's present position that those notices should not be treated as "Notice[s] of Assessment."
Relying on 23 VAC XX-XX-XXX(E), the Department, nevertheless, asks us to construe the 1990 notices as merely subsequent statements reporting additional accrued interest. The Department sent such a statement to Delta on February 21, 1991, for these two tax years. That document's appearance was entirely different from the "Notice of Assessment" forms used by the Department for the 1989 and 1990 notices, and, in fact, was titled "Consolidated Bill Statement." Thus, we *137 conclude, as we did in Knopp Bros., that the 1990 "Notice[s] of Assessment" contained "all the external decorations of `a written assessment made pursuant to notice,' Code § 58.1-1820(2)." 234 Va. at 387, 362 S.E.2d at 899.
Pursuant to Code § 58.1-1820(2) and 23 VAC XX-XX-XXX(E), the date that the "Notice of Assessment" is mailed or delivered to the taxpayer is the date that the assessment is made for the purpose of determining when any applicable period of limitations begins to run. Therefore, we conclude that Delta's application to correct an erroneous tax assessment, filed on October 22, 1993, for the tax years ending June 30, 1987, and June 30, 1988, was timely filed within three years from the October 24, 1990 "Notice[s] of Assessment".
III.
For these reasons, we will affirm the circuit court's judgment refunding taxes and interest to Delta for the tax years ending June 30, 1989, and June 30, 1990. We will reverse and remand the judgment with respect to the determination that Delta's application to correct an erroneous tax assessment for the tax years ending June 30, 1987, and June 30, 1988, was time-barred. On remand, the circuit court shall determine the amount of refund to which Delta is entitled for those two tax years.[4]
Affirmed in part, reversed in part, and remanded.
NOTES
[1] The Department has not promulgated any regulations regarding overflight miles. However, in an issue paper titled "Apportionment of Airline Income," dated September 8, 1989, the Department acknowledged that there is no statutory formula specifically applicable to the airline industry and that the airline industry is, therefore, subject to the three-factor formula. The Department also stated in the paper that statutory authority allows the Department to use an alternative method of apportioning income only when a corporation requests such a method, the statutory method is inequitable, and the tax under the alternative method is lower than the tax under the statutory method.
[2] Other examples include Code § 5.1-17, which makes it unlawful for a person to hunt "during such time as such person is in flight in an aircraft in the airspace over the lands or waters of this Commonwealth," and Code § 5.1-37, which refers to airports and other air navigation facilities "in, over and upon any public waters of this Commonwealth."
[3] In P.D. 90-158 and 93-38, the Department stated that use of a formula based on departures was an acceptable alternative to a method utilizing mileage. However, in its September 1989 issue paper, the Department expressed the following concerns with regard to a departures method:
[T]he use of a departure factor would be a significant change in policy from the department's historic use and acceptance of mileage factors in one form or another.... In view of the anticipated reaction of the airline industry[,]... it is recommended that a regulation project be initiated to formally propose the use of departures for airline property and sales factors so that the airline industry would have the opportunity to make its views known under the Administrative Process Act.
The Department has not yet promulgated any regulations regarding the use of a departures method for the apportionment of income by the airline industry.
[4] Because of our interpretation of the phrase "in the Commonwealth," we do not need to address the remaining issues raised by the Department. | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1723735/ | 699 So. 2d 837 (1997)
STATE of Florida, Appellant,
v.
Ryan DANIELS and William Medico, Appellees.
No. 96-1636.
District Court of Appeal of Florida, Fourth District.
October 1, 1997.
Robert A. Butterworth, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellant.
Steven W. Gomberg, West Palm Beach, for appellees.
PARIENTE, Judge.
The state appeals from the trial court's order that set aside jury verdicts of guilt and dismissed the informations against both defendants. Because the trial court erroneously concluded that the failure of the police to record the drug transaction on tape constituted *838 a denial of due process, we reverse the order of dismissal.
Defendants were convicted of attempted purchase of cocaine. The charges arose from a reverse sting operation conducted by the Palm Beach County Sheriff's Office. On the evening in question, Officer Pleasant was posing as a drug dealer when, according to his testimony, defendants attempted to purchase cocaine from him.
Officer Pleasant was equipped with a Unitel one-way transmitting unit, which allowed other officers to monitor the drug transactions. A second officer was positioned in a van nearby with a clear view of Officer Pleasant and defendants. According to Officer Pleasant, the second officer was able not only to observe the transaction, but to hear it by utilizing a Unitel monitoring unit. It is uncontroverted that no tape of the transaction involving defendants ever existed.
The reverse sting operation was typical of others previously conducted by the sheriff's office. The sheriff's office conducted as many as thirty reverse sting operations per week. According to trial testimony, the Unitel device was never used to record reverse sting operations but was instead used as a precautionary measure to monitor the transaction in case the undercover officer needed assistance.
In granting the dismissal, the trial court relied on United States v. Bryant, 439 F.2d 642 (D.C.Cir.1971). In Bryant, a potentially exculpatory tape recording of a drug transaction involving the defendants was made but later lost. The Bryant court held that the failure to preserve the recording denied defendants their due process rights. The trial court's order states that the "only distinction" between this case and Bryant is that in this case "the tape was intentionally not made." However, this is a distinction with a difference. Further, even if Bryant were factually on point, it is no longer good law because due process claims involving a failure to preserve evidence are now governed by Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). See In re Sealed Case, 99 F.3d 1175, 1177 (C.A.D.C. 1997) (recognizing abrogation of Bryant); see also United States v. McKie, 951 F.2d 399, 403 (D.C.Cir.1991).
Depending on the individual facts of the case, the failure to preserve evidence already gathered may constitute a due process violation requiring dismissal of the complaint. See Youngblood, 488 U.S. at 55, 109 S.Ct. at 335-36; see also Kelley v. State, 569 So. 2d 754, 756 (Fla.1990); Carter v. State, 665 So. 2d 1112, 1114 (Fla. 4th DCA 1996). If the trial court is unable to determine whether the evidence would have been exculpatory, a due process violation arises only if there is a finding of bad faith in the failure to preserve the evidence. See Youngblood, 488 U.S. at 58, 109 S.Ct. at 337-38. A due process violation also arises where the prosecution suppresses material evidence favorable to the accused. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Neither Youngblood nor Brady applies here because a tape of the transaction was never made.
There is no case law or statute imposing a duty on law enforcement to record a criminal transaction or to perform any particular tests even where, as here, the agency has the means to do so:
Law enforcement does not have a constitutional duty to perform any particular tests. Certain duties arise, however, once a policy of gathering evidence through certain tests is established. Once law enforcement has gathered and taken possession of evidence, a duty of preservation in some form attaches.
State v. Powers, 555 So. 2d 888, 890 (Fla. 2d DCA 1990) (citations omitted); cf. Bartlett v. Hamwi, 626 So. 2d 1040 (Fla. 4th DCA 1993).
In Powers, the defendants argued that their due process rights were violated because the sheriff's department did not videotape their performance of the field sobriety tests. The defendants testified that they believed a videotape of the tests would have proved that they performed the field sobriety tests better than the written reports indicated. Although there was testimony from the sheriff's department that it had never videotaped drivers performing field sobriety tests, *839 the trial court concluded that intentionally failing to preserve potentially exculpatory evidence demonstrated bad faith constituting a violation of due process. See Powers, 555 So.2d at 889.
The record here also does not reveal, nor did defendants ever assert, that bad faith on the part of law enforcement led to the decision not to tape the drug transaction. See Powers, 555 So.2d at 891. "[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process." Youngblood, 488 U.S. at 58, 109 S.Ct. at 337; see also Merck v. State, 664 So. 2d 939, 942 (Fla.1995).
In reversing the trial court's order dismissing the DUI charges, the second district held that the issue was "not the failure to preserve evidence, but the failure to gather and preserve evidence in a particular manner." Id. at 891. Even assuming that the tape might have been exculpatory if the tests had been videotaped, the failure to record them did not deny the defendants the means to defend against the test results. Id. The defendants retained the right to cross-examine the officers who witnessed the tests and to present other evidence concerning the reliability of the tests. Id. Further, there was no showing that the sheriff's department "in bad faith" failed to videotape the defendants' performance of the tests. Id.
Here, in its order, the trial court expressed concern that the state based its case solely on the testimony of Officer Pleasant, who conducted the drug buy. Officer Pleasant made no official report or recording of the transaction. However, defendants were not denied the means to defend the charges by the failure of the police to record the transaction. Defendants were able to cross-examine the police officer and challenge his ability to recall the specifics of the transaction, absent a report or a tape to assist him. In fact, defendants elicited on cross-examination that Officer Pleasant had engaged in between 250 to 600 transactions during the course of his work while posing as a drug dealer. Approximately 150 of these arrests had taken place at the same intersection where he encountered defendants. Defendants took the stand and recounted an innocent version of their encounter with Officer Pleasant. Defendants were certainly able to argue to the jury that reasonable doubt was created by the absence of corroborating evidence.
If we were to uphold the trial court's order in this case, we would in effect be imposing an unbending legal requirement, of constitutional dimension, that all drug transactions must be taped when law enforcement has the readily-available means to do so.
If we were to require the state in every case, in its investigation of a crime, to leave no stone unturned and preserve the evidence obtained in a manner satisfactorily only to the accused, it would shift the line of fairness between the rights of an accused and the rights of society totally to one side.
Powers, 555 So.2d at 890 (citation omitted). Because the failure to record the reverse sting transaction was not done in bad faith and did not deprive defendants of the ability to defend against the charges, the failure to tape record this transaction did not render the convictions constitutionally infirm.
Our reversal of the trial court's order will not end the trial court's inquiry. Defendants' motion for new trial raised several alternate grounds, including the specific assertion that the verdict was contrary to the weight of the evidence. The trial court possesses the authority to order a new trial if it determines that the verdict is against the weight of the evidence. See State v. Smyly, 646 So. 2d 238, 241(Fla. 4th DCA 1994); Fla. R.Crim. P. 3.600(a)(2). "In essence, the trial court acts as a safety valve by granting a new trial where `the evidence is technically sufficient to prove the criminal charge but the weight of the evidence does not appear to support the jury verdict.'" State v. Hart, 632 So. 2d 134, 135 (Fla. 4th DCA 1994) (quoting Robinson v. State, 462 So. 2d 471, 477 (Fla. 1st DCA 1984)).
As the order dismissing the charges makes abundantly clear, the trial court had serious questions about the weight and credibility of the state's evidence. However, the trial court never directly addressed and never ruled on defendants' request for a new trial, *840 choosing instead a course that defendants did not requestthe more extreme remedy of dismissing the charges. See Smyly, 646 So.2d at 242. Accordingly, we reverse the order of dismissal but remand for the original trial judge assigned to the case to rule on the specific grounds raised in the motion for new trial.
POLEN and KLEIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260770/ | 378 Pa. Superior Ct. 613 (1988)
549 A.2d 225
Michol Lea LEASURE
v.
James Paul LEASURE, Appellant.
Supreme Court of Pennsylvania.
Submitted July 5, 1988.
Filed October 18, 1988.
*614 John H. Moore, Erie, for appellant.
Marilyn Woolery, Assistant District Attorney, Erie, for appellee.
Before BROSKY, JOHNSON and WATKINS, JJ.
BROSKY, Judge:
This is an appeal from an order entered by the trial court denying appellant's petition for modification or suspension of child support payments during the period of appellant's incarceration.
The issue currently before this court is: whether the trial court erred in refusing to suspend and/or modify the order of support. We respectfully reverse the decision of the trial court and remand this case with instructions.
*615 An appellate court will not overturn a support order entered by the trial court absent an abuse of discretion. Commonwealth ex rel. Eppolito v. Eppolito, 245 Pa.Super. 93, 369 A.2d 309 (1976). However, we must bear in mind that we have before us a case of first impression at the appellate level. Thus, the learned trial judge, while wrestling with this decision, had no appellate authority upon which to rely for guidance.
Appellant, through his attorney, appeared before the trial court on October 27, 1987, for a hearing on his petition to suspend the previously entered child support order. That order had directed appellant to pay $16.70 per week in child support for his minor child.
Appellant based his request for suspension of child support payments on his incarceration. He had been sentenced on August 4, 1987 to one to two years imprisonment for crimes unconnected to his support obligation.
Child support orders may be modified only when evidence produced at a hearing establishes a substantial change in circumstances. Jaskiewicz v. Jaskiewicz, 325 Pa.Super. 507, 473 A.2d 183 (1984). Further, the party seeking to modify a support order bears the burden of demonstrating such a change of circumstances as will justify a modification. Commonwealth ex rel. Haertsch v. Haertsch, 267 Pa.Super. 283, 406 A.2d 805 (1979). Thus, the burden is on appellant to prove a material change of circumstances.
The trial court, in denying appellant's request for suspension/modification, reasoned that, not only is incarceration an act not sufficiently "permanent" to allow for modification, see Jaskiewicz, supra., but also, that because it was appellant's voluntary act which put him behind bars, it is a situation analogous to a parent voluntarily reducing his salary to avoid paying support. See, Wing v. Wing, 338 Pa.Super. 516, 488 A.2d 11 (1985). We disagree.
While it is true that case law has stated that the record must show a "permanent change in . . . circumstances", see, *616 Brake v. Brake, 271 Pa.Super. 314, 413 A.2d 422 (1979), Bell v. Bell, 228 Pa.Super. 280, 323 A.2d 267 (1974), the cases did not specifically define "permanent". Rather, the Court failed to find any material change in circumstances, thus, leaving the issue of permanence unaddressed.
Instantly, appellant was sentenced to serve 1 to 2 years in prison. While appellant may only serve 9 months with pre-release, he may also serve the entire 2 year period. The period appellant will serve remained indefinite at the time of the hearing. We choose to compare this concept of permanence to the situation in which a parent loses his job. There, the parent's "change in circumstances" is indefinite in that he may secure employment within a very short time, or he may continue to be out of work for several years. Thus, we will focus upon, not only the period of time involved, but also, the definiteness of time and irreversibility of the circumstances, in our assessment of permanence. Accordingly, we do not feel that appellant's motion should be denied because he will not be incarcerated for the remainder of his life.
As for the trial court's analogizing incarceration to a voluntary decrease in income, we cannot agree. Incarceration is usually an involuntary situation. While it may be possible to envision a parent avoiding child support by going to prison, we find it highly unlikely in the instant case, where appellant was paying $16.70 per week and where there were no allegations that appellant ever defaulted on his payments previously.
We must note here that, the rationale used by the trial court is identical to the reasoning used by the Supreme Court of Nebraska in Ohler v. Ohler, 220 Neb. 272, 369 N.W.2d 615 (1985). There, the court refused to modify a support order when the father was incarcerated for "voluntary" criminal behavior. We agree with the trial court instantly that appellant was not forced to engage in criminal activity. We, however, are more persuaded by the dissent of Chief Justice Krivoska in Ohler, who recognized that barring an incarcerated and indigent parent from seeking *617 a modification provides no present benefit to the child. Imposing upon the incarcerated parent a continuing support obligation, beyond his ability to pay, does not help the child. Rather, it simply adds to an accumulating burden which falls upon the parent when he is least able to bear it.
This same idea has been espoused by other jurisdictions who have refused to force an incarcerated parent to pay support unless that parent possesses another asset from which funds could be generated. Matter of Vetternack, 334 N.W.2d 761 (Iowa 1983) (Father had equity in a house to be used to provide support for his children); Foster v. Foster, 471 N.Y.S.2d 867, 99 A.D.2d 284 (1984) (Support payments suspended even where father had equity in a home, since court would not force wife to sell the home to meet father's obligation); Matter of Edmonds, 53 Or.App. 539, 633 P.2d 4 (1981). (Parent is not liable for payments while incarcerated unless it is affirmatively shown that he or she has income or assets to make such payments).
With regard to appellant's assets, the following exchange took place:
MR. MORTON: Do we know what other asset he might have, Judge, that would allow him to pay support.
THE COURT: Was he a PD client?
MR. MOORE: No, he was a private client. He wasn't working at the time. His parents are friends of mine, and he didn't have any real estate. I think he had a car but I think he sold it. As far as I know he has very few assets. He was working in a business for his parents and they were paying him. He will have employment again when he gets out of jail, there's no question about that. But I don't think there's anything that would be of any use
.....
THE COURT: Does he get any money in jail?
MR. MOORE: Not as far as I know.
MRS. LEASURE: He gets paid and he told me he gets paid. I don't know how much he does.
THE COURT: Twenty cents an hour.
*618 THE SHERIFF: Highest is about sixty-five cents.
MRS. LEASURE: Which is nothing, but neither is what he pays.
(N.T. pp. 5 and 6). Admittedly, this does not appear to be an indepth probe of appellant's assets, which this court would prefer. However, it does evidence the fact that appellant's assets were considered by the trial court and that both sides had an opportunity to address the issue. Further, we must recall that the trial court did not base its decision denying relief upon appellant's affirmative ability to pay, but rather upon the idea that appellant's "voluntary" and "temporary" situation should afford him no relief. Thus, we are satisfied that appellant is unable to pay support during his incarceration.
We cannot, however, ignore the minor child's needs or appellant's overall duty to support his son. Therefore, while we cannot, in good conscience, force appellant to do the impossible by paying support from his prison cell, we will order the trial court, upon appellant's release from prison and upon his securing a job, (which his attorney assured us would occur immediately upon his release), to review the support order which we are temporarily suspending. The trial court is to reassess appellant's earning capacity, bearing in mind the fact that appellant's son was forced to go without his father's financial support for an extended period of time. Should the trial court then find the current order to be insufficient, we direct the trial court to enter an appropriate support order at that time.
Order of the trial court reversed. Order of support suspended with instructions to the trial court to review the order in accordance with this opinion. Jurisdiction relinquished.
JOHNSON, J., files a dissenting opinion.
JOHNSON, Judge, dissenting:
I respectfully dissent. The majority opinion finds that the trial court erred in refusing to suspend the child support *619 order of a father serving a term of imprisonment.[1] I conclude that this record cannot support such a finding.
The procedural beginnings of the present action are somewhat muddied. No petition for modification of the existing 1984 child support order was actually filed. Pizza Plus, which is owned by the parents of appellant James Paul Leasure and was appellant's employer, notified the Adams County Support Counseling Office that appellant would be incarcerated for approximately one year. Presumably this was done by way of explanation for the failure to attach appellant's wages pursuant to the wage attachment ordered November 19, 1985 consisting of $22.00 weekly ($16.70 support, $3.30 arrears, $2.00 court costs). On August 16, 1987, the Hearing Officer recommended support payments in the amount of $16.70 weekly to remain in effect. By letter dated August 17, 1987 but docketed September 3, 1987, appellant raised objections to the recommendations of the Hearing Officer. In my view it is this letter from appellant that should be considered as his petition for modification.[2] In his letter appellant states "I have never been unemployed until now. I am a hardworking individual and I will have employment again." Appellant also states that "[w]hen I eventually reach Mercer [State Correctional Facility], I will definitely be working. At that time I will arrange to send Jeremy my obligation. The prison will be my employer and should deduct the payments from my earnings."
On appeal appellant contends that the trial court erred in refusing to suspend and/or modify his child support order when the uncontradicted evidence established that he was *620 incarcerated, without any income, and would continue to remain so for at least a nine-month period.
In Fortune/Forsythe v. Fortune, 352 Pa.Super. 547, 508 A.2d 1205 (1986), we summarized the principles governing modification of child support:
First, that the party seeking to modify a support order bears the burden of demonstrating such a change of circumstances as will justify a modification; second, that only material and substantial changes in circumstances, as proven by competent evidence, will warrant modification of a support order; and, third, that a modification may only be based upon facts appearing in the record which show such permanent change in circumstances as to require such modification. (Citations omitted.)
352 Pa.Super. at 547, 508 A.2d at 1209.
In proceedings to modify a support order, then, it is the petitioner who has the burden of proving that there has been a material change in circumstances sufficient to warrant modification of the existing order. Commonwealth v. Vogelsong, 311 Pa.Super. 507, 457 A.2d 1297 (1983). It is well settled that we cannot disturb a trial court's order of support absent a clear abuse of discretion. Shindel v. Leedom, 350 Pa.Super. 257, 264, 504 A.2d 353, 355-56 (1986). A finding of such abuse is not lightly made and must rest upon a showing of clear and convincing evidence. Id. The trial court must be upheld on any valid ground. Id.
The trial court analogized incarceration for willful criminal behavior to voluntary withdrawal from employment, concluding that in neither case will the parent be allowed to escape his or her duty of child support. I would uphold the decision of the trial court on a different rationale. In Matter of Vetternack, 334 N.W.2d 761 (Iowa 1983), upon which the majority relies the Iowa Supreme Court noted that current inability to pay has become less a consideration in actions to modify child support than long-term earning capacity. This can be compared to the requirement in this Commonwealth that "modification can only be based on a *621 permanent change of circumstances." In the present case, appellant, at the same time that he asks to have his support order suspended, implicitly attests that his permanent capacity to support his child will be unaffected. Counsel also assures the court that appellant will always have a job. In addition, appellant also informed the court that while incarcerated, he will arrange to have his prison wages forwarded to meet his child support obligation.
In Ohler v. Ohler, 220 Neb. 272, 369 N.W.2d 615 (1985), Chief Justice Krivosha, dissenting, stated:
The fact that a parent is incarcerated should . . . not, in and of itself, preclude a [trial] court from considering whether the facts justify a reduction in child support. Certainly, if the evidence reflects that the incarcerated parent has any assets, those assets should first be made available for the support of the child. But where, as here, it is made clear that at the present time the incarcerated parent has no assets and can do nothing about paying the child support judgment, the [trial] court should, at a minimum, be permitted to consider that fact.
Id., 220 Neb. at 279, 369 N.W.2d at 619.
The majority asserts that it finds this dissent persuasive but ignores that Ohler involved a defendant who was incarcerated and indigent. The facts in the present case differ. This appellant has what appears to be guaranteed employment on release from prison in a family business as well as prison wages which he will use for child support. Notwithstanding this difference, the majority concludes that appellant is unable to pay support during his incarceration. An examination of the testimony upon which the majority relies does not support this conclusion.
MR. MORTON: Do we know what other asset he might have, Judge, that would allow him to pay support.
THE COURT: Was he a PD client?
MR. MOORE: No, he was a private client. He wasn't working at the time. His parents are friends of mine, and he didn't have any real estate. I think he had a car but i think he sold it. As far as i know he has very few *622 assets. He was working in a business for his parents and they were again when he gets out of jail, there's no question about that. But I don't think there's anything that would be of any use
THE COURT: Does he get any money in jail?
MR. MOORE: Not as far as I know.
MRS. LEASURE: He gets paid and he told me he gets paid. I don't know how much he does.
THE COURT: Twenty cents an hour.
THE SHERIFF: Highest is about sixty-five cents.
MRS. LEASURE: Which is nothing, but neither is what he pays.
THE COURT: I'll take a look at it. If you find anything, John, let me know.
MRS. LEASURE: It means what you are doing is?
THE COURT: The arrears will accumulate.
MRS. LEASURE: Until?
THE COURT: Until he gets out and then we will have him and see what he's doing and have money put forward to pay arrears. . . .
(N.T. 10/27/87 at 5-6).
These testimonial speculations are not facts of record. The record fails to indicate whether the attorney, Mr. Moore, who spoke on behalf of appellant was actually representing appellant or appellant's parents, since no appearance was entered. Nevertheless, the majority appears to consider his unsworn conjecture as the equivalent of facts of record.[3]
I agree with Chief Justice Krivosha that incarceration, in and of itself, does not support a petition to modify an order of child support. In the present case, I find that the incarcerated appellant has failed to meet his burden to prove by competent evidence that modification of the child support order is warranted. Appellant having failed to *623 meet his burden of proof, I would affirm the trial court on the basis that appellant has suffered no material change in his ability to provide long term support to his child.[4]
For the foregoing reasons, I dissent.
NOTES
[1] Appellant had been sentenced to a term of one to two years' imprisonment at the Mercer State Correctional Facility on August 4, 1987.
[2] The trial court treated this letter as exceptions pursuant to Pa.R.C.P. 1910.12(e). If these objections are considered exceptions, they were untimely filed and we are without jurisdiction to hear this appeal. Pa.R.C.P. 1910.12(e) provides that matters not covered by exceptions filed within ten days after the date of the hearing officer's report are deemed waived.
[3] Arguendo, if the Adams County Sheriff has correctly stated the wage rate at Mercer State Correctional Facility as sixty-five cents ($.65) an hour, appellant will earn gross wages of $26.00 working a forty-hour week, $22.75 working a thirty-hour week.
[4] I would accordingly allow any arrearages to accrue, without prejudice to appellant's right to petition for remission of the accrued arrearages upon his release from prison with the proviso that appellant's prison wages are forwarded to the Adams County Court to meet his child support obligation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2760519/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
BETTY ARNOLD, : No. 710 MAL 2014
:
Petitioner :
: Petition for Allowance of Appeal from the
: Order of the Superior Court
v. :
:
:
APPEL & YOST, LLP, GRETA R. AUL, :
ESQ., ROBERT L. ARNOLD, ESQ., :
DAVID W. MERSKY, ESQ., ALBERT D. :
D'AGOSTINO, AND D'AGOSTINO & :
BRISELLI FINANCIAL GROUP, :
:
Respondents :
ORDER
PER CURIAM
AND NOW, this 12th day of December, 2014, the Petition for Allowance of
Appeal is DENIED. | 01-03-2023 | 12-13-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1946666/ | 472 So. 2d 1177 (1985)
C.U. ASSOCIATES, INC., a Florida Corporation, and Aetna Casualty and Surety Company, a Connecticut Corporation, Petitioners,
v.
R.B. GROVE, INC., a Florida Corporation, Respondent.
No. 66045.
Supreme Court of Florida.
July 11, 1985.
*1178 Steven W. Davis of Broad & Cassel, Bay Harbor Islands, for petitioners.
Fred A. Harrison, Jr., Miami, for respondent.
EHRLICH, Justice.
This case is before the Court because the decision of the Third District Court of Appeal, C.U. Associates v. R.B. Grove, Inc., 455 So. 2d 1109 (Fla. 3d DCA 1984), conflicts with decisions of the Fourth District, Monde Investments No. 2, Inc. v. R.D. Taylor-Made Enterprises, 344 So. 2d 871 (Fla. 4th DCA 1977), and the Second District, S.C.M. Associates v. Rhodes, 395 So. 2d 632 (Fla. 2d DCA 1981). We approve the decisions of the Second and Fourth Districts and quash the decision of the Third District.
Grove brought an action to foreclose a mechanics' lien against C.U. Associates and the provider of a transfer bond pursuant to section 713.24, Florida Statutes (1981). Prior to trial, C.U. offered to pay Grove the unpaid balance on the contract which was the subject of the dispute. Grove rejected the offer, claiming interest was also due on the amount. C.U. denied liability for the interest because no provision for the interest had been made in the contract.
At trial, Grove was awarded the amount unpaid on the original contract but was not awarded interest. In effect, Grove won what C.U. had initially offered to pay. The trial court did award Grove attorneys' fees as the prevailing party.
The Third District Court of Appeal affirmed the award of attorneys' fees, holding that an offer of settlement is irrelevant to the determination of "prevailing party" for purposes of the award of attorneys' fees pursuant to section 713.29. The district court also awarded further attorneys' fees for the appeal to that court.
The Third District relied on its earlier decision, Acadia Development Corp. v. Rinker Materials Corp., 419 So. 2d 1142 (Fla. 3d DCA 1982), review denied, 431 So. 2d 988 (Fla. 1983), and ruled, "[A] party prevails and is entitled to fees and costs when he receives a favorable judgment, and it is irrelevant that he turned down a more favorable prelitigation offer or that his victory in court is pyrrhic." 455 So. 2d at 1110. The Third District went on to hold that a defendant's sole recourse in attempting to cut off liability for plaintiff's attorney's fees in this context is to make a formal offer of judgment pursuant to Florida Rule of Civil Procedure 1.442.
We would first note that the rule and the statute are separate and that rule 1.442 is not dispositive of the award of attorney's fees under section 713.29, Florida Statutes (1981). Rule 1.442 awards costs to a defendant incurred after the making of an offer of judgment whereas section 713.29 provides for attorney's fees through trial and appeal to either party. Furthermore, the Third District's reading of the statute circumvents the very policy which underlies the statute.
The award of attorney's fees and costs to the prevailing party in a mechanic's lien action serves to encourage settlement of disputes before resorting to litigation. Forcing the loser to bear the costs and fees of producing the opponent's victory engenders a more realistic appraisal of the merits of the claim and discourages dilatory or obstructive tactics. If the statute were to apply as the Third District construes it, however, the burden of fair dealing and good-faith negotiation would lie only upon the defendant. To award attorneys fees and costs when any judgment is won, without reference to earlier, bona-fide good faith offers to settle the claim, allows the plaintiff a free throw of the dice in an attempt to squeeze the last penny out of *1179 the claim. In effect, the Third District's construction of the statute leaves the defendant ripe for extortion. Such a result defeats the laudable goal section 713.29 was intended to achieve.
Thus, we find that in order to be a prevailing party entitled to the award of attorney's fees pursuant to section 713.29, a litigant must have recovered an amount exceeding that which was earlier offered in settlement of the claim. Moreover, we note that the law does not require a futile act. Haimovitz v. Robb, 130 Fla. 844, 178 So. 827 (1937). Thus, where a bona-fide, good-faith settlement offer has been unequivocally refused, formal tender of the settlement amount is not required. See Sisco v. Rotenberg, 104 So. 2d 365 (Fla. 1958). Nonetheless, the offering party bears the burden of proof in subsequent litigation that the offer was in fact made, and made in good faith. The record now before us does not resolve that issue beyond dispute. We therefore remand to the trial court for factual determination of the validity of the offer made to Grove. If the court should find no legally sufficient offer was made, respondent would be the prevailing party and entitled to fees. If, however, the bona fide offer is proved, respondent shall not be entitled to attorney's fees.[1]
The decision of the Third District Court of Appeal is quashed and those of the Second District, in S.C.M. Associates, and of the Fourth District, in Monde Investments, are approved.
It is so ordered.
BOYD, C.J., and ADKINS, ALDERMAN and SHAW, JJ., concur.
OVERTON, J., concurs in result only.
McDONALD, J., dissents with an opinion.
McDONALD, Justice, dissenting.
I would approve the holding of the district court. I believe that the identity of the prevailing party should be determined by who prevails on the issues raised in the pleadings. Not only did C.U. Associates deny the debt sued upon but it raised a counterclaim. It lost its counterclaim, and, while Grove did not prevail on its claim of the disputed interest,[*] it did prevail on its claim of the principal due. At the time of trial C.U. denied this claim although in fact there was no real issue that at least this sum was due, subject only to the issues raised in the counterclaim. If C.U. wanted to avoid the payment of attorney fees, it should have admitted in the pleadings the amount it owed or should have taken timely advantage of the provisions of rule 1.442.
NOTES
[1] The issue has not been presented to us herein and therefore we do not decide whether under this circumstance petitioners are the prevailing parties and entitled to attorney's fees.
[*] Wrongfully so, I would say. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261037/ | 223 F. Supp. 712 (1963)
VOLASCO PRODUCTS COMPANY
v.
LLOYD A. FRY ROOFING COMPANY.
Civ. A. No. 3525.
United States District Court E. D. Tennessee, N. D.
June 19, 1963.
William C. Wilson, Knoxville, Tenn., for plaintiff.
Jonathan Burnett, Frantz, McConnell & Seymour, Knoxville, Tenn., Burton Y. Weitzenfeld, Lederer, Livingston, Kahn & Adsit, Chicago, Ill., for defendant.
ROBERT L. TAYLOR, Chief Judge.
On May 8, 1963 the Court entered an order which, among other things, denied plaintiff's motion for leave to file a supplemental complaint. Subsequently on May 21, the plaintiff filed a motion with the Court to reconsider its action in denying plaintiff's motion for leave to file a supplemental complaint. The propriety of the motion has been thoroughly briefed by both sides.
In its memorandum in support of the order denying leave to file a supplemental complaint, the Court gave as a reason that there would be a hiatus of a year between the recovery period allowable on the retrial and the period which would be covered by the supplemental complaint, and that the pitfalls and difficulties of trying two such cases simultaneously were patent, citing Mitchell v. RKO Rhode Island Corp., 148 F. Supp. 245, 247 (D.C.Mass.).
However, in its brief accompanying the motion to reconsider, plaintiff argued that there would be no hiatus in the recovery periods for the reason that the Federal Trade Commission had instituted a proceeding against the defendant on May 20, 1960 to investigate possible violations of Sect. 2 of the Clayton Act, as amended, 15 U.S.C. § 13, and Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, and that under 15 U.S.C. § 16(b) the statute of limitations would be suspended during the pendency of said proceeding. In making this argument, plaintiff's counsel relied upon the opinion of Judge Augelli in the United States District Court for the District of New Jersey filed on April 19, 1963 in the case of New Jersey Wood Finishing Company v. Minnesota Mining and Manufacturing Company, et al., 216 F. Supp. 507. The defendant argues that the language of Section 16(b) of Title 15 U.S.C. is to the effect that the running of the statute of limitations is suspended "Whenever any civil or criminal proceeding is instituted by the United States to prevent, *713 restrain, or punish violations of any of the antitrust laws * * *" and that the suspension does not occur when the proceedings are instituted by the Federal Trade Commission, as distinguished from a suit by the Justice Department.
Judge Augelli clearly assimulates a proceeding by the Federal Trade Commission to one "instituted by the United States." In the judgment of this Court, Judge Augelli's opinion is doubtful authority for this view, because of its reliance upon the case of Brunswick-Balke-Collender Co. v. American Bowling and Billiard Corp., 150 F.2d 69 (C.A. 2). When that case is examined it appears that the Court first considered the order of the Federal Trade Commission as a "final judgment or decree rendered in any criminal prosecution" or in any suit or proceeding in equity brought by or on behalf of the United States under the antitrust laws, but that on a petition for rehearing it decided that an order of the Federal Trade Commission was correctly excluded from evidence by the District Judge.
We recognize that Section 16 was amended in 1955 and since the Brunswick-Balke-Collender decision, but there is nothing in the amended language which clearly broadens the Act to include proceedings by the Commission. The language has been streamlined, but an examination of Public Law 137, July 7, 1955 (69 Stat. 282-283) clearly shows that it was only an amendment to Sect. 5 of the Clayton Act and that it made no reference to the Federal Trade Commission Act. The Brunswick case was reversed on the one point, because of the Court's revised conclusion that Sect. 16 applied only to the Clayton Act. There is nothing in the Amendment of 1955 which would point to a different conclusion. See also Proper v. John Bene & Sons, Inc., 295 F. 729 (D.C.N.Y.); International Tag & Salesbook Co. v. American Salesbook Co., Inc., 6 F.R.D. 45 (D. C.N.Y.).
There is a further reason for excluding the supplemental complaint which we deem conclusive. As was pointed out in F. T. C. v. Baltimore Paint & Color Works, 41 F.2d 474, 476 (C.A. 4), "The order of the Commission is not enforceable until affirmed by this court, and it would be a useless thing for the Commission to try the question of whether its order is being violated before affirmation of the order by this court." No authority on the point has been found, but, if plaintiff were allowed to amend and proceed to trial before the Federal Trade Commission investigations were concluded either by a stipulation or an enforcement order by the Court of Appeals, it would obtain the benefit of the suspension of the statute of limitations before any determination that it was entitled to it. Apart from the grave question whether Sect. 16 applies to a Federal Trade Commission proceeding, if plaintiff's views are correct (regardless whether the suspension resulted from a proceeding by the Commission or Justice Department), it would be allowed to introduce evidence of damage during the hiatus period before the Government proceeding reached a conclusion. This would be a manifest injustice to defendant. The Court believes it would be entitled to the suspension only if the Government proceeding resulted in a decree or judgment which could be used in its own case. This could only be determined by the Court after the judgment was rendered.
The second main question is: Should plaintiff's separate action be tried at the same time as the retrial of the first? This is a matter lying within the sound discretion of the Court. Under Rule 20(b) the court "may order separate trials or make other orders to prevent * * * prejudice." The dangers of prejudice to defendant are set forth in Mitchell v. RKO Rhode Island Corporation, supra. These dangers are substantial.
In addition the plaintiff has had the benefit of an injunction since January, 1961. If it has not sought its enforcement against practices of the defendant, it might be inferred that there was no *714 need for enforcement during the period of time in question.
The motion to reconsider must be denied.
Plaintiff's second action will be set for trial on the merits immediately following a reasonable time for discovery. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260753/ | 77 Md. App. 237 (1988)
549 A.2d 1171
MELVIN EDWARD GARDNER, JR., ET AL.
v.
STATE OF MARYLAND, ET AL.
No. 283, September Term, 1988.
Court of Special Appeals of Maryland.
November 14, 1988.
Robert W. Guth (Phillips P. O'Shaughnessy, Sandbower, Gabler & O'Shaughnessy, P.A., Baltimore, and Joseph A. Miklasz, Glen Burnie, on the brief), for appellants.
Elena Langrill, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., and Evelyn O. Cannon, Asst. Atty. Gen., on the brief), Airport, for appellee, State of Md.
Benjamin R. Goertemiller, Susan M. Marzetta, and Semmes, Bowen & Semmes, on the brief, Baltimore, for appellee, Constitution State Ins. Co.
Francis J. Ford and Ford & O'Neill, on the brief, Rockville, for appellee, Planet Ins. Co.
Argued before MOYLAN, WILNER and KARWACKI, JJ.
WILNER, Judge.
This case involves a construction of the State Tort Claims Act, now codified in Md.State Gov't Code Ann., §§ 12-101 12-109.
Until 1981, the State jealously guarded its sovereign immunity against liability for tort. The Court of Appeals had repeatedly held that the State could not be sued for the tortious conduct of its agencies, instrumentalities, officials, or employees unless the Legislature (1) authorized such a suit and (2) provided the funds or enabled the agency sued to obtain the funds necessary to satisfy any resulting judgment. See, for example, University of Maryland v. Maas, 173 Md. 554, 197 A. 123 (1938). Except in some very limited circumstances, the General Assembly declined to do either of those things. Board v. John K. Ruff, Inc., 278 Md. 580, 366 A.2d 360 (1976); Austin v. City of Baltimore, 286 Md. 51, 405 A.2d 255 (1979).
After several years of study and a few unsuccessful attempts,[1] however, the Legislature enacted 1981 Md. Laws, ch. 298 the Maryland Tort Claims Act in which it provided a more general waiver of sovereign immunity against tort liability. Though more comprehensive than anything that had preceded it, this waiver, too, was a limited one; it applied only to certain categories of tort actions, it did not cover certain kinds and levels of damages, and it was subject to certain conditions. See Kee v. State Highway Admin., 313 Md. 445, 545 A.2d 1312 (1988).
Over the years indeed in nearly every session of the General Assembly since 1981 the Tort Claims Act has been amended in one fashion or another. One of the provisions that has remained substantively intact, however though it too has been the subject of some tinkering and refinement is the requirement that, before any tort action against the State could be instituted in court, the plaintiff must have submitted his or her claim to the State Treasurer and had that claim denied by the Treasurer. This appeal focuses principally upon that provision.
To put the issues now before us in a proper perspective, however, we need to consider all or parts of three sections of the Act §§ 12-104, 12-106, and 12-107. In particular:
(1) Section 12-104(a) provides:
"Subject to the exclusions and limitations in this subtitle, the immunity of the State and of its units is waived as to a tort action, in a court of the State, to the extent of insurance coverage under Title 9 of the State Finance and Procurement Article."
(2) Section 12-106(b) provides:
"A claimant may not institute an action under this subtitle unless:
(1) the claimant submits a written claim to the Treasurer or a designee of the Treasurer within 180 days after the injury to person or property that is the basis of the claim;
(2) the Treasurer or designee denies the claim finally; and
(3) the action is filed within 1 year after the claim is denied finally or 3 years after the cause of action arises, whichever is later."
(3) Section 12-107(d) provides:
"A claim under this subtitle is denied finally:
(1) if, by certified mail, return receipt requested, under a postmark of the United States Postal Service, the Treasurer or designee sends the claimant, or the legal representative or counsel for the claimant written notice of denial; or
(2) if the Treasurer or designee fails to give notice of a final decision within 6 months after the filing of the claim."
On June 30, 1986, ten families living in close proximity to Baltimore-Washington International Airport filed suit against the State of Maryland seeking money damages for injuries caused to them by low-flying aircraft using the airport, the operation of the airport in general, and noise and "repellant odors" from two public highways in their neighborhood.
In the "Common Operative Facts" part of their complaint, the plaintiffs alleged, among other things, that (1) air traffic using the airport had increased dramatically since the airport was first built in the 1940's, (2) planes flew directly over the plaintiffs' homes "round the clock" at altitudes of under 300 feet, (3) those flights, the routing for which the State bears responsibility, represented a "deliberate (and/or negligent) choice to interfere with plaintiffs['] ... enjoyment of their real property," (4) in addition, the noise and repellant odors from the use of Routes 3 and 100, which surround the neighborhood, in combination with the activities at the airport, "have wrecked [sic] particular havoc upon plaintiffs," (5) the interference "could have been reduced or eliminated by the defendant's taking of reasonable steps, such as condemnation proceedings, which steps the defendant did not do and continue[s] to refuse to do," and (6) the noise, vibration, glare of aircraft lights, and repellant odors "have made it impossible for plaintiffs to live a normal life and to use and enjoy their properties."
Upon these factual allegations, the plaintiffs attempted to plead three causes of action. They charged the State with maintaining a nuisance (Count I), negligence in the use and maintenance of the State-owned airport (Count II), and creation and maintenance of a "patently dangerous public improvement" (Count III). Money damages aggregating $38 million ($1 million for each family member joined as a plaintiff) were sought.
There is some dispute as to whether the plaintiffs had submitted a claim with the State Treasurer pursuant to § 12-106(b) prior to filing their action in court. The Treasurer's office, through an affidavit of the Insurance Manager, maintained that a claim was not "filed" until July 16, 1986, and that, as of September 5, 1986 (the date of the affidavit), it was still under review by the Treasurer. A secretary for plaintiffs' counsel filed a counter-affidavit, however, stating that she mailed the claim to the Treasurer's office on June 24, 1986, and that she "firmly believe[d]" that the Treasurer received it on June 25. In the context in which the case reaches us, this dispute is not important; the trial court, considering the matter for purposes of a motion to dismiss the complaint, gave the plaintiffs the benefit of the doubt, and so shall we.[2] Whenever the claim was received by or "submitted to" the Treasurer, it is undisputed that the Treasurer had not acted upon, and certainly had not "finally denied," the claim prior to the filing of the complaint. There was no assertion in the complaint that a claim had even been submitted, much less finally denied.
The State moved to dismiss the complaint, in part based on improper venue and in part for failure to comply with § 12-106(b). The plaintiffs responded to this second defense by contending that they were not obliged to comply with § 12-106(b). Count I, they asserted, is based on the guarantee in the Md. Declaration of Rights "against the unconstitutional taking of their property" and that sovereign immunity is no bar to such a claim. Moreover, because "the State denied [a] petition to the State Treasurer" in another case, plaintiffs claimed that "there is no logical reason to expect a favorable action by the State Treasurer" on their claim.
The court agreed with the State that venue in Baltimore City was inappropriate and therefore transferred the case to Anne Arundel County. See Md.Rule 2-327(b). The more significant defense of failure to comply with § 12-106 was left to the receiving court to resolve.[3]
On March 11, 1987, before any further action was taken on the State's motion, the plaintiffs filed an "Amended Complaint By Interlineation," in which they added to their complaint this additional averment:
"This action arises under the Maryland Declaration of Rights, the Maryland Tort Claims Act, Sections 12-101 to 12-109 of the State Government Article of the Maryland Code, and under the common law. Plaintiffs have heretofore complied with all procedural requirements of the Maryland Tort Claims Act, in that no later than July 16, 1986, the State Treasurer received plaintiffs' statement of claim and that more than 7 1/2 months later the State Treasurer has not responded to it, so that, by operation of law, he is deemed to have denied same."
The State moved to strike the amended complaint "in the interest of justice." The fear seemed to be that, if the amended complaint were allowed, it would "relate back to the original Complaint." In that event, the action would be deemed filed June 30, 1986 one day before the law imposing a "cap" of $350,000 on non-economic damages (1986 Md. Laws, ch. 639) took effect. The State seemed to have no objection to the plaintiffs' filing a new complaint, now that the prerequisite of the Tort Claims Act had been satisfied, but argued that it was impermissible and unfair to allow the plaintiffs to proceed by way of amending the initial complaint.
The court granted the State's motion and dismissed the amended complaint. It rejected the argument that Count I was not a tort claim subject to the Tort Claims Act, noting that (1) Count I alleged a nuisance, not an inverse condemnation, (2) the plaintiffs had filed a separate action in Federal court clearly premised on an unconstitutional taking of their property and thus knew how to allege such a cause of action, and (3) the claim they filed with the Treasurer "indicates that they intended the instant action as a tort action rather than a constitutionally-based action requiring no such claim filing."[4] The court concluded that the statutory prerequisite final denial of a claim by the Treasurer had not been satisfied when the initial complaint was filed and that that failure could not be overcome by an amended complaint. In that regard, the court held:
"Plaintiffs sought to remedy their error by filing an Amended Complaint by Interlineation in which they maintain that subsequent compliance with the procedural requirements of the Tort Claims Act is sufficient to restore their premature claim. The argument that their Amended Complaint should relate back to the date of the original filing would render the requirements for institution of a claim under the Tort Claims Act meaningless, in that subsequent compliance could always be utilized to a defective claim. The General Assembly specifically limited any waiver of sovereign immunity to situations when prescribed procedures have been satisfied, namely, the final denial of a claim submitted with the Treasurer."
(Footnote omitted.)
In sharp contrast to the initial argument they made below that they were not obliged to comply with § 12-106(b) appellants now acknowledge that compliance with that section is a prerequisite to the institution of an action in court. Indeed, they insist that compliance was a jurisdictional prerequisite that the court had no authority to entertain their complaint or act on it in any affirmative way unless and until the Treasurer finally denied their claim. Their argument now, which is patently inconsistent with the theory upon which it rests, is that "[t]he Circuit Court, had nothing else happened, should have retained jurisdiction over the original Complaint during the pendency of the State Treasurer's review. Once that office's denial by silence occurred, the Circuit Court should have allowed the amendment to the Complaint as jurisdiction now plainly existed."
The new argument proceeds thusly: (1) § 12-106(b) represents, in essence, an administrative remedy that must be complied with before a party can resort to court; (2) although, normally, failure to exhaust an available administrative remedy is grounds for dismissal of the premature action, here appellants had partly complied by filing a claim with the Treasurer; (3) under that circumstance, the court though, as they say, was without jurisdiction should have simply "sat on" the complaint until the Treasurer either acted on the claim or effectively denied it through inaction; and (4) at that point, appellants were entitled to amend the defective complaint to allege satisfaction of the jurisdictional prerequisite and have it treated as though the action was properly instituted when the original complaint was filed. The whole point of this argument, of course, is to give appellants the benefit of the "relation back" doctrine and thus escape any suggestion that the limitations on recovery embodied in 1986 Md. Laws, ch. 639 (Md.Cts. & Jud.Proc.Code Ann., §§ 11-108 and 11-109) would apply to their case.
We shall hand appellants a technical victory, although, under our view of the matter, it will avail them naught in terms of what is of real importance to them. We believe that the trial court should have allowed appellants to amend their complaint (or, as they sought to do in this case, to file an amended complaint) to allege compliance with § 12-106(b), but, in light of the legislative intent behind the requirement of that section, we do not believe that appellants would be entitled to any "relation back" as a result of the amendment. Their action should be treated as though it were filed on the date they filed their amended complaint. How that will or might affect the application of ch. 639 is not a matter we need consider in this appeal.
It is evident from the statute itself and, to a certain extent, from its legislative history, that the Maryland Tort Claims Act was patterned upon the Federal counterpart, 28 U.S.C. §§ 2671 2680. Both statutes provide for a conditional waiver of the government's common law sovereign immunity against tort liability, the principal condition being that the plaintiff's claim be first presented, or submitted, to a designated administrative official or agency for consideration, and that no court action against the government be allowed until the claim has been denied by that official or agency. The analogous Federal provision is set forth in 28 U.S.C. § 2675(a), as follows:
"An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim."
Because the provisions are so similar and because the common intent behind them is so clear, we may and should be guided by the case law interpretation of the Federal statute when we examine the State analog, § 12-106(b). See Faulk v. State's Attorney for Harford Co., 299 Md. 493, 506, 474 A.2d 880 (1984): "Where the purpose and language of a federal statute are substantially the same as that of a later state statute, interpretations of the federal statute are ordinarily persuasive."
The Federal experience may be summarized as follows:
(1) The requirement of 28 U.S.C. § 2675(a) is generally regarded as a jurisdictional prerequisite to filing an action in court. If a plaintiff fails to comply with the requirement, the action must be dismissed; there is no discretion to waive compliance or excuse non-compliance. See Henderson v. United States, 785 F.2d 121 (4th Cir.1986); U.S. v. Burzynski Cancer Research Institute, 819 F.2d 1301 (5th Cir.1987), cert. denied ___ U.S. ___, 108 S.Ct. 1026, 98 L.Ed.2d 990 (1988); Best Bearings Co. v. United States, 463 F.2d 1177 (7th Cir.1972); Melo v. United States, 505 F.2d 1026 (8th Cir.1974); Three-M Enterprises, Inc. v. United States, 548 F.2d 293 (10th Cir.1977); Lykins v. Pointer, Inc., 725 F.2d 645 (11th Cir.1984). Most State courts have interpreted their counterpart tort claims acts the same way. See, for example, Dassinger v. Oden, 124 Ariz. 551, 606 P.2d 41 (Ariz. App. 1979); Lloyd v. State Personnel Bd. of State of Colo., 710 P.2d 1177 (Colo. App. 1985), rev'd on other grounds 752 P.2d 559 (Colo. 1988); West v. Wainwright, 380 So.2d 1338 (Fla.App. 1980); Indiana State Highway Com'n v. Morris, 488 N.E.2d 713 (Ind. App. 1986); Fearon v. Commonwealth, 394 Mass. 50, 474 N.E.2d 162 (1985); Luciano v. Fanberg Realty Co., 102 A.D.2d 94, 475 N.Y.S.2d 854 (1984); Ibrahim v. Samore, 118 Wis.2d 720, 348 N.W.2d 554 (1984); but compare Naylor v. Minnesota Daily, 342 N.W.2d 632 (Minn. 1984).
(2) Where the plaintiff has made a claim with the appropriate agency but filed a court action before the claim was denied or the six-month period for agency consideration has run, and the court considers a government motion to dismiss the action before that six-month period has expired, the court will dismiss the action and not simply hold it in abeyance until expiration of the period. At least two theories have been used to justify that result. In Fuller v. Daniel, 438 F. Supp. 928, 930 (N.D.Ala. 1977), the Court held: "Since it appears that the Court lacks jurisdiction, the action must be dismissed immediately. The Court cannot hold the matter in abeyance pending prosecution of the administrative remedy, because where the Court does not have jurisdiction, it cannot retain jurisdiction." (Emphasis added.) See also U.S. v. Burzynski Cancer Research Center, supra, 819 F.2d 1301.
In Gregory v. Mitchell, 634 F.2d 199, 204 (5th Cir.1981), the Fifth Circuit Court of Appeals offered this alternative explanation:
"[T]o allow the district court to stay or hold in abeyance the damage claim against the FDIC until the six month period accrues would tend to increase the congestion in our already heavily burdened district courts. Instead of promoting congressional intent in enacting 28 U.S.C. § 2675 by `making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States,' . .. appellants' theory would spur unnecessary litigation and slow down the process."
(3) In those instances where the court action was prematurely filed but, before the court rules on the motion to dismiss, the jurisdictional prerequisite has become satisfied in that a proper claim has been made and denied (either affirmatively or by operation of law), the plaintiff is generally allowed to amend the complaint to recite satisfaction of the prerequisite, at least where the claim is denied "before any substantial progress has been made in the pending litigation." Kubrick v. United States, 581 F.2d 1092, 1098 (3d Cir.1978), rev'd on other grounds 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979); see also Celestine v. Veterans Admin. Hosp., 746 F.2d 1360 (8th Cir.1984); Campbell v. United States, 534 F. Supp. 762 (D.Haw. 1982). The rationale for that approach is that "[t]o hold that refiling was necessary would involve duplicitous pleadings and wasted effort." Kubrick, 581 F.2d at 1098.
(4) At least two caveats, relevant to the circumstances of this case, have been expressed to this view.
In none of the cases allowing the plaintiff to amend his complaint has there been any indication of a change in the law or other event prejudicial to the government occurring during the interval between the initial premature filing of the complaint and the satisfaction of the jurisdictional prerequisite. Thus, there has generally been no consideration given to the "relation back" doctrine; whether the action related back or did not relate back was irrelevant. In the absence of any special reason not to allow the amendment, the courts simply found no purpose in requiring the filing of a new action. In one case, however, even in the absence of any special intervening event, the court made clear that the amendment should be allowed "without relation back" to the date the initial, premature claim was filed. Morano v. U.S. Naval Hospital, 437 F.2d 1009, 1011 (3d Cir.1971).
The second caveat was expressed in Insurance Co. of North America v. United States, 561 F. Supp. 106 (E.D.Pa. 1983). The plaintiff there filed its action in court three days after presenting its claim to the agency, provoking the court to declare, at 118:
"At the time of trial, more than six months had elapsed from the date of filing the administrative complaint without any final decision. Although in some cases the jurisdictional defect has been considered cured where the six-month period has elapsed prior to any substantial progress in the litigation, ... the court does not believe this should be the case here where the filing of the lawsuit within three days of submitting the administrative claim can only be considered a deliberate flouting of the requirement that an agency have six months free of litigation to attempt to resolve the matter. Plaintiff's claim against the U.S. must be dismissed."
(Citations and footnote omitted; emphasis added.)
As we have indicated, appellants now concede that their initial complaint was premature and that the prematurity constitutes a jurisdictional defect. It is clear from the record, and indeed not disputed by appellants, that the premature filing was deliberate. The complaint was filed on June 30, 1986, in order to "slip it in" before the July 1, 1986 effective date of the 1986 Md. Laws, ch. 639. Under these circumstances, we reject as utterly improper the notions that (1) the court was obliged to hold the State's motion to dismiss in abeyance until the Treasurer denied the claim, by action or inaction, and (2) if allowed to amend their complaint once the claim was effectively denied, they should receive the benefit of a "relation back."
We think the approach of the Third Circuit Court of Appeals in Morano v. U.S. Naval Hospital, supra, 437 F.2d 1009, is the best one in this setting, i.e., to allow the amendment rather than requiring a refiling, but to treat the case then as if it were filed on the day the amended complaint was filed. That would fully satisfy the legislative purpose and yet avoid the unnecessary clerical and paperwork involved in dismissing one action and filing another. It is also consistent with the general principles governing both the amendment of pleadings and the doctrine of "relation back."
The Court of Appeals has long taken the view that amendments should be freely allowed in order to promote justice. See Md.Rule 2-341(c); Crowe v. Houseworth, 272 Md. 481, 485, 325 A.2d 592 (1974). But not every amendment, even though allowable, is given retrospective effect, especially when giving it such effect will cause prejudice to or affect the substantive rights of other parties. In determining whether to give an amendment retrospective effect for purposes of a statute of limitations, for example, the Court has held that "[t]he modern view seems to be that so long as the operative factual situation remains essentially the same, no new cause of action is stated by a declaration framed on a new theory or invoking different legal principles." Id. at 485-86, 325 A.2d 592.
Here, of course, the "operative factual situation" is not the same. Until December 26, 1986, at the latest, appellants were jurisdictionally without a cause of action. To apply the doctrine and give them their action nunc pro tunc would, as the trial court noted, "render the requirements for institution of a claim under the Tort Claims Act meaningless."
We shall vacate the judgment dismissing the amended complaint and remand the case for further proceedings. In reaching this result, we note the State's concern that, by allowing appellants to amend their complaint rather than forcing them to file anew, we are sending the "wrong message." We do not agree. Forcing needless paperwork on appellants, as well as on the court, is hardly an appropriate response to the premature filing. We suggest, for the future, that if plaintiffs file actions subject to the Tort Claims Act without having complied with the prerequisites of that Act, a better response would be a request for sanctions under Md.Rule 1-341, at least where the non-compliance was knowing and deliberate.
JUDGMENT VACATED; CASE REMANDED TO CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COST TO BE PAID ONE-HALF BY APPELLANTS, ONE-HALF BY APPELLEES.
NOTES
[1] See Report Of The Governor's Commission To Study Sovereign Immunity, Nov., 1976; Report Of The Governor's Commission To Study The Liability Of Public Employees, Oct., 1978.
[2] Section 12-106(b), as noted, requires the claimant to "submit" the claim to the Treasurer. The operative word, then, is "submit" more precisely, "submits" rather than "file." If the statute required that the claim be "filed," the Treasurer would seem to have the better of the argument, for "[a] paper is said to be `filed' when it is delivered to the proper officer and received by him to be kept on file." Levy v. Glens Falls Indemn. Co., 210 Md. 265, 273, 123 A.2d 348 (1956); see also Cherry v. Brothers, 306 Md. 84, 92, 507 A.2d 613 (1986), and American Cas. v. Dept. Licens. & Reg., 52 Md. App. 157, 162, 447 A.2d 484 (1982) (quoting Levy). Whether, in context, "submits" means the same as "files," and thus requires actual delivery, is an issue we need not decide in this case.
[3] The order of the Circuit Court for Baltimore City stated:
"Motion To Dismiss as to venue is GRANTED, and the matter is transferred to the Circuit Court for Anne Arundel County for purposes of trial.
The Motion To Dismiss or in the Alternative, For Summary Judgment raised on other grounds is continued for further action by the Circuit Court for Anne Arundel County."
At one point, the State argued that the effect of the first paragraph of the Order was an actual dismissal of the complaint. Wisely, it has not pursued that argument on appeal. The clear import and intent of the order was simply to transfer the case, as the Rule allows.
[4] Whether the trial court's holding or assumption that a "constitutionally-based action" is not subject to the Tort Claims Act is correct is not an issue in this appeal, and we therefore express no opinion on it. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260765/ | 124 Cal.Rptr.2d 1 (2002)
101 Cal.App.4th 142
Mary HERBERG et al., Plaintiffs and Appellants,
v.
CALIFORNIA INSTITUTE OF THE ARTS, Defendant and Respondent.
No. B148834.
Court of Appeal, Second District, Division Seven.
August 13, 2002.
Review Denied November 13, 2002.[*]
*2 Lisa S. Kantor, Northridge, for Plaintiffs and Appellants.
Musick, Peeler & Garrett, Stuart W. Rudnick, Richard S. Conn and Kirsten C. Love, Los Angeles, for Defendant and Respondent.
PERLUSS, J.
Mary Herberg, an administrative employee of defendant California Institute of the Arts (CalArts), was depicted in a vulgar and sexually-oriented drawing prepared by two CalArts students. The drawing was displayed as part of a yearend exhibition of student art in CalArts's main gallery for approximately 24 hours. Herberg, along with her daughter Bobette Heuer and her granddaughter Deborah Dutro (also CalArts employees), sued CalArts for sexual harassment under the Fair Employment and Housing Act, Government Code section 12940 et seq. (FEHA),[1] alleging the display of the drawing created a hostile working environment. The trial court granted summary judgment in favor of CalArts. We affirm the judgment of the trial court because the undisputed facts establish the alleged harassment was not sufficiently severe or pervasive to alter the conditions of the plaintiffs' employment and create a hostile work environment.
FACTUAL AND PROCEDURAL BACKGROUND
CalArts is a private, postsecondary educational institution offering degree programs in the fine and performing arts. In May 1999, Herberg was 82 years old and worked as a cashier in the accounting office at CalArts. Her daughter, Heuer, was the director of financial aid at CalArts. Heuer's daughter, Dutro, was the purchasing and production manager at CalArts's office of public affairs.
CalArts's policy on censorship is contained in its administrative manual: "A. CalArts does not censor any work on the basis of content; nor is any work at the Institute subject to prior censorship. [¶] B. If any person objects to any exhibit or presentation, that person should convey *3 the objection in writing to the student's dean. The person will receive a written answer to the objection within 48 hours of its receipt. If the person is dissatisfied with the decision, he/she may appeal it to the [Exhibit Review] Committee. The decision of the Committee is final."[2]
CalArts's staff handbook, student handbook and administrative manual all state that it is CalArts's "official policy" to maintain a workplace free of all forms of unlawful harassment. The policy is also contained in a separate booklet titled "Policy on Sexual Harassment." The booklet, the student handbook and the administrative manual also state, "The content of artistic and intellectual property is protected by the constitutional right to free speech. It is not the intention of the sexual harassment policy to intrude on that right."
CalArts requires its first year art students to take an introductory course known as Foundation Art Class. During the 1998-1999 academic year, the students in the Foundation Art Class were permitted to exhibit their own creative work as part of an end-of-the-year show at CalArts's main gallery. Pursuant to CalArts's policy, Foundation Art Class students were not required to obtain approval from anyone before exhibiting their work in the main gallery.
In the early morning hours of May 13, 1999, two students in the Foundation Art Class, Jeremy Ringermacher and Ariel Rosenberg, exhibited a piece they titled The Last Art Piece. The Last Art Piece is a pencil drawing, about 25 by 40 inches, depicting Herberg and other CalArts faculty, staff and students engaged in various sexual acts. Herberg appears in the center of the drawing, bare-breasted and facing the viewer. She is depicted sitting on top of a nude male faculty member, straddling his groin as though the two were engaged in sexual intercourse.
Soon after she arrived at work on May 13, 1999, Dutro was approached by her supervisor, Anita Bonnell. Bonnell was upset and told Dutro there was a display in the main gallery that depicted Dutro's grandmother and Dutro should go see it. As Dutro made her way to the main gallery to see the drawing, she met Lynn Rosenfeld, the secretary of CalArts's president Steve Lavine. Rosenfeld told Dutro "`the Institute was aware of it and that it was being taken care of.'" Dutro was quite upset when she saw the drawing. Dutro returned to her office and complained to her supervisor.
Heuer found out about The Last Art Piece at 11:00 that morning when she was called into the office of CalArts's provost, Beverly O'Neill. Myrna Saltzberg, director of human resources, was also present. O'Neill told Heuer that a student drawing had been displayed that depicted Heuer's mother in a "vulgar" way. O'Neill and Saltzberg suggested that Heuer take her mother out of town for the weekend so her mother would not see the drawing. Heuer was embarrassed and left the meeting in tears.
After her meeting with O'Neill and Saltzberg, Heuer went to the main gallery and saw the drawing for the first time. She was "horrified and embarrassed." Others present in the gallery also appeared to be outraged by the drawing, including a person who told Heuer, "`If it were my mother, I would tear that painting off the wall.'" Heuer returned to her office and called her husband in tears. He promised to consult an attorney about trying *4 to have The Last Art Piece removed from the gallery.[3]
After lunch, CalArts's vice-president of administration, Dean Houchin, came to Heuer's office, told her he felt "very badly" about what had happened and explained the proper procedure for objecting to the display of The Last Art Piece. In Houchin's presence, Heuer wrote down her objections to the drawing and a request that it be removed. Houchin promised to present the objection to the dean of the art school and to ask that the process be expedited. Heuer also personally protested the display of The Last Art Piece to CalArts's provost and human resources director.
At about 1:00 p.m., Heuer and Dutro called Herberg and asked her to come to Heuer's office, where they told her about The Last Art Piece[4] Herberg did not see the drawing; nevertheless, she was so upset by the information about the drawing that she left work immediately. Herberg suffered an asthma attack later that afternoon and subsequently developed problems with eating and sleeping. She never returned to her job at CalArts.
Later in the afternoon of May 13, 1999, Heuer returned to the main gallery and saw 10-to-15 students and faculty members viewing The Last Art Piece. Heuer was again upset to the point of weeping. By this time, The Last Art Piece had provoked a substantial controversy among CalArts's faculty, students and staff. Two members of the staff wrote to the dean of the art school asking that the drawing be removed. Throughout the day, the student artists participated in formal and informal critique sessions about The Last Art Piece and its effect on Herberg and the rest of the CalArts community.
A reception held in the main gallery that evening was attended by about 100 people. Heuer, her husband and Dutro returned to the main gallery in the late evening to see if The Last Art Piece had been removed. It had not.
About 4:00 a.m. on May 14, 1999, Rosenberg voluntarily removed the drawing from the main gallery because he and cocreator Ringermacher "felt that our point had been made and the sketch had served its purpose."[5] Rosenberg wrote a letter of apology to Herberg several days later. Despite the fact that the drawing had been removed, the Committee met on May 17, 1999 to address Heuer's complaint. The Committee held an open forum to address the situation on May 21, 1999, with CalArts's president Lavine presiding. The Committee subsequently reconvened and determined that CalArts had acted in accordance with its policy regarding censorship and in furtherance of its educational goals. The Last Art Piece has not been displayed since, and a student who tried to display it at the May 21 forum was prevented from doing so.
Herberg, Heuer and Dutro, as well as Sharon Yeates, another staff member depicted in The Last Art Piece, filed suit against CalArts on January 24, 2000.[6]*5 Their complaint alleged "Invasion of Privacy-Misappropriation of Image or Likeness" and employment discrimination under FEHA.
On December 19, 2000 the trial court granted CalArts's motion for summary judgment. Judgment was entered in favor of CalArts on January 10, 2001. This appeal followed.[7]
DISCUSSION
Standard of Review.
The standard of review on appeal after an order granting summary judgment is well settled. "A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc, § 437c, subd. (c).) We review the trial court's decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612, 76 Cal.Rptr.2d 479, 957 P.2d 1313.) In the trial court, once a moving defendant has `shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,' the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff `may not rely upon the mere allegations or denials of its pleadings ... but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action....' (Code Civ. Proc, § 437c, subd. (o)(2); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855, 107 Cal.Rptr.2d 841, 24 P.3d 493.)" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-77, 110 Cal.Rptr.2d 370, 28 P.3d 116.)
In reviewing the evidence, we strictly construe the moving party's evidence and liberally construe the opposing party's and accept as undisputed only those portions of the moving party's evidence that are uncontradicted. "Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial. 'Any doubts about the propriety of summary judgment ... are generally resolved against granting the motion, because that allows the future development of the case and avoids errors.' [Citation.]" (Binder v. Aetna Life Ins. Co. (1999) 75 Cal. App.4th 832, 839, 89 Cal.Rptr.2d 540; see also Katz v. Chevron Corp. (1994) 22 Cal. App.4th 1352, 1365, 27 Cal.Rptr.2d 681 ["doubts as to the propriety of granting the motion should be resolved in favor of the opposing party"].)
The Trial Court Correctly Granted Summary Judgment on Plaintiffs' Sexual Harassment Claim Under FEHA Because the 24 Hour Display of The Last Art Piece Did Not Constitute "Severe or Pervasive" Harassment.
Section 12940, subdivision (j)(1), makes it unlawful for "an employer ... or any other person, because of ... sex ... to harass an employee." Section 12940, subdivision (k), provides an employer must "take all reasonable steps necessary to prevent discrimination and harassment from occurring." Herberg, Heuer and Dutro contend CalArts violated those provisions by permitting two of its students to display The Last Art Piece in the main gallery for approximately 24 hours.
Both FEHA and the parallel provisions of title VII of the federal Civil Rights Act *6 of 1964 recognize two theories of liability for sexual harassment claims. (Kohler v. Inter-Tel Technologies (9th Cir.2001) 244 F.3d 1167, 1172; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 606, 262 Cal.Rptr. 842 (Fisher) [in analyzing sexual harassment claims under FEHA, California courts look to federal decisions regarding sexual harassment claims under title VII of the federal Civil Rights Act of 1964].) "The first is quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances. The second is hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment." (Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414, 26 Cal.Rptr.2d 116; see also Kohler v. Inter-Tel Technologies, supra, 244 F.3d at p. 1172.) This case deals solely with "hostile work environment" sexual harassment. Plaintiffs contend the display of The Last Art Piece constituted such severe and pervasive harassment because of sex that it substantially altered the conditions of their employment and created an abusive work environment. (See Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 ["For sexual harassment to be actionable, it must be sufficiently severe or pervasive `to alter the conditions of [the victim's] employment and create an abusive working environment'"].)
"Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances. [Citation.] The plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended. [Citation.]" (Fisher, supra, 214 Cal.App.3d at pp. 609-610, 262 Cal.Rptr. 842, fn. omitted.)
Factors to be considered in evaluating the totality of the circumstances include (1) the nature of the unwelcome sexual acts or words (with physical touching generally considered more offensive than mere words); (2) the frequency of the offensive acts or encounters; (3) the total number of days over which all the offensive conduct occurred; and (4) the context in which the sexually harassing conduct occurred. (Fisher, supra, 214 Cal.App.3d at pp. 609-610, 262 Cal.Rptr. 842; Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 465, 79 Cal.Rptr.2d 33.) Applying these factors to the undisputed facts in the present case, the display of The Last Art Piece in the main gallery for 24 hours did not constitute severe or pervasive harassment because of sex as a matter of law.
Liability for Sexual Harassment May Not Be Imposed Based on a Single Incident That Does Not Involve Egregious Conduct Akin to a Physical Assault or the Threat of Physical Assault.
Plaintiffs' hostile work environment claim rests on a single incident: the display of The Last Art Piece in the main gallery for a period of about 24 hours. The trial court properly found that this incident, although doubtless upsetting to the plaintiffs, did not create a workplace that was "so discriminatory and abusive that it unreasonably interfere[d] with the job performance of those harassed." (Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 923.)
In Brooks v. City of San Mateo, supra, 229 F.3d 917, the Ninth Circuit Court of Appeals affirmed a summary judgment in favor of the defendant where the alleged harassment consisted of the plaintiffs supervisor forcing his hand under her sweater and bra to fondle her bare breast. (Id. at p. 921.) As in this case, the plaintiff "required psychological help and even then *7 was unable to successfully return to her job." (Id. at p. 924.) The Ninth Circuit held, "If a single incident can ever suffice to support a hostile work environment claim, the incident must be extremely severe. ... In Al-Dabbagh [v. Greenpeace, Inc. (N.D.Ill.1994) 873 F.Supp. 1105], a single incident was held to be sufficient where the assailant `slapped [plaintiff], tore off her shirt, beat her, hit her on the head with a radio, choked her with a phone cord and ultimately forced her to have sex with him.' [Citation.] The perpetrator held the victim captive overnight; when she finally managed to escape, she had to be hospitalized for her injuries. [Citation.]" (Id. at p. 926.) The Court concluded, "The brief encounter between [plaintiff] and [the harasser] was highly offensive, but nothing like the ordeal suffered by the unfortunate young woman in Al-Dabbagh, who was held captive from evening until early the next morning. Utilizing the ... factors of frequency, severity and intensity of interference with working conditions, we cannot say that a reasonable woman in Brooks's position would consider the terms and conditions of her employment altered by [the harasser's] actions." (Ibid.)
Although plaintiffs argue that "even a single incident of severe harassment may be sufficient" to establish liability by an employer for sexual harassment, a review of the cases they cite reveals that such a single incident must be severe in the extreme and generally must include either physical violence or the threat thereof. (See Ellison v. Brady (9th Cir. 1991) 924 F.2d 872, 877-878 [dictum: a single incident of forcible rape might be sufficiently severe to create a hostile working environment]; Department of Corrections v. State Personnel Bd. (1997) 59 Cal. App.4th 131, 134, 156, 69 Cal.Rptr.2d 34 [hostile work environment liability may exist for a single incident of rape, but no such liability attached for single incident in which corrections officer used profane language and shook a female Hispanic fellow officer by her collar to emphasize his point]; Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1042, 58 Cal.Rptr.2d 122 [plaintiff permitted to proceed on hostile work environment harassment claim based on allegations he was drugged and gangraped]; Little v. Windermere Relocation, Inc. (9th Cir.2001) 265 F.3d 903 [summary judgment in favor of defendant reversed where the plaintiffs hostile work environment claim was based on a rape]; Vance v. Southern Pacific Tel. and Tel. Co. (11th Cir.1989) 863 F.2d 1503, 1510, abrogated on other grounds by Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 20, 114 S.Ct. 367, 126 L.Ed.2d 295 [actionable race-based harassment included two incidents where a noose was hung over African American employee's work station]; King v. Board of Regents of Univ. of Wis. System (7th Cir.1990) 898 F.2d 533, 537 ["although a single act can be enough [citation] generally, repeated incidents create a stronger claim of hostile environment, with the strength of the claim depending on the number of incidents and the intensity of each incident"];[8]Radtke v. Everett (1993) 442 Mich. 368, 395 [501 N.W.2d 155, 168] [under Michigan law, "[although rare, single incidents may create a hostile environmentrape and violent sexual assault are two possible scenarios"].)
In support of their position, plaintiffs heavily rely on a Fifth Circuit Court of Appeals case, Bennett v. Corroon & Black Corp. (5th Cir.1988) 845 F.2d 104 (Bennett), in which the alleged harassment consisted of the posting of obscene cartoons *8 bearing the plaintiffs name in the men's room at her workplace. Plaintiffs cite the court's statement that "[a]ny reasonable person would have to regard these cartoons as highly offensive to a woman who seeks to deal with her fellow employees and clients with professional dignity and without the barrier of sexual differentiation and abuse. This is a perfect matrix to grow the hostile environment subjecting a woman to the discriminatory intimidation, ridicule, and insult which Title VII protects against." (Id. at p. 106.) However, the Court of Appeals' observation quoted by plaintiffs was not directed to the question whether the harassment was "severe or pervasive," but toward the entirely separate question whether the harassment was "based on the sex of the plaintiff."[9] (Ibid.)
In fact, the Fifth Circuit in Bennett affirmed summary judgment in favor of the defendants on other grounds, noting that "this summary judgment record presents meager proof of the conditions required" to establish severe or pervasive harassment. The court specifically declined to rule whether posting the cartoons was "sufficiently severe or pervasive `to alter the conditions of [the victim's] employment and create an abusive environment' [citation]." (Bennett, supra, 845 F.2d at p. 106.)[10] Thus, Bennett does not aid plaintiffs in establishing the conditions of their employment were substantially altered by the brief display of The Last Art Piece.
Indeed, other courts have found that even unwelcome sexual touching is insufficient to constitute severe pervasive harassment when the incidents are isolated and there is no violence or threat of violence. (E.g., Candelore v. Clark County Sanitation Dist. (9th Cir.1992) 975 F.2d 588, 590 (per curiam) [affirming summary judgment for defendant where "isolated incidents of *9 sexual horseplay alleged by Candelore took place over a period of years and were not so egregious as to render Candelore's work environment `hostile'"]; Del Valle Fontanez v. Aponte (D.P.R.1987) 660 F.Supp. 145, 146-147, 149 [incident where defendant "pressed [plaintiff] against the door with his body" and plaintiff "felt defendant's erect sexual organ against her body" twice in a five minute period was not severe or pervasive enough to create a hostile working environment]; Saxton v. American Tel. & Tel. Co. (7th Cir.1993) 10 F.3d 526, 528, 534 [affirming summary judgment in favor of defendant where plaintiff was rubbed and kissed on one occasion and resisted an attempted groping on another].)
The nature of the alleged harassment in this case does not begin to approach the severity of rape or violent sexual assault or even milder forms of unwanted physical contact. None of the plaintiffs was physically touched or subjected to any sort of verbal abuse. Heuer and Dutro were not depicted in The Last Art Piece, and Herberg did not see the drawing until long after it had been taken down. Although Herberg and her relatives were understandably embarrassed and upset about the drawing, it is undisputed that the drawing was not intended to harass plaintiffs, but rather to make a point about representational art.[11] Moreover, CalArts's administrative personnel were uniformly mindful of plaintiffs' feelings, and made efforts to ameliorate the impact of the drawing during the time it was on display. Quite simply, no reasonable jury could conclude that the presence of The Last Art Piece in the main gallery for 24 hours constituted severe harassment within the meaning of FEHA.[12]
DISPOSITION
The judgment of the trial court is affirmed. CalArts is to recover its costs on appeal.
We concur: JOHNSON, Acting P.J., and WOODS, J.
NOTES
[*] Kennard, Jr., dissented.
[1] Unless otherwise indicated, all further statutory references are to the Government Code.
[2] The administrative manual provides that the Exhibit Review Committee is responsible for "[t]he allocation of space or the adjudication of any difference of opinion concerning an exhibit or presentation."
[3] Some time before the close of business, an attorney faxed a letter to Lavine on behalf of Herberg, Heuer and Dutro, asserting the display of The Last Art Piece had caused them to suffer "personal injury . . . caused by sexual harassment and of the maintenance of a hostile workplace," and demanding that the drawing be removed immediately.
[4] Earlier that day, a faculty member in the film school informed Dutro that Herberg needed to be informed about the drawing and that he would do so if Dutro did not.
[5] The drawing was the students' response to an art theory that characterized representational art as passe and incapable of evoking a strong response. See footnote 11, below.
[6] Yeates is not a party to this appeal.
[7] On appeal, plaintiffs have abandoned their claim of misappropriation of likeness. Therefore, we address only the sexual harassment claim.
[8] In King v. Board of Regents of Univ. of Wis. System, supra, 898 F.2d 533, the acts complained of were "repeated, unwelcome advances, fondling and a physical attack." (Id. at p. 540.)
[9] "Sexual harassment may involve conduct, whether blatant or subtle, that discriminates against a person solely because of that person's sex." (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 345, 21 Cal.Rptr.2d 292, italics added.) In other words, sexual harassment creating a hostile work environment is unlawful because it subjects its victims to "discriminatory intimidation, ridicule, and insult...." (Bennett, supra, 845 F.2d at p. 106, italics added.) Because the record before us seemed to lack evidence of any discriminatory harassment, we asked the parties for additional briefing as to whether plaintiffs were subjected to hostile work environment harassment "because of ... sex," as required by FEHA. (§ 12940, subd. (j)(1).)
After reviewing the parties' supplemental briefs, we agree with plaintiffs that they did not have an adequate opportunity to demonstrate triable issues of fact as to whether the alleged harassment was "because of ... sex." Accordingly, although we have serious doubts whether such triable issues exist in this case, we leave the issue for another case and another day. (See Folberg v. Clara G.R. Kinney Co. (1980) 104 Cal.App.3d 136, 140, 163 Cal.Rptr. 426 ["if a point is not argued below by the moving party and the record does not establish that the apposing party could not have shown a triable fact issue had the point been raised, the appellant court cannot determine whether the trial court's decision was `right' upon that point"]; Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 70-71, 15 Cal.Rptr.2d 598 [it is unjust to deprive a party of the chance to demonstrate the existence of a triable issue on an issue not asserted by moving party as grounds for summary judgment].)
[10] In Brennan v. Metropolitan Opera Ass'n, Inc. (2d Cir.1999) 192 F.3d 310, another case involving objectionable pictures posted in the workplace, the Second Circuit Court of Appeals also affirmed a summary judgment in favor of defendants. The Court declined to decide whether posting sexually provocative photos constituted harassment "based on [plaintiff's] sex," but held that "a jury could not reasonably find the existence of a severe, pervasive atmosphere of sex-based hostility at the Met. These pictures and the one instance of sexual banter alleged by the plaintiff, while they were arguably inappropriate in a work setting, do not rise to the level of actionable conduct." (Id. at p. 319.)
[11] In their declarations submitted in support of CalArts's motion for summary judgment, student artists Ariel Rosenberg and Jeremy Ringermacher explained the motivation for The Last Art Piece: "At CalArts, there is a tendency when art is critiqued to categorize a work as representational or conceptual. Representational artwork is an actual representation of the item depicted. Conceptual artwork goes beyond the actual item depicted and communicates additional ideas and concepts. During the time that I have attended CalArts, faculty and students have debated the impact of representational art versus conceptual art, and some people have characterized representational art as passe and incapable of provoking a strong response. Ringermacher and I decided to create a piece of art that mixed and confused these two concepts and evoked a critical response." In his letter of apology to Herberg, Rosenberg stated "I never intended to harm anyone."
[12] The context in which the alleged harassment took place also supports our decision. (See Fisher, supra, 214 Cal.App.3d at pp. 609-610, 262 Cal.Rptr. 842.) We see a vast difference between posting obscene cartoons in a men's room, as was done in Bennett, supra, 845 F.2d 104, and the display of The Last Art Piece in the designated gallery area at an art school. CalArts's non-censorship policy was widely distributed to both students and employees. In our view it was reasonable to expect that exhibitions of student artwork would, from time to time, include sexually-explicit material. Although we reject CalArts's contention that its anti-censorship policy and the First Amendment exempt it from the laws against sexual harassment, in this case the context of the display further militates against a finding of severe or pervasive harassment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260906/ | 131 Cal.Rptr.2d 358 (2003)
106 Cal.App.4th 943
The PEOPLE, Plaintiff and Respondent,
v.
Richard FERNANDEZ, Defendant and Appellant.
No. B152965.
Court of Appeal, Second District, Division Six.
March 4, 2003.
Esther R. Sorkin, under appointment by the Court of Appeal, Ventura, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Supervising Deputy Attorney General, April S. Rylaarsdam, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Penal Code section 136.1, subdivision (b)(1)[1] penalizes an attempt to prevent or dissuade a victim from "[m]aking any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to *359 any judge." The question presented in this appeal is whether an attempt to dissuade a witness from making a "report . . . to any judge" includes an attempt to influence a victim's testimony at a preliminary hearing. We conclude that it does not.
BACKGROUND
Appellant Richard Fernandez had been friends with John Mason for many years. Mason rented a room in appellant's mother's house, where appellant also lived on occasion. In 1999, Mason was injured on the job and began receiving disability benefits through worker's compensation.
Mason did not receive a disability check that was issued on April 27, 2000. He called his employer's insurance company and reported that the check was missing. Mason later learned that appellant had taken the check, forged Mason's signature, and cashed it at a local check cashing business. The owner of that business knew both appellant and Mason, and had allowed appellant to cash Mason's check after receiving telephone authorization from a person who identified himself as Mason.
Appellant acknowledged cashing the check and offered to pay back the money. Mason had already received a replacement check and told appellant to contact the insurance company. Appellant did so, but never made restitution. Ultimately, the district attorney's office filed a criminal complaint charging appellant with forgery and grand theft.
On December 5, 2000, the district attorney served a subpoena on Mason to testify at the preliminary hearing scheduled for the following day. Mason was not home when the subpoena was delivered to the house, but appellant was present and later gave it to Mason. Appellant seemed very nervous and told Mason that he would also attend the hearing. He told Mason that he did not want to go into custody, because he might never see his ailing mother again. Appellant began to cry and said that Mason could help him if he testified a certain way at the preliminary hearing. He suggested that Mason use his medication as an excuse and claim that he had forgotten giving appellant permission to cash the disability check. The conversation went on for hours and Mason eventually told appellant that he would say he could not remember anything.
The next day, appellant drove Mason to the preliminary hearing and begged him not to tell the truth. Mason spoke to the prosecutor before he took the stand and said he had memory problems due to his medication. The prosecutor advised Mason to consult an attorney and warned him that he could be subjected to a perjury charge and an insurance fraud investigation. The hearing was continued until the following day, when Mason returned to court after deciding that he would testify truthfully. Appellant was bound over on the forgery and theft charges.
A consolidated information was filed, which included other counts arising from an unrelated shoplifting incident where drugs were discovered in appellant's wallet. Based on appellant's attempt to influence Mason's testimony, the district attorney also added a charge of attempting to dissuade a witness under Penal Code section 136.1, subdivision (b)(1). Appellant was tiled before a jury and was convicted of all counts: forgery of a check under section 470, subdivision (d), grand theft of personal property under section 487, subdivision (a), dissuading a witness under section 136.1, subdivision (b)(1), petty theft under section 484, possession of methamphetamine under Health and Safety Code section 11377, subdivision (a), and being under the influence of a controlled substance *360 under Health and Safety Code section 11550, subdivision (a). Appellant also admitted two prior prison term enhancement allegations under section 667.5, subdivision (b).
The trial court imposed an aggregate prison sentence of six years: the two-year middle term for the grand theft count, a consecutive two-year term for the dissuading a witness count,[2] and two consecutive one-year terms for the prior prison term enhancements. Sentences on the remaining counts were ordered to run concurrently.
DISCUSSION
Section 136.1, subdivision (b) provides, "[E]very person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [¶] (1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge." Section 137, subdivision (c) provides, "Every person who knowingly induces another person to give false testimony or withhold true testimony not privileged by law or to give false material information pertaining to a crime to, or to withhold true material information pertaining to a crime from, a law enforcement official is guilty of a misdemeanor."
Appellant contends that his conviction under section 136.1, subdivision (b)(1) must be reversed because it was predicated solely on his efforts to dissuade Mason from giving truthful testimony at the preliminary hearing. According to appellant, section 136.1, subdivision (b)(1) does not purport to punish attempts to influence or prevent a witness's testimony, as he did in this case. Appellant acknowledges that his conduct was a violation of section 137, subdivision (c), and argues that the People simply charged him under the wrong statute.[3]
The People, on the other hand, urge a broad interpretation of section 136.1, subdivision (b)(1) that would encompass appellant's efforts to influence Mason's testimony. They argue that an effort to dissuade "any report of that victimization . . . to any judge" can be interpreted to include an effort to dissuade a report made under oath to a judge at a preliminary hearing; i.e., to prevent or influence a witness's anticipated testimony at a preliminary hearing.
Does the term "report," as used in section 136.1, subdivision (b)(1), include testimony at a preliminary hearing as the People suggest? The issue is one of statutory construction. As such, "our fundamental task . . . is to determine the Legislature's intent so as to effectuate the law's purpose. [Citation.] We begin by examining the statute's words, giving them a plain and commonsense meaning. We do not, however, consider the statutory language 'in isolation.' [Citation.] Rather, we look to `the entire substance of the statute . . . in order to determine the scope and purpose of the provision. . . . [Citation.]' [Citation.] *361 That is, we construe the words in question `"in context, keeping in mind the nature and obvious purpose of the statute . . . ." [Citation.]' [Citation.] We must harmonize `the various parts of a statutory enactment . . . by considering the particular clause or section in the context of the statutory framework as a whole.' [Citations.]" (People v. Murphy (2001) 25 Cal.4th 136, 142, 105 Cal.Rptr.2d 387, 19 P.3d 1129.)
Starting with the "plain and commonsense meaning" of section 136.1, subdivision (b)(1), a "report" may be generally defined as "an account presented." (American Heritage Dictionary (3d college ed.) p. 1158.) In the context of reporting a crime, it generally means notifying the authorities that the crime has occurred and providing information about the offense. "Testimony," on the other hand, is more specifically defined as a "declaration by a witness under oath, as that given before a court." (Id. at p. 1401, 105 Cal. Rptr.2d 387, 19 P.3d 1129.) In some contexts, the term "report" could reasonably encompass "testimony," as, for example, when members of a fact-finding committee present their conclusions to the United States Congress while under oath. But neither lawyers nor laypeople are apt to characterize testimony by a witness in a criminal proceeding as a "report." Common usage of the word "report" does not support the People's interpretation of section 136.1, subdivision (b)(1), even if preliminary hearing testimony would literally fall within the definition of "report" as "an account presented."
Even if the phrase "report . . . to any judge" might otherwise be broadly construed to encompass preliminary hearing testimony, the statutory context of section 136.1, subdivision (b)(1) demonstrates that this was not what the Legislature intended. Section 136.1, subdivision (b)(1) is not a catch-all provision designed to punish efforts to improperly influence a witness. Rather, it is one of several contained within part I, title 7, chapter 6 of the Penal Code (§§ 132-140), which establishes a detailed and comprehensive statutory scheme for penalizing the falsification of evidence and efforts to bribe, influence, intimidate or threaten witnesses.
Some of the statutes in this chapter target threats of violence made by a defendant after his conviction of a felony, or in retaliation for cooperation with law enforcement. (§§ 139, 140.) Others punish efforts to prevent a victim or witness from appearing in court and giving testimony. (§§ 136.1, subds.(a)(l) & (2), (c); 138, subd. (a); People v. Womack (1995) 40 Cal.App.4th 926, 931, 47 Cal.Rptr.2d 76.) Still others punish attempts to influence the content of testimony given, as distinguished from efforts to prevent a victim or witness from appearing at all. (§ 137, subds.(a)-(c); Womack, at pp. 930-931, 47 Cal.Rptr.2d 76.)
Efforts to prevent or influence testimony are specifically prohibited by provisions other than section 136.1, subdivision (b)(1). Section 137 forbids a defendant's efforts to change the content of a witness's testimony. (People v. Womack, supra, 40 Cal. App.4th at pp. 930-931, 47 Cal.Rptr.2d 76.) Section 136.1, subdivision (a) makes it a crime to "[k]nowingly and maliciously prevent[ ] or dissuade[ ] any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law" or to attempt to do the same; i.e., to try to prevent a witness from appearing in court and giving testimony. (§ 136.1, subd. (a)(1) & (2); Womack, at p. 931, 47 Cal. Rptr.2d 76.) Section 138, subdivision (a) penalizes bribes that are intended to dissuade a witness from appearing in court.
A review of the entire statutory scheme convinces us that when the Legislature *362 intends to penalize an effort to influence or prevent testimony, or an effort to prevent the defendant from appearing in court, it does so explicitly. Section 136.1, subdivision (b)(1) makes no reference to testimony or courtroom appearances.
In People v. Womack, supra, 40 Cal. App.4th 926, 47 Cal.Rptr.2d 76, the court addressed an issue of statutory interpretation similar to that presented here. The defendant in Womack had brutally attacked a witness and was convicted of both attempted murder and a violation of section 137, subdivision (b), which makes it a felony to attempt "by force or threat of force . . . to induce any person to give false testimony or withhold true testimony. . . ." On appeal, the defendant argued that his conviction under section 137 was improper because that statute only prohibited an attempt to influence the content of a witness's testimony. By convicting him of attempted murder, the jury necessarily found that his intent was not to influence the witness's testimony, but to prevent it altogether by killing him.
The appellate court agreed. It observed that two other statutes applied to cases in which the defendant intends to prevent a witness from testifying altogether: section 136.1, subdivision (a) and section 138. If section 137 prohibited efforts to prevent a witness from giving any testimony at all, sections 136.1 and 138 would be mere surplusage. (People v. Womack, supra, 40 Cal.App.4th at p. 931, 47 Cal.Rptr.2d 76.) To avoid this result, the court narrowly construed section 137, whose "entire sense . . . is that testimony will be given, but the perpetrator will attempt to influence the testimony. . . ." (Id. at p. 930, 47 Cal. Rptr.2d 76.)
The Womack decision is significant for our purposes because the court refused to stretch the language of the statute at issue to cover the defendant's conduct when another statute within the same chapter of the Penal Code clearly applied. Here, an effort to influence the contents of a victim's or witness's preliminary hearing testimony is governed by section 137, and an effort to prevent a victim or witness from testifying entirely is governed by sections 136.1, subdivision (a) and 138, subdivision (a). Section 136.1, subdivision (b)(1) should not be construed to punish efforts to prevent or influence testimony when it does not do so expressly, and there are other statutes within the same scheme that cover such conduct.
We observe that the two other offenses defined in section 136.1, subdivision (b) involve efforts to dissuade a victim or witness from acts other than testifying in court: the attempt to prevent or dissuade a witness from "[c]ausing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof (id., subd. (b)(2)) and the attempt to prevent or dissuade a witness from "[a]rresting or causing or seeking the arrest of any person in connection with that victimization" (id., subd. (b)(3)). In People v. Hallock (1989) 208 Cal.App.3d 595, 605-607, 256 Cal.Rptr. 264, the court concluded that the offenses defined in section 136.1, subdivision (b) targeted pre-arrest efforts to prevent a crime from being reported to the authorities, rather than courtroom testimony.
We agree with Hallock's conclusion that section 136.1, subdivision (b) punishes a defendant's pre-arrest efforts to prevent a crime from being reported to the authorities. Under the current statutory scheme, such conduct is not the equivalent of an effort to prevent a witness from giving testimony after a criminal proceeding has been commenced. Appellant's attempt to prevent or influence Mason's testimony simply is not substantial evidence of conduct *363 proscribed by section 136.1, subdivision (b)(1), although it would have been punishable as an attempt to influence a witness's testimony under section 137, subdivision (c), had it been charged under that section.
The distinction between the offenses is not merely a semantic one. The Legislature has taken pains to distinguish the various methods of influencing a witness and to establish a range of punishment for those offenses that reflects different levels of culpability. Efforts to influence the contents of a witness's testimony are generally punishable as misdemeanors. (See § 133 [providing false information to witness for purpose of affecting testimony]; § 137, subd. (c) [inducing witness to give false testimony or withhold true testimony].) Efforts to prevent a defendant from reporting a crime or from appearing in court are punished more severely, either as wobbler offenses, alternatively punishable as misdemeanors or felonies, or as straight felonies. (§ 136.1, subd. (a) [dissuading or attempting to dissuade witness from attending trial or giving testimony is wobbler offense]; § 136.1, subd. (b) [efforts to dissuade witness from reporting a crime to the authorities, causing a charging document to issue or seeking an arrest of a defendant are wobbler offenses]; § 138, subd. (a) [bribery of witness to dissuade attendance at hearing or trial is punishable as felony].)
The punishment for all of these offenses increases when the crime is accomplished by aggravated means, such as the threat of force or violence or the promise of pecuniary gain. (See §§ 136.1, subd. (c); 137, subds. (a) & (b).) But it is clear that, generally speaking, the Legislature views an attempt to alter what a witness says in court as less culpable than an attempt to prevent a witness from appearing at all or from taking steps that are predicate to the prosecution's filing of an action.
At oral argument, counsel for appellant suggested that the reason for this disparity may be that efforts to change the nature of a witness's testimony are not as inherently threatening to the integrity of the judicial process as efforts to completely prevent that witness's participation in the case. A witness who appears in court is subject to cross-examination and may be impeached through prior inconsistent statements, even if he or she has been influenced by the defendant. The same cannot be said for a witness who does not testify at all. And in cases where a witness is dissuaded from making a report of criminal conduct or cooperating with the prosecution, there may not even be a case.
All attempts to improperly influence a witness are to be discouraged, but the decision to punish some such efforts less severely than others is a rational one. Were we to uphold appellant's felony conviction under section 136.1, subdivision (b)(1), we would disrupt the Legislature's carefully calibrated system of punishment which calls for his conduct to be treated as a misdemeanor under section 137, subdivision (c).
CONCLUSION
The prosecution was obliged to prove each element of dissuading a witness under section 136.1, subdivision (b)(1) beyond a reasonable doubt. Although there was ample evidence that appellant intended to influence Mason's testimony at the preliminary hearing, there was no evidence that he intended to prevent or dissuade Mason from making a "report" as required by section 136.1, subdivision (b)(1). Had the prosecution charged him under the correct statute in this case, section 137, subdivision (c) appellant would have been convicted of a misdemeanor rather than a *364 felony. The conviction of section 136.1, subdivision (b)(1) cannot stand. (People v. Womack, supra, 40 Cal.App.4th at p. 934, 47 Cal.Rptr.2d 76; see also People v. Sanders (1998) 67 Cal.App.4th 1403, 1412, 79 Cal.Rptr.2d 806 [convictions for grand theft of real property reversed where evidence did not establish elements of that offense, but did establish uncharged crime of offering a forged deed for recording under § 115].)
The conviction of dissuading a witness under section 136.1, subdivision (b)(1) (count four) is reversed. The sentence is vacated and the matter is remanded for rensentencing. In all other respects, the judgment is affirmed.
We concur: GILBERT, P.J, and YEGAN, J.
NOTES
[1] All statutory references are to the Penal Code unless otherwise indicated.
[2] When the sentence on a violation of section 136.1 is ordered to run consecutively to the sentence for the felony to which the dissuading pertained, section 1170.15 authorizes the imposition of a full strength middle term, notwithstanding the one-third of the middle term limitation on subordinate counts under section 1170.1, subdivision (a).
[3] The trial court denied a defense motion for acquittal that was made on this ground. (§ 1118.1.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316448/ | 334 S.C. 392 (1999)
513 S.E.2d 374
PROFESSIONAL SAMPLERS, INC., Appellant,
v.
SOUTH CAROLINA EMPLOYMENT SECURITY COMMISSION, Respondent.
No. 2944.
Court of Appeals of South Carolina.
Heard January 12, 1999.
Decided February 16, 1999.
*394 Lex A. Rogerson, Jr., of Lexington; and B.W. Enlow, of Columbia, for appellant.
H.W. Funderburk, Jr., of SC Employment Security Commission, of Columbia, for respondent.
HEARN, Judge:
Professional Samplers, Inc. (Samplers) appeals from a South Carolina Employment Security Commission (Commission) decision holding Samplers' product demonstrators are employees for purposes of state unemployment insurance coverage. Samplers argues its compliance with the Commission's determination is preempted by federal law. We disagree and affirm.
Facts/Procedural History
Samplers contracts with food distributors, manufacturers, and retailers to provide personnel to demonstrate products, primarily by distributing samples and advertising materials. Product demonstrators are frequently seen in supermarkets offering prepared food samples. The demonstrators are often retired individuals who work intermittently, often with several *395 agencies. Samplers describes its demonstrators as "casual laborers."
Samplers historically has treated its demonstrators as independent contractors rather than employees. On February 15, 1995, a Commission employee issued a determination that the demonstrators were employees and that Samplers must file all future state unemployment tax returns consistent with this determination. After a hearing on July 31, 1995, the hearing officer upheld the determination. The Commission affirmed by order dated January 31, 1997. On appeal to the circuit court, Samplers conceded that the facts supported the Commission's finding that the demonstrators were properly classified as employees. Samplers contended, however, that it would forfeit a "safe haven" available under federal law if it were forced to comply with the Commission's ruling. The circuit court affirmed. Samplers appeals.
Standard of Review
The scope of this court's review is governed by South Carolina Code section 1-23-380(A)(6) (Supp.1998). We may reverse or modify an administrative decision "if such decision is affected by errors of law, characterized by an abuse of discretion, or clearly erroneous in view of the substantial evidence on the whole record." Todd's Ice Cream, Inc. v. South Carolina Employment Sec. Comm'n, 281 S.C. 254, 258, 315 S.E.2d 373, 375 (Ct.App.1984) (holding that the Commission is an "agency" within the meaning of the Administrative Procedures Act codified at S.C.Code Ann. § 1-23-310 et seq.), cert. denied (July 25, 1984).
Discussion
Because Samplers concedes that its demonstrators are properly classified as employees under the common-law "right to control" standard,[1] the sole issue on appeal is whether *396 Samplers' compliance with the Commission's decision is preempted by operation of federal law. Samplers argues its qualification for a safe haven under the Revenue Act of 1978, section 530 (as amended), Internal Revenue Code section 3401 note (1986) [hereinafter section 530] allows it to avoid complying with the Commission's determination under preemption principles. We disagree.
Samplers has enjoyed the benefits of a statutorily created safe haven under section 530, which states in part:
(a) Termination of Certain Employment Tax Liability
(1) In generalIf
(A) for purposes of employment taxes, the taxpayer did not treat an individual as an employee for any period, and
(B) in the case of periods after December 31, 1978, all Federal tax returns (including information returns) required to be filed by the taxpayer with respect to such individual for such period are filed on a basis consistent with the taxpayer's treatment of such individual as not being an employee, then for the purpose of applying such taxes for such period with respect to the taxpayer, the individual shall be deemed not to be an employee unless the taxpayer had no reasonable basis for not treating such individual as an employee.
§ 530(a)(1)(A)-(B). The statute then enumerates several standards, any one of which will satisfy the condition precedent of a reasonable basis for not treating workers as employees. § 530(a)(2). Samplers has qualified under the long-standing industry practice standard. § 530(a)(2)(C).
Remaining qualified for the safe haven requires consistency in treatment. It will not apply if the taxpayer has treated any individual in a similar position as an employee for purposes of employment taxes for any period[2] after December 31, 1977. § 530(a)(3). While the IRS has acknowledged Samplers' qualification for the safe haven, it has also acknowledged that it considers the demonstrators to be employees *397 rather than independent contractors. Accordingly, any change in Samplers' treatment of these individuals for employment taxation purposes will eliminate the safe haven that Samplers currently enjoys. The Commission's determination that the demonstrators are employees will no longer make consistency of treatment possible for Samplers.
Samplers argues the Commission's determination makes compliance with both federal and state law in this situation impossible. If it complies with state law, it will lose its federal safe haven and be subject to federal tax liability. See § 530. If it complies with federal law, it will be subject to penalties for not complying with state law. See S.C.Code Ann. §§ 41-31-350, 41-41-50. Thus, it contends an actual conflict exists such that the state law must be preempted. Samplers argues further that forcing it to comply with state law would thwart the objectives and purposes Congress intended when enacting the federal law. We disagree.
Federal law may preempt state law in three ways: first, Congress may expressly define the extent to which it preempts state law; second, Congress may occupy a field of regulation, impliedly preempting state law; third, at issue here, a state law may be preempted to the extent it conflicts with federal law. Michigan Canners & Freezers v. Agricultural Mktg. & Bargaining Bd., 467 U.S. 461, 469, 104 S.Ct. 2518, 81 L.Ed.2d 399 (1984) (citations omitted); see also Abbot by Abbot v. American Cyanamid Co., 844 F.2d 1108, 1111 (4th Cir.1988). Such a conflict arises when either compliance with both laws is impossible or when the state law frustrates the federal purpose and creates an obstacle to the fulfillment of federal objectives. Michigan Canners & Freezers, 467 U.S. at 469, 104 S.Ct. 2518; Tarallo v. Searle Pharm., Inc., 704 F.Supp. 653, 658 (D.S.C.1988); Peoples Program for Endangered Species v. Sexton, 323 S.C. 526, 530, 476 S.E.2d 477, 480 (1996).
We do not think our state law creates an obstacle to the fulfillment of federal objectives. The purpose of section 530 was to curb the IRS's practice of reclassifying subcontractors as employees for federal unemployment taxation purposes; it was aimed at controversies arising from "overzealous" IRS tax collection activity. Ren-Lyn Corp. v. United *398 States, 968 F.Supp. 363, 366 (N.D.Ohio 1997) (citations omitted). By preventing the IRS from reclassifying workers without good cause, section 530 protects "individuals whom taxpayers in good faith treated as independent contractors provided the taxpayers fulfilled tax filing requirements."[3] H.R.Conf.Rep. No. 95-1800, at 271 (1978), reprinted in Internal Revenue Acts, 1977-1979, at 1154 (West 1981). There is no indication in the act or its legislative history that a wider purpose was intended. Cf. Michigan Canners & Freezers, 467 U.S. 461, 104 S.Ct. 2518, 81 L.Ed.2d 399 (finding a conflict existed and state law was preempted when state law required agricultural associations to deal on behalf of and bind nonmembers, thereby frustrating the federal purpose of laws designed to protect producers' rights not to be coerced into joining an agricultural association or being bound by its contracts).
We also do not think there is an actual conflict sufficient to warrant preemption. Samplers' argument that compliance with both state and federal laws is impossible is not relevant in this situation. The Federal Unemployment Tax Act (FUTA), codified as I.R.C. § 3301 et seq. (1986), clearly envisions complementary state legislation. I.R.C. §§ 3302-04. However, section 530 is not a part of FUTA and is not a mandatory federal law with which every taxpayer who may be subject to unemployment tax liability must comply; it is merely an option afforded to those who do qualify. Taxpayers who do not qualify for section 530's protections are many, and yet they easily comply with both state and federal unemployment tax laws. Samplers' inability to comply with the consistency requirement if it treats its workers as employees on its state returns does not affect its ability to comply with the overall federal scheme of unemployment taxation.
Moreover, in defining the construction of our statutory scheme, the South Carolina legislature has stated:
Nothing in [the South Carolina Employment Security Law] Chapters 27 through 41 of [Title 41] ... shall be construed to cause the Commission or the courts of this *399 State in interpreting such chapters to be bound by interpretations as to liability or non-liability of employers by Federal administrative agencies, nor is it the intent of the General Assembly to require an identical coverage of employers under such chapters with that under § 3101 et seq. of the Federal Internal Revenue Code.
S.C.Code Ann. § 41-27-30. Federal law does not prevent a state from extending the coverage of its unemployment insurance law beyond federal requirements. Salem College & Academy, Inc. v. Employment Div., 298 Or. 471, 695 P.2d 25, 29 (1985) (en banc) ("Whether a state chooses to conform its law to federal standards is its own business as far as FUTA is concerned."). In fact, courts have held favorable classification by a state employment security agency is not binding on a section 530 classification. Spicer Accounting, Inc. v. United States, 918 F.2d 90, 94 (9th Cir.1990). We find persuasive the language of the Virginia Court of Appeals:
"[T]he fact that an exemption [from employment] may exist under federal law is not determinative of whether an exemption exists under the Virginia [Unemployment Compensation] Act." We are governed by the definition of "employment" contained in [our Virginia statutory scheme]. Accordingly, we reject the contention that we are, or should be, bound by the "safe haven" granted ... by the IRS.
Yard Bird, Inc. v. Virginia Employment Comm'n, 28 Va.App. 215, 503 S.E.2d 246, 252 (1998) (quoting Virginia Employment Comm'n v. Peninsula Emergency Physicians, Inc., 4 Va.App. 621, 359 S.E.2d 552, 555 (1987)). Thus, we find no conflict between our state's broader coverage without a safe haven and the federal scheme with a safe haven.[4]*400 Samplers argues that the unemployment laws were not enacted to protect workers such as its demonstrators and that none of its demonstrators has ever filed for unemployment benefits. Consequently, forcing it to comply with the Commission's determination would be illogical. Initially, we note that because Samplers has never treated its workers as employees for unemployment tax purposes, it is not surprising that they have never attempted to avail themselves of a benefit for which independent contractors do not qualify. Further, any allegation that the Commission would contest coverage of a demonstrator who did apply for benefits misses the point that the Commission would be bound by its determination that the demonstrators are employees just as Samplers is bound.
We find no conflict between our statutory employment scheme and the federal law. Nor do we find that our statutory scheme frustrates federal objectives. Accordingly, the order of the circuit court is
AFFIRMED.
CONNOR and HUFF, JJ., concur.
NOTES
[1] Whether a worker is an employee or an independent contractor is a fact-specific determination reached by applying certain general common-law principles. See, e.g., Spivey v. D.G. Constr. Co., 321 S.C. 19, 21, 467 S.E.2d 117, 119 (Ct.App.1996) (The principal factors showing right to control are: direct evidence of right to or exercise of control, method of payment, furnishing of equipment, and right to discharge.), cert. denied (Aug. 26, 1996). Both the Commission and the IRS use common-law tests when classifying workers as employees. See § 530(c)(2); S.C.Code Ann. § 41-27-230(1)(b).
[2] Samplers files quarterly federal returns.
[3] Due to the Commission's determination, Samplers no longer has a good faith basis for treating its demonstrators as independent contractors.
[4] Samplers contends that losing its safe haven will subject it to enormous retroactive tax liability. This assertion appears erroneous. Section 530 applies on a period by period basis. § 530(a)(1)(B). Provided both conditions are met for a period, no tax liability will accrue. Id.; see also H.R.Conf.Rep. No. 95-1800 at 271 (1978), reprinted in Internal Revenue Acts, 1977-1979, at 1154 (West 1981) (acknowledging assessments under section 530 apply to quarterly periods only when taxation for those periods is not barred by compliance with the statute's conditions). Thus, any change in Samplers' treatment of workers as employees on its tax returns will likely subject it to liability only for the period in which the change is first manifested and prospectively therefrom. In any case, a party's potential federal tax liability is not a factor in this court's decisions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261620/ | 861 F.Supp. 1142 (1994)
UNITED STATES of America
v.
William CUTOLO, Vincent DeMartino, Gabriel Scianna, Michael Spataro, Joseph Russo, Frank Iannaci, and Frank Campanella, Defendants.
No. CR 93-1230.
United States District Court, E.D. New York.
August 5, 1994.
*1143 *1144 Zachary W. Carter (Andrew Weissman & James Orenstein, of counsel), U.S. Atty., Brooklyn, NY, LaRossa, Mitchell & Ross (James LaRossa and John Mitchell, of counsel), New York City, for defendant Cutolo.
Santangelo, Santangelo & Cohen (George Santangelo, of counsel), New York City, for defendant DeMartino.
Gerald DiChiara, New York City, for defendant Scianna.
Richard A. Rehbock, New York City, for defendant Spataro.
James T. Moriarty, New York City, for defendant Russo.
Bruce Cutler, New York City, for defendant Iannaci.
Goltzer & Adler (George Goltzer, of counsel), New York City, for defendant Campanella.
MEMORANDUM AND ORDER
NICKERSON, District Judge:
Defendants William Cutolo, Vincent DeMartino, Gabriel Scianna, Michael Spataro, Joseph Russo, Frank Iannaci, and Frank Campanella have been indicted for conspiracy to murder in order to gain entrance to and maintain and increase their positions in an enterprise engaged in racketeering activity, in violation of 18 U.S.C. § 1959, and for using and carrying firearms in relation to crimes of violence, in violation of 18 U.S.C. § 924. Cutolo is also charged with murder under 18 *1145 U.S.C. § 1959. Defendants have made various motions.
I
The indictment alleges, in substance, the following. The defendants are members and associates of the Colombo Organized Crime Family of La Cosa Nostra, an enterprise affecting interstate commerce and engaged in racketeering activity. By June of 1991 the Colombo Family had split into two warring factions, each headed by a person desiring to become the Boss of the Family. One faction supported Victor Orena, the Acting Boss of the Family, and the other supported Alphonse Persico, son of the Boss of the Family. The defendants are allegedly members of the Orena faction.
The indictment contains five counts. The first two counts charge Cutolo with the murder of and with conspiracy to murder James Angellino in November 1988, for the purpose of gaining entrance to and maintaining and increasing Cutolo's position in the Colombo Family.
The third count says that in June 1991 all the defendants conspired to murder members of the Persico faction in order to gain entrance to and maintain and increase their positions in the Colombo Family.
The fourth and fifth counts charge the defendants with using and carrying firearms during and in relation to the crimes charged in the first three counts.
II
All the defendants move to dismiss Counts One through Three on the ground that 18 U.S.C. § 1959 is unconstitutionally vague on its face and as applied.
Section 1959 provides, in pertinent part:
Whoever, ... for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, ... or conspires to do so, shall be punished [as set forth].
The statute is "void for vagueness" only if it fails to 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." United States v. Jackson, 968 F.2d 158, 161 (2d Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 664, 121 L.Ed.2d 589 (1992).
The court considers whether § 1959 is vague as applied here, but not whether it is vague on its face. "Vagueness challenges to statutes that do not involve First Amendment interests are examined in light of the facts of the case at hand." Id. Section 1959 does not impinge on First Amendment interests.
Defendants say that the reference to "an enterprise engaged in racketeering activity" in § 1959 renders the statute unconstitutional because a defendant cannot determine what that language means. Their first argument is that enterprises do not engage in racketeering activities, people do. Second, they say that in any event the statute does not provide sufficient guidance to determine whether an enterprise has in fact engaged in racketeering activity.
A. Can an enterprise engage in racketeering activity?
Referring to caselaw under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., the defendants argue that § 1959's requirement that "an enterprise engage[] in racketeering activity" is incomprehensible. They point to rulings of the Second Circuit Court of Appeals holding that it is a misconstruction of the RICO statute to look for an enterprise's racketeering acts instead of an individual's racketeering acts. United States v. Bonanno Organized Crime Family of La Cosa Nostra, 879 F.2d 20, 27-30 (2d Cir.1989) (organized crime family not a "person" subject to suit under RICO); United States v. Persico, 832 F.2d 705, 714 (2d Cir.1987) ("The focus of section 1962(c) is on the individual patterns of racketeering engaged in by a defendant, rather than the collective activities of the members of the enterprise."), cert. denied, 486 U.S. 1022, 108 S.Ct. 1995, 100 L.Ed.2d 227 (1988); see also United States v. Private Sanitation Indus. Ass'n, 793 F.Supp. 1114, 1128 (E.D.N.Y.1992).
*1146 These decisions are not pertinent. RICO does not reach the collective activities of an enterprise. "Section 1962(c) declares it illegal for a person not for an enterprise to engage in a pattern of racketeering activity," Private Sanitation, 793 F.Supp. at 1128 (original emphasis), although the activities of the enterprise in which the person participates must affect commerce.
In contrast Section 1959 is directed toward specified crimes committed by persons on behalf of a RICO racketeering enterprise. United States v. Concepcion, 983 F.2d 369, 380-81 (2d Cir.1992), cert. denied, ___ U.S. ___, 114 S.Ct. 163, 126 L.Ed.2d 124 (1993). But by its terms the section also requires the government to prove not only that the activities engaged in by the enterprise affect interstate commerce, as in RICO, 18 U.S.C. § 1959(b)(2), but that at least some of those activities are "racketeering activity" as defined in § 1961. 18 U.S.C. § 1959(a).
B. Has the enterprise engaged in racketeering activity?
The defendants, citing RICO, say that a defendant cannot determine when an enterprise has "engaged in racketeering activity." The argument is that while § 1961(1) of RICO defines "racketeering activity" to include the commission of a long list of crimes, federal and state, § 1959 does not spell out how many crimes must be committed and by whom to satisfy that section's prerequisite that the "enterprise" be "engaged" in such activity.
An enterprise, here a group of individuals associated in fact, can only act through its members, associates, or employees. There should be no difficulty in determining whether predicate crimes committed by such persons were on behalf of the enterprise.
Presumably § 1959 does not apply where such persons committed only a single crime. The word "engaged" implies more than that. But this court need not decide how extensive the criminal activity must be before the enterprise may be said to "engage" in racketeering.
Here the indictment describes the Colombo Family as an organization dedicated primarily, if not exclusively, to extensive criminal activities coming within § 1961's definition of racketeering activity. Paragraph 10 of the indictment alleges:
The principal purpose of the enterprise was to generate money for its members and associates through various criminal activities, including the operation of illegal gambling businesses, the extortionate extensions and collections of credit, and the generation of income from various businesses through illegal means, including the exploitation of the Colombo Family's corrupt control of union officials....
It would be fatuous to say that defendants had no notice that the alleged activities of the Colombo Family fulfill § 1959's requirement that the enterprise be "engaged in racketeering activity." The pervasiveness of the enterprise's alleged racketeering activities precludes any thought that this requirement is unconstitutionally vague as applied. See United States v. Giampa, 1992 WL 249885 (S.D.N.Y. Sept. 23, 1992) (§ 1959 not unconstitutionally vague where the enterprise was the Luchese Organized Crime Family and indictment alleged means and methods of enterprise).
III
The defendants move to dismiss the first three counts because in the grand jury the government did not corroborate accomplice testimony as to murder or conspiracy to murder.
Section 1959 was originally enacted as 18 U.S.C. § 1952B, a companion to the Interstate and Foreign Travel or Transportation in Aid of Racketeering Enterprises statute. 18 U.S.C. § 1952. Section 1952 makes interstate or foreign travel or commerce with the intent to engage in actions "in violation of the laws of the State in which they are committed or of the United States" subject to federal prosecution.
In construing § 1952 the Second Circuit Court of Appeals has held that courts must look to the underlying state law to determine the elements of and defenses to the crimes charged. United States v. Kahn, 472 F.2d 272, 277 (2d Cir.), cert. denied, 411 U.S. 982, *1147 93 S.Ct. 2270, 36 L.Ed.2d 958 (1973). From this defendants argue that because Congress originally enacted § 1959 as § 1952B the government must prove here not merely the generic crime of murder but must prove all the elements of murder under New York law, must meet all New York state law defenses, and must corroborate accomplice testimony as would be required in a New York state prosecution. See N.Y.Crim.Proc.Law §§ 60.22 and 190.65.
Insofar as defendants say the government must corroborate accomplice testimony the premise of the argument is dubious because none of the cases under § 1952 required the incorporation of state procedural and evidentiary law or held the New York corroboration requirement was substantive.
In any event, the Court of Appeals for the Second Circuit has held that in a RICO prosecution the corroboration requirement is a procedural rule and need not be adhered to. United States v. Paone, 782 F.2d 386, 393 (2d Cir.), cert. denied, 483 U.S. 1019, 107 S.Ct. 3261, 97 L.Ed.2d 761 (1987). Section 1959 complements RICO and should be liberally construed in the same way. Concepcion, 983 F.2d at 381. The slight differences in wording between § 1961 of RICO and § 1959 are not significant.
Although the issue has not heretofore been raised in the Second Circuit Court of Appeals, that court has affirmed judgments of conviction under § 1959 where the District Courts have ruled that corroboration was not required. See, e.g., United States v. Amuso, 21 F.3d 1251 (2d Cir.1994). This court adheres to its holding in United States v. Amuso, 90 CR 446(S-1).
IV
The defendants seek dismissal of Counts Three and Five of the indictment, the so-called "war counts." Count Three charges that all of the defendants conspired to murder the members of the Persico faction. It reads, in pertinent part,
In or about and between June 1991 and the date of the filing of this indictment, both dates being approximate and inclusive, within the Eastern District of New York and elsewhere, ... the defendants ... conspired to murder members of the Persico faction of the Colombo Family....
Count Five charges the defendants "each used and carried firearms during and in relation to" the crime charged in Count Three.
Defendants say these counts are insufficient to charge a crime because they lack the details necessary to put the defendants on notice of the specific conduct charged, to prevent violations of double jeopardy, and to preclude the government from offering different proof at trial than it offered to the grand jury. Because the counts cover such a broad range of times and locations, defendants say they cannot adequately sort out their alibis and prepare a defense.
As noted above, the indictment sets forth the circumstances of the "war" between the Persico and Orena factions. Moreover, the alleged members of the Persico faction have been disclosed in other trials in this district. The government has offered to provide a list of those members to the defense.
The conspiracy charged in Count Three was allegedly widespread, involving numerous participants, envisioning many targets, and lasting for a long time. That breadth alone does not make the indictment too vague. The government is not restricted to charging only crimes occurring over short time periods in specific places. Defendants have adequate notice of the "war" crimes charged in Counts Three and Five to prepare their defense. The government will not succeed in any future case making charges based on the same conduct.
V
The defendants move pursuant to Federal Rule of Criminal Procedure 7(d) to strike as surplusage paragraphs 10 and 11 of the indictment. Defendants say these paragraphs contain a number of vague allegations of uncharged criminal activity that will not be part of the government's proof at trial. The paragraphs, entitled "The Purposes, Methods and Means of the Enterprise," read:
10. The principal purpose of the enterprise was to generate money for its members and associates through various criminal *1148 activities, including the operation of illegal gambling businesses, the extortionate extensions and collections of credit, and the generation of income from various businesses through illegal means, including the exploitation of the Colombo Family's corrupt control of union officials. Among the methods and means by which the members of the enterprise furthered its criminal activities were the threatened and actual use of violence, including murder.
11. The members and associates of the Colombo Family engaged in conduct designed to prevent government detection of their identities, their illegal activities and the proceeds of those activities. That conduct included a commitment to murdering persons, particularly members or associates of the Colombo Family, who were perceived as potential witnesses against members of the enterprise.
Defendants argue that this language does not name particular defendants and does not give the necessary notice of particular acts charged to constitute a valid indictment. Contrary to defendants' contention, the terms of § 1959 require the government to prove at trial that the "enterprise engaged in racketeering activity." Whether or not some of the allegations in paragraphs 10 and 11 would be unnecessary in a RICO case, here proof of the acts alleged is proper.
The defendants request notice pursuant to Federal Rule of Evidence 404(b) of each particular crime alleged in paragraphs 10 and 11 that the government plans to introduce at trial. That rule provides, in pertinent part:
Evidence of other crimes ... may ... be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial ... of the general nature of any such evidence it intends to introduce at trial.
The crimes referred to in paragraphs 10 and 11 are not "other crimes" within the meaning of Rule 404(b). Evidence of these alleged crimes goes to an element of the crime charged.
VI
The defendants ask the court to direct the government to provide material consistent with Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). They claim that the government routinely says that "impeachment" information need not be disclosed until after a witness testifies. The government says it is well aware of its obligations.
Brady is a remedial rule. The court will not order compliance with it absent a showing of repeated violations. The government should disclose material serving to impeach witnesses sufficiently early to prevent interruption of the trial.
VII
Defendants say any easing of confinement or other beneficial treatment of currently incarcerated witnesses should be disclosed pursuant to Brady. As noted, the court will not order compliance with Brady prospectively.
VIII
Defendants seek a witness list because of the long time period covered in the indictment and the extensive grounds for impeachment of various witnesses. They claim a witness list would limit their inquiries and ease their trial preparation.
Absent a particular showing of need, the government generally need not provide a witness list. United States v. Cannone, 528 F.2d 296, 302 (2d Cir.1975). Balanced against the defendants' need for the list is the danger of witness tampering or intimidation.
From prior cases the defendants are already aware of most of the government's witnesses. The indictment lists murder of potential witnesses as a means by which the Colombo Family has attempted to conceal its activities. The court will not order the government to provide a witness list.
*1149 IX
The defendants seek an order directing the government to produce, pursuant to the Jencks Act, 18 U.S.C. § 3500, all notes, reports, and memoranda prepared by all agencies that participated in the underlying investigations.
Defendants provide no authority for pre-trial production of § 3500 material. The government stated in a letter to defense counsel dated January 18, 1994 that it would provide § 3500 material when the jury is sworn. It also said that it preserves all agents' notes of interviews, whether required to do so or not. The defendants' request is denied.
X
Defendants move for a bill of particulars, pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure. They claim (1) the indictment is too vague regarding how the Colombo Family was "engaged in racketeering activity," (2) they are entitled to notice of unnamed "others" and "unindicted coconspirators," and (3) they are entitled to detailed information regarding every alleged activity listed in paragraphs 10 and 11 of the indictment and regarding the time, place, and manner of every conspiracy and other action mentioned in the indictment.
The purpose of a bill of particulars is to supplement the indictment to enable defendants to prepare their defense, to avoid unfair surprise at trial, and to permit a claim of double jeopardy. United States v. GAF Corp., 928 F.2d 1253, 1260 (2d Cir.1991); see also United States v. Gotti, 784 F.Supp. 1017, 1018 (E.D.N.Y.1992).
In defendants' detention hearings the government made proffers as to the alleged roles of the defendants in the Colombo Family. The government says that there has been detailed testimony regarding the racketeering activity alleged in the indictment in five trials in this district. Defendants have sufficient notice from paragraphs 10 and 11 of the indictment combined with the prior trials as to the alleged racketeering activities of the Colombo Family to make a bill of particulars unnecessary.
Their request for detailed information as to every allegation of the indictment exceeds the scope of a bill of particulars and amounts to a demand that the government "disclose its evidence in advance of trial." United States v. Gottlieb, 493 F.2d 987, 994 (2d Cir.1974).
The court declines, in its discretion, to direct the government to provide the names of "others" and unindicted coconspirators in Counts Three and Five of the indictment. Those counts, together with the other information available to defendants, are sufficiently specific to put the defendants on notice of the crimes charged.
Count Two of the indictment charges a conspiracy between only William Cutolo and "others" to murder Vincent James Angellino. To provide Cutolo with clearer notice of the conspiracy charged, the government should provide a bill of particulars listing known coconspirators on that count. See United States v. Feola, 651 F.Supp. 1068, 1133 (S.D.N.Y.1987), aff'd, 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 834, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989).
XI
Defendants seek to suppress tapes of conversations intercepted pursuant to a January 29, 1990 court order, saying that the tapes were not timely sealed.
Under 18 U.S.C. § 2518(8)(a) recordings must be sealed "[i]mmediately upon the expiration of the period of the order." The government sealed the tapes on February 27, 1990. The defendants argue that the last intercepted call was February 23, 1990, that the government waited four days to seal and submitted no explanation for the delay, and that therefore the tapes were not timely sealed. See United States v. Massino, 784 F.2d 153, 158 (2d Cir.1986).
While the last intercepted call was on February 23, 1990, the government says now, and said in its February 27, 1990 letter to Judge Leval regarding the sealing of the tapes, that the surveillance pursuant to the January 29, 1990 order continued through February 26, 1990. The tapes were timely *1150 sealed the day after the surveillance ended. See id.
XII
Defendants DeMartino, Spataro, and Scianna move to suppress evidence seized from them on December 16, 1991. According to testimony of Detective Maggiore at a suppression hearing and at trial before Judge Edward Korman in United States v. DeMartino, 92 CR 114, the following events occurred on that day.
Maggiore and his partner were following DeMartino. DeMartino backed up illegally on a one-way street, crossing a pedestrian cross-walk. He parked his car directly behind a gray 1977 Cadillac, which Spataro and Scianna were trying to enter with the assistance of a wire clothes hanger. Spataro and Scianna were being surveilled by other officers. The officers arrested and searched the three defendants without a warrant. Although the officers did not know it at the time, the Cadillac belonged to Spataro's wife.
None of the defendants has contradicted these facts.
DeMartino argues that a gun found in his waistband should be suppressed because he did not consent to the search of his person and the police did not have probable cause to arrest him. DeMartino challenged the admissibility of this evidence at a hearing in front of Judge Korman on February 20, 1992. United States v. DeMartino, 92 CR 114. His motion was denied, and the evidence was admitted at trial.
"[A] prior decision by another court on a motion to suppress is not ordinarily reconsidered in the absence of substantial new evidence or extraordinary circumstances." Laaman v. United States, 973 F.2d 107, 113 (2d Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993). DeMartino has not pointed to any new evidence or extraordinary circumstances. After reviewing the transcript of the suppression hearing, this court agrees with Judge Korman's decision. The court will not suppress the weapon.
Scianna seeks to suppress a gun found on him during the same incident. Spataro seeks to suppress a gun found in his pocket and ammunition, a two-way radio, ski-masks, and an alleged hit-list found in his wife's car on that day. They argue that the police did not have reasonable cause to arrest them and that the arrests were pretexts to permit unlawful searches.
Scianna pleaded guilty to being a previously convicted felon in possession of a weapon, in violation of 18 U.S.C. § 922(g)(1), on March 16, 1991. Even if there are grounds to suppress the weapon, he has admitted possession. His admission will be received in evidence at the trial. His motion is academic.
In any event, on the information currently before the court it appears that the officers had probable cause to arrest and search Scianna and Spataro because they appeared to be breaking into a car. The fact that the arrests may have been pretextual is irrelevant. United States v. Scopo, 19 F.3d 777, 782 (2d Cir.1994). If, within 10 days of the date of this order, Spataro submits an affidavit questioning the facts as laid out above, then the court will hold a hearing regarding whether there was probable cause to arrest and search him.
XIII
On March 2, 1991 defendants Iannaci and Campanella were in a car together. According to the government FBI agents and New York City Police officers, acting as part of a "Colombo Family Strike Force," stopped Iannaci and Campanella allegedly for committing traffic violations and causing an accident. The agents and officers searched the car and recovered a weapon. The two defendants, through an attorney's affidavit, dispute this account of the events. They claim that they did not commit any traffic violations and move to suppress that weapon on the grounds that the search was illegal. They also say that even if there were probable cause to arrest them the arrest was pretextual.
The pretext argument has been foreclosed by the Second Circuit Court of Appeals. The circumstances as portrayed by the government are, in fact, nearly identical to the facts *1151 of Scopo, supra (members of the Colombo Family Strike Force stop and search after traffic infractions). The court will hold a hearing as to the disputed traffic violations to determine whether there was probable cause for the arrests.
XIV
Defendants DeMartino, Scianna, Spataro, and Iannaci claim that forcing them to stand trial on Count Five would violate the protections of the Double Jeopardy clause. That count charges that each of the defendants "used and carried firearms during and in relation to a crime of violence" in violation of 18 U.S.C. § 924(c)(1). DeMartino and Scianna have been convicted of possession of a firearm having previously been convicted of a felony. 18 U.S.C. § 922(g)(1). Spataro and Iannaci were previously convicted of attempted possession of a loaded firearm. N.Y.Penal Law § 265.02(4).
These four defendants say that their prior convictions were for lesser included offenses of the crime charged in Count Five.
Double jeopardy bars additional punishment and prosecution for an offense unless "each offense contains an element not contained in the other." United States v. Dixon, ___ U.S. ___, ___, 113 S.Ct. 2849, 2856, 125 L.Ed.2d 556 (1993). The present charges against these four defendants require proof that their weapon possession was in connection with a crime of violence, an element not present in their prior convictions. To obtain the prior convictions the prosecution was required to prove that DeMartino and Scianna were convicted felons and that Spataro and Iannaci possessed loaded weapons. Those are not elements of the current charges. This prosecution is thus not barred by double jeopardy.
Scianna and DeMartino raise an additional double jeopardy claim. The Second Circuit Court of Appeals has held that prosecution "for conduct that was already incorporated into [a previous] sentence would be a second punishment, Congress did not intend to allow multiple punishments for this type of conduct, and the availability of concurrent sentences does not eliminate this double jeopardy problem." United States v. McCormick, 992 F.2d 437, 439 (2d Cir.1993).
When Scianna was sentenced on the gun possession charge by Judge Korman, his Presentence Investigation Report listed as relevant conduct the facts surrounding this prosecution. The Probation Department noted that Judge Korman could upwardly depart from the Sentencing Guideline range based on this conduct. He did not depart, and it does not appear that he considered that information to be an important factor in choosing the high end of the guideline range when he sentenced Scianna.
Because Scianna was not punished for this conduct in the prior case, the multiple punishment aspect of double jeopardy does not apply. His claim that he was "in jeopardy" because Judge Korman could have increased his sentence is incorrect. He was neither prosecuted nor punished for the relevant conduct before.
Likewise, when DeMartino was sentenced Judge Korman similarly refused to upwardly depart based on the allegations in the Presentence Investigation Report relating to this case. Judge Korman selected the high end of the guideline range because of DeMartino's decision to associate with an organized crime family immediately after leaving jail, not because of the specific allegations of the Colombo Family war.
XV
Cutolo moves to suppress statements he allegedly made while in police custody on August 28, 1993. The government concedes that if Cutolo claims that these statements were in response to interrogation there should be a hearing to determine the circumstances under which they were made. The court will hold such a hearing.
XVI
Campanella moves to suppress a statement he made to a detective in January of 1992. The government says it does not intend to use that statement at trial. This motion is thus moot.
*1152 XVII
Iannaci moves pursuant to Rules 8(b) and 14 of the Federal Rules of Criminal Procedure for severance of his trial from that of his codefendants.
Rule 8(b) provides, in pertinent part,
Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series or acts or transactions.... Such defendants may be charged in one or more counts together or separately and all defendants need not be charged in each count.
Iannaci notes that William Cutolo alone is charged in Counts One, Two and Four, based on acts that took place in November 1988 namely the murder of Vincent Angellino. Counts Three and Five, involving all of the defendants, are based on acts taking place starting in June 1991. Iannaci says the time separating these offenses, combined with the indictment's allegation that the war did not begin until around June of 1991, shows that the so-called war counts are not connected to the Angellino counts.
The government has submitted the testimony of Carmine Sessa in United States v. Persico, 92 CR 351(S-9), to support its claim that the counts are connected. It argues that the Angellino murder was an early attempt by Victor Orena to take control of the Colombo Family. It says that the outbreak of the internal war cannot be clearly understood without explaining the circumstances of the Angellino murder.
These allegations show that the defendants actions in each of the counts are related enough to warrant a joint trial. See United States v. Turoff, 853 F.2d 1037, 1043 (2d Cir.1988). Furthermore, the bulk of proof regarding the various defendants' roles in the Colombo Family as well as the nature of the Family and its activities will be the same for all counts. See id. at 1044 (overlapping facts or issues may warrant joinder).
Rule 14 gives the court discretion to order separate trials for properly joined defendants if necessary to avoid prejudice. Here it is unlikely that the jury will conflate the facts about the Angellino murder with any actions by Iannaci. To the extent that evidence is not admissible against all defendants the court will instruct the jury accordingly.
XVIII
Scianna makes a number of additional motions. To the extent they are not identical to the motions made on behalf of all defendants, above, they are addressed below.
Scianna wishes access to any confidential sources the government does not intend to produce at trial. His reliance on United States v. Saa, 859 F.2d 1067 (2d Cir.1988), cert. denied, 489 U.S. 1089, 109 S.Ct. 1555, 103 L.Ed.2d 858 (1989), is misplaced. As that case makes clear, the defendant must make a showing that disclosure of the confidential source is relevant to the defense and that the source can provide testimony "significant in determining guilt or innocence" before the informant's privilege will give way. Id. at 1073 (citing United States v. Russotti, 746 F.2d 945, 950 (2d Cir.1984), and Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)). Scianna has made no such showing.
Scianna seeks notice of the government's intent to introduce evidence of prior misconduct pursuant to Rule 404(b). There is no reason to believe the government will not comply with the provisions of that rule. Scianna also seeks an order instructing the government not to refer to extraneous crimes of his or any defense witness. In the alternative, he seeks a hearing in limine reviewing all such possible misconduct. This motion is overbroad and will be denied.
Scianna also seeks an exhibit list, allegedly pursuant to Rule 16 of the Federal Rules of Criminal Procedure. He cites no specific authority for such a request. This motion is denied.
XIX
Defendants' motions are denied except to the extent indicated above.
So Ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316457/ | 253 S.E.2d 534 (1979)
STATE of West Virginia
v.
Gary Lee FRAZIER.
No. 13866.
Supreme Court of Appeals of West Virginia.
April 10, 1979.
*535 Robert E. Keltner, Parkersburg, for P. E.
Leo Catsonis, Charleston, for intervenor-Robert Gordon Postelwaite.
Chauncey H. Browning, Jr., Atty. Gen., Pamela Dawn Tarr, Asst. Atty. Gen., Charleston, for D. E.
MILLER, Justice:
The defendant, Gary Lee Frazier, appeals from the denial by the Circuit Court of Wood County of his motion for new trial based on newly discovered evidence. We hold that the Circuit Court did not commit error, and affirm its judgment.
The defendant Frazier and Robert Postelwaite were jointly indicted for receiving stolen goods. The case was tried in April of 1972 and the jury returned a guilty verdict. Each was sentenced to one to ten years in the West Virginia Penitentiary. The sentences were stayed to enable them to perfect appeals.
In lieu of appealing, Frazier and Postelwaite filed petitions for writs of habeas corpus, which were granted by this Court on September 18, 1972, and made returnable to the Circuit Court of Wood County for hearing. The writs of habeas corpus were based on their claim of having been denied effective assistance of counsel at trial.
After a hearing in the Circuit Court of Wood County on the habeas corpus petitions, the matter was appealed to this Court, and we held that they had not been denied effective assistance of counsel. State ex rel. Postelwaite v. Bechtold, W.Va., 212 S.E.2d 69 (1975). This ruling was subsequently appealed to the United States Supreme Court, which denied certiorari. 424 U.S. 909, 96 S. Ct. 1103, 47 L. Ed. 2d 312 (1976).
On December 2, 1975, defendant Frazier filed his petition in the Circuit Court of Wood County for a new trial based on newly discovered evidence. The basis of the motion for new trial was his claim that one of the prosecution witnesses, Jack Bennett, had given false testimony at trial concerning the presence of certain numbers on an automobile engine.
In particular, Bennett at trial identified the engine, found at his house by the arresting officers, as being the one he had bought from the defendants. He testified that the engine was from a blue 1968 Ford Mustang and that it bore certain stamped numbers. At the hearing on the motion for new trial, he stated there were no such numbers on the engine and that he had been coerced by the police to say there were. He also inferred that the numbers had been placed on the engine by a State's witness.
In further support of his motion, Frazier called as a witness Ronald Gilbert, a parts manager for a local Ford dealer, who stated that from his knowledge and experience the Ford Motor Company did not stamp serial numbers on engines. He also testified that he had inspected the engine in question, which had been kept at a local garage, and that it appeared that the stamped numbers were irregularly spaced on the engine block. Frazier's counsel produced several 1968 Ford engines which were inspected by the court, and all parties agreed those engines did not have stamped numbers on their blocks.
Defense counsel requested that the court inspect the engine in question to verify that the numbers stamped on its block appeared to be irregularly spaced. The record contains a photograph which had been introduced *536 in evidence at the original trial which shows the engine block with the numbers stamped on it. The court took under advisement the question of whether it would view the engine. A few days after the motion for new trial had been heard, the engine disappeared from the garage. The record is silent as to the circumstances surrounding its disappearance.
We note initially that the defendants were not indicted for receiving the engine as stolen property, but were indicted for receiving a stolen 1968 Ford Mustang automobile.[1]
The transcript of the original trial is a part of the record before us and demonstrates that the State proceeded on the theory that the defendants received a stolen automobile. It proved the ownership of the vehicle from testimony of its owner, Patricia Gregory. She testified it had been stolen from in front of her apartment on Soyer Street in Parkersburg, where she had parked it on February 22, 1971.
The State's next witness, Randall Hall, testified that on that same evening he and an accomplice had stolen a blue 1968 Ford Mustang parked on Soyer Street. Hall testified that after he removed certain accessories from the vehicle, he parked it on the Montgomery Ward parking lot in Parkersburg. Hall stated that on the following day he went to Capri Motors, where Frazier and Postelwaite were employed. He advised them as to the location of the stolen car, and they indicated they were going to obtain it.
Hall also testified that later that same evening he returned to Capri Motors and saw the blue 1968 Ford Mustang. He said he was able to identify the car as the one he had stolen because its trunk lid had a bulge where he had pried it open.
In light of these facts from the State's case at the trial, it is obvious that the State proved a prima facie case of receiving stolen goods. The crime is statutorily defined,[2] and we have set out the essential elements in State v. Basham, W.Va., 223 S.E.2d 53, 59 (1976), approving an early statement in State v. McGraw, 140 W.Va. 547, 85 S.E.2d 849 (1955):
"In State v. McGraw, 140 W.Va. 547, 85 S.E.2d 849 (1955), this Court, in examining the offense of buying and receiving stolen goods as described in Code, 61-3-18, stated:
"`The essential elements of the offense created by the foregoing statute are: (1) The property must have been previously stolen by some person other than the defendant; (2) the accused must have bought or received the property from another person or must have aided in concealing it; (3) he must have known, or had reason to believe, when he bought or received or aided in concealing the property, that it had been stolen; and (4) he must have bought or received or aided in concealing the property with a dishonest purpose.'" [Emphasis in original]
The newly discovered evidence offered as grounds for the new trial pertained to whether the engine which had been identified at trial was, in fact, the engine from the stolen Mustang. The witness Bennett at trial testified that he had seen the defendants dismantling the blue Mustang and that he had bought the engine from them. His affidavit and testimony at the hearing *537 on the newly discovered evidence denied the presence of any numbers on the Mustang engine, contrary to his trial testimony.
The issue of the identity of the engine is at best a secondary matter. The State indicted the defendant for receiving a stolen 1968 Mustang, and was not required to prove that all of the various parts removed from the automobile and sold did, in fact, come from it. Proof of the identity of such parts would have been vital if the persons possessing the parts had been indicted for receiving them. See, e. g., Duncan v. State, 253 Ark. 53, 484 S.W.2d 340 (1972). Here, however, the State charged the defendants with receiving a stolen 1968 Mustang. The State's burden, insofar as the stolen property was concerned, was to establish that the Mustang was stolen by someone other than the defendants, and that they thereafter obtained it knowing it had been stolen. The identity between the stolen article and the received article is an essential element of the State's case, as noted in 76 C.J.S. Receiving Stolen Goods § 19:
"The identity of the property received with that alleged to be stolen must be established beyond a reasonable doubt, and by the most direct and positive testimony of which the case is susceptible. However, identity may be established by circumstantial, as well as by direct, evidence. Generally speaking, the mere fact that the property is of the same kind as that stolen is, in the absence of other circumstances, not sufficient to establish identity. . . ."
The matter of identification of a stolen vehicle as the one received was treated in State v. Stowers, 2 Wash.App. 868, 471 P.2d 115 (1970), in the following fashion:
"Nevertheless, there was sufficient direct evidence (color, year, model, date stolen and returned, punched ignition, etc.) to enable the jury to reasonably find that the car in question was in fact the Logan vehicle." [471 P.2d at 118]
See, e. g., Bell v. State, 220 Md. 75, 79-80, 150 A.2d 908, 910-11 (1958); Morris v. State, 537 S.W.2d 721, 722-23 (Tenn.Cr. App.1976); Smith v. State, 163 Tex. Crim. 265, 290 S.W.2d 530 (1956).
Consequently, Bennett's testimony at the hearing as to the lack of numbers on the engine was not relevant to any issue in the underlying criminal case. The same is true of the testimony of Gilbert.[3]
The basis of awarding a new trial for newly discovered evidence was early established in Syllabus Point 1 of Halstead v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894):
"A new trial will not be granted on the ground of newly-discovered evidence unless the case comes within the following rules: (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be, or its absence satisfactorily explained. (2) It must appear from facts stated in his affidavit that plaintiff was diligent in ascertaining and securing his evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) Such evidence must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits. (5) And the new trial will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side."
Judge Haymond in State v. Spradley, 140 W.Va. 314, 325-26, 84 S.E.2d 156, 162 (1954), collects numerous cases reaffirming this rule and notes that all five elements must be satisfied.
Not only has the defendant offered no explanation for the three-year delay in discovering the new evidence, but it is apparent that this evidence is not material to any *538 issue in the case. Its only conceivable value is to impeach those State witnesses who testified that a series of numbers were on the engine block at the time the engine was found at the witness Bennett's house.[4]
In State v. Stewart, W.Va., 239 S.E.2d 777 (1977), we recognized that, under certain circumstances, newly discovered evidence consisting solely of impeachment testimony may be sufficient to warrant a new trial if all the elements stated in the Halstead rule are met. Stewart involved newly discovered evidence which not only impeached the State's principal witness, but also furnished support for the defendant's alibi defense. Because of the dual and favorable nature of this evidence, we concluded that such evidence could well produce an opposite result at a second trial on the merits.[5]
The "newly discovered" evidence in this case falls far short of the Stewart impeachment standard. Bennett's testimony as to the lack of numbers on the engine block does not impeach the testimony of Hall, the State's key witness, who had identified the stolen vehicle and stated that the defendant Frazier and Postelwaite had obtained it from him. Furthermore, it is at best impeachment on a collateral issue, the identity of the engine, which is not relevant to any material element of the crime of receiving a stolen automobile.
The trial court was thus correct in rejecting the motion for new trial based on newly discovered evidence, and we affirm its judgment.
Affirmed.
NOTES
[1] A relevant portion of the original indictment is as follows:
"[Defendants] did unlawfully and feloniously receive from Randall K. Hall and George Chester DeBerry, one (1) 1968 Ford Mustang automobile of some value, the goods and chattels of Patricia L. Gregory, which said 1968 Ford Mustang automobile was previously feloniously taken, stolen and carried away, and they, the said GARY LEE FRAZIER and ROBERT GORDON POSTELWAITE, then and there well knew that the said 1968 Ford Mustang automobile had been unlawfully and feloniously taken, stolen and carried away, . . . ."
[2] W.Va. Code, 61-3-18:
"If any person buy or receive from another person, or aid in concealing, or transfer to a person other than the owner thereof, any stolen goods or other thing of value, which he knows or has reason to believe has been stolen, he shall be deemed guilty of the larceny thereof, and may be prosecuted although the principal offender be not convicted."
[3] Gilbert's testimony at the hearing on the newly discovered evidence motion is confusing, since he was not certain if the Ford Motor Company stamped alternative numbers on the engine block which might include some of the numbers which are a part of the serial number of the car.
[4] At trial the State called Guy Davidson of the National Auto Theft Bureau, and Dexter Buckley, Jr., a Parkersburg police officer who had accompanied Davidson and other law enforcement officials to Bennett's house to obtain the engine. At that time Buckley took photographs of the numbers on the engine which were introduced at trial. At the hearing on the newly discovered evidence, the State produced Robert Taylor, a State trooper, and Alex Geiman, an F.B.I. agent, both of whom had been with Davidson and Buckley and had inspected the engine at Bennett's house, and who testified they had seen the numbers on the engine.
[5] The newly discovered evidence rule contained in Halstead v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894), will not apply where the State has suppressed exculpatory material. In this latter event, the constitutional due process standard only requires that the evidence would have a reasonable likelihood of affecting the jury verdict. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976); Wilhelm v. Whyte, W.Va., 239 S.E.2d 735 (1977); State v. Cowan, 156 W.Va. 827, 197 S.E.2d 641 (1973); State v. McArdle, 156 W.Va. 409, 194 S.E.2d 174 (1973). Here, there is no evidence of suppression of evidence. Contrary to the defendant's assertion, the disappearance of the engine after the hearing on the newly discovered evidence does not raise a due process issue, since (1) there is no evidence the State was responsible for the disappearance; (2) the substance of the evidence was already in the record through witnesses' testimony and photographs so that the evidence was not actually "lost;" and (3) the engine numbers were irrelevant and not exculpatory in the Brady-Agurs constitutional sense. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316461/ | 253 S.E.2d 54 (1979)
Harrison SHOBE et al., etc.
v.
Ira S. LATIMER, Jr., Director, Dept. of Natural Resources and Dorcas Public Service District.
No. 14112.
Supreme Court of Appeals of West Virginia.
March 20, 1979.
*56 James M. Cagle, Charleston, for appellants.
Richard L. Earles, Asst. Atty. Gen., Charleston, for appellee, Ira S. Latimer, Jr.
Thomas L. Linkous, Charleston, for appellee, Dorcas Public Service Dist.
*55 McGRAW, Justice:
This case, on appeal from a final judgment of the Circuit Court of Kanawha County, involves a declaratory judgment action instituted pursuant to the provisions of West Virginia's Uniform Declaratory Judgments Act, W.Va.Code § 55-13-1, et seq. [1941] and R.C.P. 57, against a state officer and a local public service district to obtain a declaration of rights as to a stream of water located in Grant County, West Virginia.
The plaintiffs below brought a class action[1] seeking a declaratory judgment that a water contract between the West Virginia Department of Natural Resources and the Dorcas Public Service District was illegal, void and unconstitutional. The plaintiffs also sought a preliminary and permanent injunction prohibiting the defendants and all those acting in concert with them from enforcing and carrying out the terms of the contract subject to dispute.
The trial court, in granting the defendants' motion to dismiss, ruled that the plaintiffs did not have standing under the Declaratory Judgments Act to seek a declaratory judgment as to the validity of the water contract.
The trial court dismissed the claim for injunctive relief on the theory that the Circuit Court of Kanawha County did not have venue to enjoin the act of diverting water from a stream, Spring Run, physically located in another judicial circuit, Grant County, West Virginia. We reverse these rulings. The questions raised are standing, and venue.
The nature of the pleadings in this proceeding is significant and it is appropriate to set forth much of the complaint, excluding its formal parts. Its material parts are as follows:
1. Plaintiff Harrison Shobe is a resident property owner in Grant County, West Virginia, who resides both in Petersburg, West Virginia and Dorcas, West Virginia. He is a member of the West Virginia Council of Trout Unlimited.
2. Plaintiff Ernest Nester is a resident of Alloy, Fayette County, West Virginia. He is presently serving as Chairman of the West Virginia Council of Trout Unlimited.
3. Plaintiff Ernest Nester brings this action individually and as a class action pursuant to Rule 23(a)(1) of the West Virginia Rules of Civil Procedure. The class he represents consists of all those members of the West Virginia Council of Trout Unlimited who engage in sport fishing on Spring Run, a unique and beautiful trout stream located in Grant County, West Virginia, and who are concerned with the protection and preservation of Spring Run as a healthy cold water environment.
5. The West Virginia Council of Trout Unlimited is an unincorporated association possessing its own by-laws and having approximately 200 members throughout the State of West Virginia. The Council's governing body consists of a chairman, vice-chairman, and secretary-treasurer. The Council is comprised of five local chapters which are located in different communities throughout West Virginia. It is an organization affiliated with Trout Unlimited, a public non-profit corporation whose national headquarters is in Denver, Colorado. Trout Unlimited's principle goal is the protection and *57 enhancement of the cold water environment. In furtherance of this goal, the members of the West Virginia Council of Trout Unlimited engage in numerous projects and programs in the State of West Virginia.
6. Defendant, Ira S. Latimer, Jr., is presently serving as the Director of the West Virginia Department of Natural Resources. His business offices are located in the Capitol Building Complex in Charleston, Kanawha County, West Virginia. In his capacity, the defendant is responsible for all contracts entered into by the Department of Natural Resources.
7. Defendant, Dorcas Public Service District, is a public corporation and political sub-division of the State of West Virginia organized and operating in Grant County, West Virginia, pursuant to the powers invested in it by the laws of West Virginia as embodied in the W.Va.Code, Chap. 16, Art. 13A, Sec. 1, et seq.
13. Each of the above-described parcels of property is located on Spring Run in Grant County West Virginia. The property belonging to plaintiff Harrison Shobe is located approximately ½ mile below and downstream from the property owned by the Department of Natural Resources. Spring Run is a natural spring stream rising in the property owned by the State of West Virginia, Department of Natural Resources, and flowing naturally for a distance of approximately one and one-quarter miles through the property of plaintiff Harrison Shobe.
15. By virtue of the said contract, the defendants are diverting water from its natural course. During the period since the contract was executed the number of users in the Dorcas Public Service District has vastly increased and this increase has resulted in a concomitant diminution of the quantity of water which flows through the property of plaintiff Harrison Shobe. As a result of this diversion and reduction of flow, the plaintiffs, Harrison Shobe, Ernest Nester and the class he represents, are unable to enjoy the water in its natural uses and they believe that if no action is taken to halt this diversion, Spring Run will be eliminated as a cold water environment.
16. During the period in which the contract has been in effect, the water level of Spring Run has been reduced by approximately 30%. Because of this extensive reduction in depth, plaintiff Harrison Shobe is no longer able to use the water from the stream as a water supply for his fruit orchards. Further, because of this extensive reduction in depth, the trout which breed in Spring Run are being physically injured in that they are being scraped and scarred by the rocks on the stream's bottom. Further, because of the extensive reduction in depth, the plaintiffs are no longer able to fully enjoy Spring Run as a beautiful and plentiful trout stream and they assert that because of the defendants' actions Spring Run is close to elimination as an outstanding trout stream.
18. The plaintiffs allege that the contract entered into by the defendants and attached hereto as Exhibit C is void and illegal in that the defendant Ira S. Latimer, Jr., does not possess the legal authority to enter into the agreement to grant, bargain, sell, convey, or to lease the property and the water thereon for the purposes of supplying such water to users in a public service district.[2]
19. Plaintiff Harrison Shobe alleges that the actions of the defendants constitutes the taking of his property without due process of law and as such is in contravention of the constitution of the State of West Virginia and of the United States in that he was not given any prior notice of the defendants' action or an opportunity for a hearing to contest such actions nor has he received any compensation for the taking of his property.
20. The plaintiffs further allege that the defendants' contract and their consequent *58 actions in diverting water which naturally flows through the property of plaintiff Harrison Shobe is illegal in that it contravenes the common law of the State of West Virginia and the West Virginia Constitution, Article 8, Section 21 [sic]. Plaintiffs further allege that this diversion of water constitutes a nuisance and a continuing trespass upon the lands of plaintiff Harrison Shobe.
There is no dispute that the water being extracted by the Dorcas Public Service District has taken place by reason of the contract, counsel for plaintiffs and defendants, public service district having so stipulated.
STANDING TO SUE
Standing to sue in this case is predicated on the following allegations in the pleadings: (1) Shobe's real property interests as a riparian owner and his interests as a user of the spring have been and are being invaded by the execution of a void and illegal contract; and (2) Nester, an actual user of Spring Run for sport fishing and a chairman of an organization dedicated to the goal of preserving for future generations healthy cold-water environments such as Spring Run, has, by virtue of the diminution of the quantity of water which flows through the property of plaintiff Shobe, suffered substantial direct injury to his interests in being able to enjoy the water in its natural state, and is imminently threatened with the complete loss of the stream for sport fishing.
The trial court ruled that because plaintiffs were not actual parties to that agreement they lacked standing to challenge the validity and operation of the water contract between the two defendant governmental entities. We find this reasoning and ruling erroneous.
It is a primary requirement of the Declaratory Judgments Act that plaintiffs demonstrate they have standing to obtain the relief requested. To that end W.Va. Code § 55-13-2 [1941] provides:
Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder (emphasis added).
The statute by its terms contains no requirement that the party seeking to attack the validity of a contract be one of the contracting parties. Even if the beginning phrase of this section, "any person interested under . . . a written contract" envisions only persons who are parties to the contract, the emphasized portions of the statute clearly contemplate litigation by a third-party to a contract whose "rights, status or other legal relations" are affected by the existence and operation of such agreement. The precise extent to which language of the Act permits persons not a party to a contract to obtain declaratory relief is the more appropriate inquiry.
As a general rule, third-parties to a contract between two private citizens cannot sue to obtain a declaration as to the validity of such a contract or to raise questions as to its construction. The reason is that persons not a party to a contract generally have no substantial interest directly affected by the contract. They have no interest in guaranteeing that private citizens have not entered or do not enter into void contracts, or in forcing contracting parties to live up to their promises. See, e. g., Main Parking Mall v. Salt Lake City Corporation, 531 P.2d 866 (Utah 1975).[3] This general rule was well expressed in Wells v. Bank of Nevada, 90 Nev. 192, 522 P.2d 1014 (1974):
Controversies arising under an agreement properly are to be determined and *59 settled by parties to the agreement or their assigns, that is, by those who have legal rights or duties thereunder. Absent evidence of a third party beneficiary status, an assignment of contract rights or delegation of contract duties, neither. . . [of the nonparty plaintiffs] has rights, duties or obligations under the agreement.
The contract involved in this proceeding, however is not a contract between private persons having little or no direct impact on the plaintiffs' or the public interest. It is, in essence, a contract between two governmental entities for the diversion of a resource necessary for human life, having substantial aesthetic and recreational value, and which is currently serving as a high quality trout habitat.
Plaintiffs herein are not unrelated, intermeddling third-parties seeking to enforce a private contract having no impact on their interests. Plaintiff Shobe, as a riparian owner, has alleged a private property interest directly in jeopardy which may entitle him to some relief.[4] He is a user of the spring for domestic and agricultural purposes, as well as for sport fishing. Additionally, he is a member of an organization dedicated to preserving streams for future generations. Plaintiff Nester, as a user of the stream for recreational purposes and as chairman of an organization dedicated to the preservation of healthy, cold-water environments necessary for the habitat of trout, has a direct and substantial interest in the subject matter of this litigation.
The plaintiffs in error have a direct and substantial interest in an actual, justiciable controversy. See, e. g., Mainella v. Board of Trustees, 126 W.Va. 183, 27 S.E.2d 486 (1943). There can be no question as to Shobe's standing to seek a declaration of rights on his private property or riparian interests claim. Nester's "status" as a user of the stream is unquestionably affected by the existence and operation of the public contract. By virtue of holding office in a nonprofit organization devoted exclusively to the preservation of trout streams, and by virtue of his status as present user of the stream, he has a sufficient personal stake in the outcome of this controversy to assure that the case will be properly presented before the Court, Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), and there is a logical nexus between the status plaintiffs in error assert and the contract claim sought to be adjudicated. McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961). But for the contract the diversion would not be taking place. Thus, the considerations underlying the general rule are not present here, and are not controlling in this case.
The Declaratory Judgments Act, W.Va. Code § 55-13-12, provides that "[t]his article is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered." We are of the opinion that it would be contrary to the express purpose and spirit of the Act to deny standing to plaintiff Nester in the context of the particular facts of this case.
The requirement of a personal legal interest or right has been abandoned by the federal courts reviewing administrative or governmental conduct under the Administrative Procedures Act, see, e. g., Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970); C. Wright Handbook of the Law of Federal Courts § 13 (3rd ed. 1976). In Data Processing 90 S.Ct. at 830 the Court stated:
The "legal interest" test goes to the merits. The question of standing is different. It concerns, apart from the "case" or "controversy" test, the question whether the interest sought to be protected by the complainant is arguably within *60 the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. Thus the Administrative Procedure Act grants standing to a person "aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. § 702 (1964 ed., Supp. IV). That interest, at times, may reflect "aesthetic, conservational, and recreational" as well as economic values. Scenic Hudson Preservation Conference v. FPC, 2 Cir., 354 F.2d 608, 616; Office of Communication of United Church of Christ, 123 U.S.App.D.C. 328, 334-340, 359 F.2d 994, 1000-1006. A person or a family may have a spiritual stake in First Amendment values sufficient to give standing to raise issues concerning the Establishment Clause and the Free Exercise Clause. Abington School District v. Schempp, 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d 844. We mention these noneconomic values to emphasize that standing may stem from them as well as from the economic injury on which petitioners rely here. Certainly he who is "likely to be financially" injured, FCC v. Sanders Bros. Radio Station, 309 U.S. 470, at 477, 60 S. Ct. 693, at 698, (84 L. Ed. 869), may be a reliable private attorney general to litigate the issues of the public interest in the present case.
Professor Wright, in commenting on and analyzing this case, states at 48, supra:
[The court] announced a two-part test for standing. Standing exists if "the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise," and if "the interest sought to be protected by the complaint is arguably within the zone of interest to be protected or regulated by the statute or constitutional guarantee in question. [footnotes omitted].
Therefore, no personal legal rights requirement should be engrafted on our remedial statute and we reject that notion.
The significant and important environmental concerns underlying this action should not be lost sight of in the highly theoretical law of standing. Conflicting claims and interests as to precious natural resources are proper matters of judicial consideration, notwithstanding the difficulties and complexities so often involved. Noneconomic injury has been held sufficient to grant standing. The United States Supreme Court stated in Sierra Club v. Morton, 405 U.S. 727, 734, 92 S. Ct. 1361, 1366, 31 L. Ed. 2d 636, 643 (1970), and reiterated in United States v. Students Chal. Reg. Agcy. Pro. (SCRAP), 412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973):
Aesthetic and environmental well-being like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process. . . .
The Legislature of this State has expressly recognized the importance of the interests advanced by
[d]eclaring [it] to be the public policy of the State of West Virginia that the wildlife resources of this State shall be protected for the use and enjoyment of all the citizens of the State. All species of wildlife shall be maintained for value which may be either intrinsic or ecological or of benefit to man. Such benefits shall include (1) hunting, fishing, and other diversified recreational uses; (2) economic contributions in the best interests of the people of this State; and (3) scientific and educational uses.[5] W.Va.Code § 20-2-1 [1969].
Furthermore, by law, the "ownership of and title to . . . all fish . . . in the State of West Virginia is . . . in the State, as trustee for the people." W.Va.Code § 20-2-3 [1961].[6] It is thus *61 apparent that the water contract in question is imbued and affected with the public's interest.
Must members of the public whose substantial interests are directly and adversely affected by the acts of governmental officers stand idly by when their public servants violate the law? We think not. In our society, the people are sovereign. "The powers of government reside in all the citizens of the State, and can be rightfully exercised only in accordance with their will and appointment." W.Va.Const. art. 2 § 2. "All power is vested in, and consequently derived from, the people. Magistrates [public officers] are their trustees and servants, and at all times amenable to them." W.Va.Const. art. 3 § 2. Additionally, that section of our constitution reserves unto the people an "inalienable and indefeasible right to reform, alter or abolish [the government] in such manner as shall be judged most conducive to the public weal,"[7] and the best form of government is declared to be the one "which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration." W.Va.Const. art. 3 § 3 (emphasis supplied.) The natural citizen in our system of government has the right to expect that his elected officials, agents and appointees shall comply with the law, and we here reiterate that the plaintiffs allege illegal and unlawful conduct.
We are bound to observe that if the people have an "inalienable and indefeasible right to reform, alter or abolish [the government]" in order to correct the excesses of maladministration, they surely, through one or more of their numbers, individually or acting on behalf of the whole should have access to the courts to achieve the same end by judicial means. Moreover, it has been held in other jurisdictions that a declaratory judgment proceeding is an appropriate remedy for resolving controversies regarding the legality of acts of public officials. See e. g. Riley v. County of Cochise, 10 Ariz.App. 55, 455 P.2d 1005 (1969); 2 W. Anderson, Actions for Declaratory Judgments § 677 (2nd ed. 1951).
For the foregoing reasons we hold that when a person's significant interests are directly injured or adversely affected by governmental action, such person has standing under the Declaratory Judgments Act,[8] W.Va.Code § 55-13-1 et seq. [1941] to obtain a declaration of rights, status or other legal relations. Sufficient interest will be, in close cases, a question of degree; a formula fitting all cases does not exist. Plaintiffs have alleged a direct injury to substantial property and liberty interests resulting from governmental action. We must, at this stage of the pleadings accept their allegations as true. They thus have standing to litigate their claims.
VENUE
The trial court dismissed the claim for injunctive relief on the ground that W.Va. Code § 53-5-3 [1923] fixed venue exclusively in Grant County where the act sought to be enjoined the diversion of water was allegedly taking place. In granting the motion of the defendant, Dorcas Public Service District, the trial court stated:
It is the opinion of the court that venue on the action for an injunction is improper because the complaint seeks to enjoin the act of diversion of water which is alleged to have taken place in Grant County, West Virginia. W.Va.Code, chap. 53, art. 5, sec. 3, precludes the granting of such relief by this court.
*62 Further, it is the opinion of the court that to permit the plaintiff to maintain an action for injunction in this court would extend the venue of this court in violation of Rule 82 of the West Virginia Rules of Civil Procedure.
The provision relied on by the trial court reads in material part as follows:
Jurisdiction of a bill for an injunction to any act shall, unless it be otherwise specially provided, be in the circuit court of the county in which the . . . act is to be done, or is doing, or is apprehended.. . . .
This provision relates to the judicial power or jurisdiction of circuit courts to entertain and act on claims for injunctive relief rather than to venue.[9] The trial court committed error in concluding that venue for the injunctive relief was improper because the provision relied on in dismissing the claim does not govern venue. Moreover, this statutory provision has been held to be applicable only where an injunction is the exclusive relief sought and inapplicable where injunctive relief is merely ancillary or incidental to the primary claim and purpose of the law suit. Lewis, Hubbard & Co. v. Pugh, 115 W.Va. 232, 174 S.E. 880 (1934); State v. Fredlock, 52 W.Va. 232, 43 S.E. 153 (1902).
The complaint in the instant case primarily seeks a declaratory judgment that the contract entered into by the defendants is illegal. Incidental to the declaratory judgment, plaintiffs seek injunctive relief prohibiting "the defendants . . . from enforcing and carrying out the terms of the contract in question." The thrust of this litigation focuses on the validity of a governmental contract from which all the problems originate and flow; the injunctive relief sought is directed at the parties who are executing the contract. We, therefore, conclude that W.Va.Code § 53-5-3 [1923] has no application to this proceeding and does not preclude the Circuit Court of Kanawha County from granting the injunctive relief sought by plaintiffs.
The trial court also concluded that it had lacked venue to award injunctive relief under the Declaratory Judgments Act and R.C.P. 57, because R.C.P. 82 expressly provides that the West Virginia Rules of Civil Procedure shall not be construed to extend the venue of the court.
Venue is controlled by statute. Since the Declaratory Judgments Act does not fix venue in a declaratory judgment suit, the general venue statutes relating to civil actions apply. H. Molsen and Company v. Harp and Lovelace, 516 S.W.2d 433 (Tex.Civ.App.1974). When a state officer is properly made a party defendant in a civil action, venue is controlled and determined by the law embodied in W.Va.Code § 14-2-2 [1974].[10] If venue is properly laid against a state officer under this provision, then venue as to other defendants is also proper under traditional venue-giving defendant principles. Taylor v. Baltimore and Ohio Railroad and State Road Commission, 138 W.Va. 313, 75 S.E.2d 858 (1953).
Prior to a 1974 amendment to W.Va.Code § 14-2-2, suits against the governor, other state officers, and state agencies could only be prosecuted in the circuit court of the *63 county of the seat of government, namely the Circuit Court of Kanawha County. Davis v. West Virginia Bridge Commission, 113 W.Va. 110, 166 S.E. 819 (1933). The amendment, adding a subsection (b), expands venue and permits a state officer to be made a party defendant in certain actions involving real property commenced in a circuit court other than the Circuit Court of Kanawha County. This amendment has already produced an appellate court opinion,[11] subsequent legislative adjustment,[12] and a further pronouncement by this Court.[13]
In this action, plaintiff Shobe, as a riparian owner, alleges, among other things, that the acts of the defendants infringe on his property rights in the stream by reducing its normal flow. This, in the judgment of the Court, constitutes an allegation involving the taking or damage to real property within the meaning of W.Va.Code § 14-2-2(b). Venue is therefore proper in either the Kanawha County Circuit Court or in the Grant County Circuit Court. This provision does not provide that actions authorized to be brought in the county where the land is located must be brought there; it gives the parties instituting the action an option to select the court in which to proceed. Since W.Va.Code § 14-2-2 clearly and unambiguously permits venue to be laid in the Kanawha County Circuit Court, the trial court erred in concluding it lacked venue to grant injunctive relief in this proceeding.[14]
For the foregoing reasons, the judgment complained of is reversed and the case is remanded for further proceedings consistent with the law expressed herein.
Reversed and remanded.
NOTES
[1] The trial court did not rule on the class action aspects of the case.
[2] While no party has raised or argued the point at this stage of the proceeding, we do note that W.Va.Code § 20-1-15 qualifies the authority of the Director of the Department of Natural Resources to convey real property interests under W.Va.Code § 20-1-7.
[3] See, J. Sax, Standing To Sue: A Critical Review of the Mineral King Decision, 13 Natural Resources J. 76 (1973).
[4] For an analysis of substantive water law in West Virginia, see the following:
M. Lugar, Water Law in West Virginia, 66 W.Va.L.Rev. 191 (1963-64); Note, 80 W.Va.L. Rev. 356 (1977-78).
[5] See also, Natural Streams Preservation Act, W.Va.Code §§ 20-5B-1 et seq.
[6] Although the complaint does not refer to or rely on the wildlife licensing requirements of West Virginia, we would mention that plaintiff Nester is likely required by W.Va.Code § 20-2-27 to obtain a license to fish during open season; that the Class B resident statewide fishing license fee is six dollars, W.Va.Code § 20-2-40; and that an additional fee of three dollars is required for a resident statewide trout fishing license under W.Va.Code § 20-2-46c, the revenues from which are to be used upon order of the director of natural resources for trout hatchery production. See also, W.Va.Code § 20-2-28 exempting bona fide resident landowners from licensing.
[7] This section is reluctantly but nevertheless commonly held by political scientists and constitutional lawyers as a reservation of the right of revolution under certain circumstances to the sovereign people.
[8] See, K. Davis, The Liberalized Law of Standing 37 Univ.Chic.L.Rev. 450 (1969-70).
[9] See 11B M.J. Jurisdiction § 2 (1978) for definitions of jurisdiction and venue and the distinction between them.
[10] That provision, fixing venue for actions, against the state, as worded when the suit was instituted, reads as follows:
(a) The following proceedings shall be brought and prosecuted only in the circuit court of Kanawha County:
1. Any suit in which the governor, or any other state officer, or a state agency is made a party defendant, except as garnishee or suggestee.
2. Any suit attempting to enjoin or otherwise suspend or affect a judgment or decree on behalf of the state obtained in any circuit court.
(b) Any proceeding for injunctive or mandamus relief involving the taking, damage or title to real property may be brought and presented in the circuit court of the county in which the real property affected is situate.
This section shall apply only to such proceedings as are not prohibited by the constitutional immunity of the state from suit under section 35, article VI of the Constitution of the State.
[11] Phares v. Ritchie, W.Va., 219 S.E.2d 698 (1975), involved a mandamus action instituted in the Randolph County Circuit Court by citizens owning real property abutting a road located in that county to compel the Commissioner of Highways to continue its maintenance.
[12] W.Va.Code § 14-2-2 was amended again in 1976 with subsection (b) thereof being amended and reenacted to read:
Any proceeding for injunctive or mandamus relief involving the taking, title, or collection for or prevention of damage to real property may be brought and presented in the circuit court of the county in which the real property affected is situate (emphasis added).
[13] In State ex rel. Ritchie v. Triplett, W.Va., 236 S.E.2d 474 [1977], a writ of prohibition was granted based on the holding in Phares, supra, n.1, terminating further proceedings in mandamus in the Circuit Court of Randolph County concerning maintenance of a road located in that county.
[14] In Lake v. Potomac Light & Power Co., 150 W.Va. 641, 647, 149 S.E.2d 230, 233-34 (1966), this Court recognized that a party may obtain both declaratory and injunctive relief in one action. See, Note, 73 W.Va.L.Rev. 164 (1970-71). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316488/ | 513 S.E.2d 773 (1999)
236 Ga. App. 874
In the Interest of C.M. et al., children.
No. A98A1740.
Court of Appeals of Georgia.
March 11, 1999.
*774 Culp & Smith, John C. Culp, Atlanta, for appellant.
Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie B. Hope, Assistant Attorneys General, Sanders B. Deen, Marietta, for appellee.
SMITH, Judge.
This is an appeal by a mother from an order terminating her parental rights to her two minor children, C.M. and M.M.[1] Appellant contends there was insufficient evidence to find that M.M. was deprived or that the deprivation of M.M. and C.M. was likely to continue. We disagree and affirm.
*775 Before considering whether to enter an order terminating parental rights, the trial court must first determine whether there exists "clear and convincing evidence of parental misconduct or inability." OCGA § 15-11-81(a). To reach this determination, the court must find that the child is deprived within the meaning of OCGA § 15-11-2(8)(A) due to a lack of proper parental care or control by the parent in question, that this state of affairs is likely to continue or is not likely to be remedied, and that such deprivation will or is likely to cause the child serious physical, mental, emotional, or moral harm. OCGA § 15-11-81(b)(4)(A). If the court makes this preliminary determination based on clear and convincing evidence, termination of parental rights is authorized if the court likewise finds such action will best serve the child's interest and needs, "including the need for a secure and stable home." OCGA § 15-11-81(a).
On appeal of a termination of parental rights, the reviewing court defers to the lower court in the areas of factfinding and weighing of the evidence, and we must affirm unless the appellate standard is not met. In the Interest of K.S.W., 233 Ga.App. 144, 147(1), 503 S.E.2d 376 (1998). This court also views the evidence in the light most favorable to the appellee. In the Interest of A.M.V., 222 Ga.App. 528, 529, 474 S.E.2d 723 (1996).
So viewed, the evidence shows that in August 1994, appellant took her two-year-old son, C.M., to the Kennestone Hospital Emergency Room. He was very sick with a high fever, and E. coli bacteria, a component of human feces, were found in his bloodstream. C.M. was transferred to Scottish Rite Hospital. While alone with C.M. in his room at Scottish Rite, appellant injected the contents of a syringe, filled with a mixture of feces and urine, into C.M.'s intravenous tube. A hospital camera recorded appellant's action. Appellant was arrested and charged with cruelty to children and aggravated assault. In April 1996, she entered a non-negotiated plea of guilty to the charges and was sentenced to seven years concurrent as to each count, with five years to be served on probation.
In late August 1994, the Juvenile Court of Cobb County entered an order placing C.M. in temporary custody of the Cobb County Department of Family & Children Services ("DFACS"). In September 1994, the court entered an order returning legal custody of C.M. to his father, directing that C.M.'s paternal grandparents retain physical custody of C.M. and his one-year-old sister, M.M. Following a deprivation hearing in January 1995, the court again awarded temporary legal custody of both C.M. and M.M. to DFACS.
In August 1996, the court entered an order extending DFACS's custody of both children and finding clear and convincing evidence that the children were deprived. The record contains no evidence that this order was ever appealed.
In October 1996, DFACS filed a petition for termination of the parental rights of appellant and her husband. At the termination hearing, appellant testified that she injected C.M. with a used syringe at the Scottish Rite Hospital because she had been raped when she was 18; she had given up a child for adoption; her brother had died; and she was experiencing marital problems. Appellant acknowledged that she had injected C.M. once before with the same mixture and that "the whole thing was very dangerous."
C.M. had been admitted to the emergency room approximately twenty-eight times in the first two years of his life. Aside from ear infections, no evidence was presented that C.M. had any medical problems warranting so many emergency room visits. No evidence was presented that appellant was observed injecting feces into or otherwise harming her younger child, M.M. But evidence was presented that M.M. had been admitted to the hospital approximately nineteen times in the first nine months of her life, although she had no documented medical problems other than common colds. In proportion to her age, the number of hospital emergency room visits experienced by M.M. exceeded that of C.M. Since the children were separated from appellant, neither child has had any serious medical problems.
Beatrice Yorker, an associate professor of nursing and associate provost at Georgia State University, testified concerning a condition known as Munchausen Syndrome by *776 Proxy (MSP). After hearing testimony regarding her degrees in nursing, psychiatric nursing, and law, as well as her research and publications regarding MSP, the court, over objection, qualified her as an expert with regard to MSP.
Yorker testified that MSP is a disorder in which a parent, usually a mother, induces or fabricates an illness in a child for the purpose of obtaining medical or some other kind of attention. She stated that MSP is a form of child abuse that may take the form of falsifying illness or actively inducing illness in a child. She characterized appellant's injection of urine and feces into C.M.'s bloodstream as a relatively common form of active induction of MSP. Marital strife is a common "trigger" for MSP, as is criticism of the mother in her parenting skills. Yorker testified that from her review of the medical records, observation of the children's improvement upon separation from the parent, as well as "most definitively" by covert surveillance, it was her opinion that appellant fit the characteristics of MSP.
Noting that there is no record of even a single successful treatment for active induction of MSP, she testified that no treatment has been discovered for MSP. She also testified without objection to "very strong evidence" that once a child has been identified as a victim of MSP, other children are at risk for abuse. In Yorker's opinion, MSP parents should not be allowed unsupervised access to children. Young children, particularly pre-verbal children, are more often victims of MSP, although some children continue to be abused through their teenage years.
1. The mother first contends that the evidence was insufficient to support the juvenile court's finding that M.M. was deprived. But it is well established that, when no appeals are taken from juvenile court orders finding that a child was deprived, an appellant is bound by that finding and any challenges to those orders are not preserved for appeal. In the Interest of E.C., 225 Ga. App. 12, 14-15, 482 S.E.2d 522 (1997). Here, the record shows no appeal of the order finding that both C.M. and M.M. were deprived. Appellant therefore is bound by that finding, and this enumeration of error is not preserved for appeal.
2. We next consider the mother's contention that the evidence presented at the termination hearing did not support the juvenile court's conclusion that the deprivation of C.M. and M.M. was likely to continue. Evidence of past parental conduct resulting in deprivation may be considered in determining whether the deprivation is likely to continue and cause harm to the children. In the Interest of J.S., 232 Ga.App. 876, 879, 502 S.E.2d 788 (1998); A.M.V., supra, 222 Ga. App. at 531-532, 474 S.E.2d 723. Moreover, in a termination case, evidence that is one or two years old is not outdated, because there will necessarily be some passage of time between the date the children are removed from the parents' home and the date of the termination hearing. Id. at 531, 474 S.E.2d 723. The juvenile court is not required to reunite the children with appellant in order to obtain current evidence of deprivation. E.C., supra, 225 Ga.App. at 16, 482 S.E.2d 522. Therefore, evidence of appellant's past conduct is relevant to the determination of whether the deprivation of the children is likely to continue.
In determining that appellant's lack of proper parental care or control is the cause of such deprivation, a court may consider many factors, including: the parent's conviction and imprisonment for a felony having a demonstrably negative effect on his or her relationship with the child; egregious conduct or evidence of past egregious conduct of the parent toward the child or another child of a physically, emotionally, or sexually cruel or abusive nature; or an injury or death of a sibling under circumstances that constitute substantial evidence that such injury or death resulted from parental neglect or abuse. OCGA § 15-11-81 (b)(4)(B)(iii), (iv), (vi).
Ample evidence of appellant's egregious conduct toward the children supported the trial court's conclusion that deprivation was likely to continue. C.M. was admitted to the emergency room approximately twenty-eight times in the first two years of his life, but since appellant lost custody he has had only common childhood illnesses. Appellant acknowledged, and a video camera recorded, her injection of C.M. with a used syringe full of her own feces and urine. Although she *777 realized that "the whole thing was very dangerous," appellant admitted that this was not the first time she had injected C.M. with such a mixture. The deliberate placing of her son's life in jeopardy certainly was egregious conduct; as a result, appellant pled guilty to cruelty to children and aggravated assault, and was imprisoned.
With respect to M.M., the evidence of C.M.'s abuse showed appellant's past egregious and abusive conduct toward M.M.'s sibling, as well as an injury of a sibling with substantial evidence that appellant committed the abuse, was convicted of it, and was imprisoned. OCGA § 15-11-81 (b)(4)(B)(iii), (iv), (vi). Furthermore, evidence was presented that M.M. received emergency room treatment approximately nineteen times in the first nine months of her life, although she had no documented illnesses other than colds. This pattern ceased, as it did with C.M., when she left appellant's custody.
The evidence established that appellant suffers from MSP. Her past egregious conduct toward C.M. established that she is an active inducer of MSP. Uncontradicted expert testimony was presented that there is no treatment available for active inducers of MSP and that appellant will always suffer from MSP. The expert also testified that appellant is likely similarly to abuse another child. Given appellant's past egregious conduct, in conjunction with expert testimony that such conduct was likely to continue and to include other children and that there is no treatment for appellant's condition, the court properly concluded that the children will likely be deprived in the future.
Appellant contends that the expert's testimony was conflicting and insufficient to establish present unfitness. This court, however, does not weigh the evidence or determine the credibility of witnesses; it defers to the trial court's factfinding unless the appellate standard is not met. K.S.W., supra, 233 Ga.App. at 147(1), 503 S.E.2d 376. Appellant has failed to enumerate as error, to assert specifically in argument, or to cite authority for any challenge to Yorker's qualifications or the admissibility of the evidence upon which she relied in her testimony. This issue therefore is abandoned on appeal. Schill v. A.G. Spanos Dev., 217 Ga.App. 260, 262, 457 S.E.2d 204 (1995).
Appellant cites the only other Georgia decision dealing with MSP and relies upon its holding, but that case is both procedurally and factually inapposite here. In the Interest of M.A.V., 206 Ga.App. 299, 425 S.E.2d 377 (1992), overruled on other grounds, In the Interest of J.P., 267 Ga. 492, 480 S.E.2d 8 (1997). In M.A.V., we found the evidence insufficient to establish that the sibling of a victim of MSP was deprived so as to support a transfer of temporary custody to DFACS. Id. at 302(1), 425 S.E.2d 377. The appellant in M.A.V. filed a timely appeal from that custody order, in contrast to appellant here, who failed to appeal the custody order finding that M.M. was deprived and thus has not preserved that issue on appeal. See In the Interest of J.M.D., 221 Ga.App. 556, 558, 472 S.E.2d 123 (1996). More importantly, M.A.V. did not live with his mother at the time she abused his brother and, in fact, had never lived with her. M.A.V., supra at 300, 425 S.E.2d 377. In contrast, M.M. was living with appellant at the time she abused C.M. Finally, the only evidence of deprivation of the child in M.A.V. was the testimony from an earlier termination hearing regarding the abused sibling. Id. at 300, 425 S.E.2d 377. The mother's rights to M.A.V. were not in issue at that time, and she had no opportunity to cross-examine witnesses with regard to M.A.V. Id. at 302(2), 425 S.E.2d 377. Here, evidence was adduced with respect to both children. M.M.'s medical history displayed the same pattern of unexplained numerous emergency room visits as that of C.M., and an expert testified specifically with regard to the likelihood that M.M. would be a victim of MSP.
For these reasons, we conclude that clear and convincing evidence was presented that the deprivation caused by appellant was likely to continue and that the termination of appellant's parental rights was in the best interests of the children.
Judgment affirmed.
JOHNSON, C.J., and BARNES, J., concur.
NOTES
[1] In the same order, the court declined to terminate the parental rights of the father. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316308/ | 253 S.E.2d 585 (1979)
40 N.C. App. 652
CITY OF DURHAM, Plaintiff,
v.
Marjorie S. KEEN and spouse, the County of Durham, Original Defendants, and
Robert C. Knott and wife, Patricia P. Knott, Additional Defendants.
No. 7814SC511.
Court of Appeals of North Carolina.
April 17, 1979.
*589 Rufus C. Boutwell, Jr., Asst. County Atty., Durham, for plaintiff-appellee City of Durham.
Blackwell M. Brogden, Jr., and E. C. Harris, Jr., Durham, for defendant-appellant Marjorie S. Keen.
C. Horton Poe, Jr., Durham, for defendants-appellees Robert C. Knott and Patricia P. Knott.
No counsel for defendant-appellee County of Durham.
HEDRICK, Judge.
Defendant first contends that the sale of the subject property is void and thus should have been set aside under Rule 60(b)(4) and (6) because the Commissioner failed to comply with the applicable statutes concerning notice of the sale. Defendant first argues that the provisions of G.S. § 1-339.17(a)(1), requiring that notice be posted at the courthouse door for thirty days immediately preceding the sale, were not met. The record, however, discloses that notice was posted on 19 September 1977 and that the sale was held at 12:00 noon on 19 October 1977. Rule 6(a) provides in pertinent part:
In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, including rules, orders or statutes respecting publication of notices, the day of the . . . publication after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included . .
Additionally, G.S. § 1-594 provides: "The time for publication of legal notices shall be computed so as to exclude the first day of publication and include the day on which the act or event of which notice is given is to happen, or which completes the full period required for publication." See also G.S. § 1-593. Applying the foregoing rules to the facts in the present case, it is clear that the notice was posted for thirty days as required. Defendant next argues that the Commissioner should have given her notice in accord with the provisions of G.S. § 45-21.17(4), which requires that notice of a foreclosure sale be mailed twenty days prior to the sale. Pursuant to G.S. § 45-21.1, however, this statute applies only to "a sale of real property pursuant to an express power of sale contained in a mortgage or deed of trust." We hold that the provisions of G.S. § 45-21.17(4) do not apply to a tax foreclosure sale.
Defendant next contends that the court erred in holding that the defendant failed to show excusable neglect or sufficient equitable grounds to support her motion to set aside the judgment under Rule 60(b)(1) and (6). Defendant argues that she introduced evidence tending to show that she paid her employer $400.00 for transmittal to the tax supervisor of the City of Durham, that she thought that the payments were going to discharge her tax liability, and that after being served she took no action because she was unaware that her account was not being credited with the payments. The court found as facts that the defendant "had received service of a Summons and Complaint to foreclose taxes and testified that she understood the City was attempting to foreclose her property for failure to pay taxes" and that she "had not responded to any demands, notices or legal process prior to the application for a Writ of Possession." *590 The Court concluded that the defendant "was not diligent in protecting her interest in her property," that her "evidence fails to show that her failure to answer was through mistake, inadvertence, surprise, or excusable neglect," and that her actions "with respect to her lack of diligence in protecting her interest do not entitle her to any equitable relief."
The trial judge's findings of fact on a Rule 60(b) motion are conclusive on appeal when supported by competent evidence; however, the conclusions of law based thereon are reviewable on appeal. Dishman v. Dishman, 37 N.C.App. 543, 246 S.E.2d 819 (1978); U. S. I. F. Wynnewood Corp. v. Soderquist, 27 N.C.App. 611, 219 S.E.2d 787 (1975). The trial court found that the defendant received notice of the action against her, understood the nature of the action, and did not respond until after her property had been sold. These facts are supported by competent, uncontroverted evidence. The court concluded that the defendant had failed to show excusable neglect or that she was entitled to equitable relief. We think the facts found support the court's conclusions. The exceptional relief provided by Rule 60(b) "will not be granted where there is inexcusable neglect on the part of the litigant. `A lawsuit is a serious matter. He who is a party to a case in court "must give it that attention which a prudent man gives to his important business." [citations]' Pepper v. Clegg, 132 N.C. 312, 43 S.E. 906 (1903)." Holcombe v. Bowman, 8 N.C.App. 673, 676, 175 S.E.2d 362, 364 (1970).
Finally defendant contends that the gross inadequacy of the sale price coupled with "the numerous defects appearing in the record" requires that the sale be set aside. It has long been held that inadequacy of price alone is not grounds for setting aside a tax sale, but that some element of fraud, suppression of bidding or other unfairness must appear before a court of equity can afford relief. Duplin County v. Ezzell, 223 N.C. 531, 27 S.E.2d 448 (1943). The defendant in the present case has failed to show any fraud, suppression of bidding or other unfairness in the conduct of the sale.
We hold there is plenary evidence in the record to support the decision of the trial court and the defendant's motion to set aside the judgment was properly denied.
Affirmed.
VAUGHN and CARLTON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316319/ | 253 S.E.2d 517 (1979)
STATE of West Virginia
v.
Franklin Anthony COX alias "Acy".
No. 14028.
Supreme Court of Appeals of West Virginia.
April 10, 1979.
*518 Paul S. Atkins, Charleston, Timothy G. Leach, Beckley, for P. E.
Chauncey H. Browning, Jr., Atty. Gen., Frances W. McCoy, Asst. Atty. Gen., Charleston, for D. E.
McGRAW, Justice:
"Acy" Cox was convicted of armed robbery in the Circuit Court of Kanawha County and was sentenced to thirty years in the State Penitentiary.
He complained to this Court that in the pretrial of his case two errors were committed which were prejudicial to his cause and he assigned them as follows:
1. The Court erred in denying and overruling defendant's special plea in bar concerning denial of a speedy trial.
2. The Court erred in denying and overruling defendant's special plea in bar concerning an agreement made to him that he would not be prosecuted.
Additionally, the petitioner claims prejudicial error in the course of the trial as follows:
The Court erred in refusing to allow defendant to produce circumstantial evidence which would tend to show that another certain person committed this crime and that the defendant, your petitioner, had been mistaken for this other person before, by credible witnesses.
We affirm the conviction because the delay in his trial was caused by his incarceration in a federal penitentiary; his testimony in federal court contradicted his claim here with respect to his plea bargain, and two eyewitnesses positively identified him as the armed robber.
I
We will take the petitioner's last assignment of error first. He argues that a principle fact in issue was the identity of the armed robber and he asserts that the crime was committed by another person who bore a marked resemblance to him, the defendant. In support of this theory, defense counsel presented evidence to the jury that the third party had confessed to the crime and that third party's photograph was introduced and made available to the jurors.
The State's evidence was the testimony of three eyewitnesses to the robbery; two of the three witnesses positively identified the defendant as the robber; the third witness was positive, but not certain, in his identification of the petitioner.
The petitioner complains that the trial court erred by not allowing the petitioner to show that another person, not related to this case, had once identified him as an automobile thief who had committed a crime to which the look-alike later pleaded guilty.
The trial court refused to admit this testimony saying it was not material or relevant because it did not go to the credibility of the eyewitnesses. We think the trial court was correct in its ruling and note that the defendant was permitted to put on his evidence to support his theory of mistaken identity, and his theory was, therefore, before the jury. We find no reversible error in this assignment by the petitioner.
II.
The petitioner says that the circuit court erred in denying his special plea in bar based in denial of a speedy trial. He argues his constitutional right to a speedy trial was violated because he was not brought to trial until two and one-half years after his indictment, and he asserts that the delay was prejudicial to his defense because the person whom he contends committed the crime could not be located at the time of trial.
Briefly, the factsthe defendant was returned to West Virginia from Ohio on December 21, 1972, and by warrant was charged with armed robbery on January 6, 1973. On March 27, 1973, defendant plead guilty to a federal firearms charge, received a two year sentence, and was transferred to a federal penitentiary in Georgia, arriving there in April of 1973. He was indicted by the Kanawha County Grand Jury in April of 1973, and a capias was issued some fifty days later, on June 12, 1973. In August of 1973, the Kanawha County prosecutor *519 learned of defendant's imprisonment at a federal penitentiary in Atlanta, Georgia, and a detainer was immediately filed for temporary custody of defendant, but this effort was unsuccessful. In October of 1973, a second detainer was filed with a Minnesota federal prison to which the defendant had been transferred. The defendant filed a habeas corpus action seeking to prevent extradition to West Virginia. Several witnesses from West Virginia went to the Minnesota extradition hearing, but defendant did not show up for the hearing and the extradition request was honored. The record is not as complete at this point as would be desirable but it appears that the defendant was returned to West Virginia on the armed robbery indictment somewhere between April of 1975 and October 1, 1975. A December 1, 1975 trial date was continued at the defendant's request to the January, 1976 term of court at which he was tried and convicted on January 21, 1976.
The controlling law on this issue is found in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). There the United States Supreme Court adopted a balancing approach for speedy trial claims in which the conduct of the government and the defendant are weighed against one another on a case-by-case basis. Four factors are to be considered in this balancing process: (1) length of delay; (2) the reason for the delay; (3) the defendant's assertion of his rights; and (4) prejudice to the defendant. The Court made it palpably clear in Barker that it regarded none of the factors alone as either necessary or a sufficient condition to support a finding that there has been a deprivation of the right to a speedy trial.
Applying the above principles to the facts of this case, we begin our examination with the length of delay. The delay of approximately two and one-half years between indictment and trial clearly warrants further inquiry.
The primary reason for the delay, as discussed earlier, was that the defendant was outside the jurisdiction incarcerated in a federal penitentiary. In Smith v. Hooey, 393 U.S. 374, 89 S. Ct. 575, 21 L. Ed. 2d 607 (1969), the Supreme Court held that on a defendant's demand, the State has a constitutional duty "to make a diligent, good-faith effort" to bring him to trial. Id. at 383, 89 S.Ct. at 579. We adopted a similar rule for the purposes of this State's "three term rule," embodied in W.Va.Code § 62-3-21, in State ex rel. Stines v. Locke, W.Va., 220 S.E.2d 443 (1975).
From a review of the record, it appears that the prosecuting authorities of Kanawha County made a diligent, good-faith effort to secure the presence of the accused for trial. The significant delay in this case stems from defendant's imprisonment in federal penitentiaries, the refusal of federal officials to release him to temporary custody, and the defendant's efforts to prevent extradition. At one point he even sought assistance in this regard from the United States Attorney's office in West Virginia.
On the third factor, the defendant in this case did not assert his speedy trial right until September of 1975.
Finally, the defendant was not prejudiced in his defense; it appears the critical witness had not disappeared, was known to be on parole in Ohio, but was not subpoenaed.
Based upon the above factors, we affirm the trial court's denial of defendant's special plea in bar, and find the State of West Virginia complied with all constitutional and statutory requirements pertaining to a speedy trial.
III.
Finally, in a significant claim, the claim which moved the Court to hear the defendant's case, he claims that the court erred in holding him to trial because he had entered into an agreement, the substance of which was that he would not be prosecuted for this offense.
The defendant contends a state policeman, a trooper, promised him he would not be prosecuted on an armed robbery charge if he would provide (1) information concerning an important criminal case which was *520 currently under investigation; (2) plead guilty to federal gun possession charge; and (3) provide information and testimony on several other charges. That is the essence of the claimed agreement.
The defendant contends that he performed his part of the bargain and he argues that the State is bound by this agreement irrespective of whether it was made by a person having authority to make such agreement and irrespective of whether the promise is fulfillable. He claims that when a defendant relies on such promise to his detriment and cannot be restored to his former position, he is entitled to specific performance of the agreement not to prosecute.
The State asserts, in response, that the information provided to the government by defendant was given before any promise was made and therefore defendant did not rely upon it to his detriment; that the defendant did not deal in good faith with the state trooper because he had already provided the information to a city police officer; that the trooper was without authority to enter into any plea bargaining with the defendant; that the defendant twice denied the existence of any plea bargaining agreement when he entered his plea of possession of a firearm charge in federal court; and that there was never any enforceable plea bargaining agreement made because no valid contract was ever consummated.
The facts adduced at the evidentiary hearing upon defendant's plea in bar are important to our resolution of this assignment of error.
In August, 1972, a Big Star Super Market in Cross Lanes, West Virginia, was robbed of over $20,000 by an armed person. In December of 1972, the defendant was arrested on other charges in Cleveland, Ohio. He was returned to West Virginia on December 21, 1972.
On December 26, 1972, defendant gave a written statement to a detective of the Charleston Police Force relating to an important criminal case wherein he answered that he did not "have . . . any personal knowledge of the shooting of Phil Graziana" and that he had not "heard anybody talk about it."
In a second statement given in the early afternoon on January 10, 1973, defendant expressly contradicted his first statement representing, among other things, that a Gene Truslow told him that he, Truslow, had paid $2,500.00 to two named individuals to kill a "snitching lawyer" but that they had been unsuccessful in their efforts.
Meanwhile, on January 5, 1973, the defendant was positively identified in a lineup by two eyewitnesses to the armed robbery, and the following day a warrant was obtained charging him with that crime.
The critical testimony on this issue was elicited from the trooper who testified that even after the lineup went badly for the defendant, he continued to deny involvement in the armed robber but represented that he would provide information and testimony in exchange for leniency. The trooper said that he informed the defendant that there was no way he could make any deals with him at that time and that he would have to speak with the prosecuting attorney and the U. S. attorney and get back to the defendant; that he informed another trooper of the situation who indicated he would talk to the U. S. attorney; that a few days later he learned that the other trooper had not contacted the U. S. attorney so he went to the Kanawha County prosecutor, discussed the matter with him and was at that time authorized to negotiate a deal with defendant; that he couldn't remember whether it was the same day or a week later that he told defendant that everything had been arranged.
The prosecutor testified that he did not authorize any plea bargaining to be conducted by the trooper and the trooper, on cross-examination, admitted that the prosecutor had not expressly approved of giving immunity to the defendant on the armed robbery charge. The detective who took the second statement from the defendant testified that he made no promises to the defendant in return for a statement and *521 that the statements that he took were given to the county prosecutor after the Federal Court trial of the important criminal case.
Our research on this issue reveals absolutely no authority for granting a special plea in bar to further prosecution where neither the trial court nor the public prosecutor approved or authorized the promise of immunity from prosecution.
Every court addressing this issue has held that law enforcement officers do not have authority to promise that in exchange for information, a defendant will not be prosecuted for the commission of a crime and such a promise is unenforceable as being beyond the scope of their authority. Application of Parham, 6 Ariz.App. 191, 431 P.2d 86 (1967); State v. Crow, 367 S.W.2d 601 (Mo.1963); State v. Ashby, 81 N.J.Super. 350, 195 A.2d 635 (1963); 21 Am.Jur.2d Criminal Law § 153 (1965).
Indeed, only a very few states would permit a special plea in bar to prosecution where the public prosecutor himself promises immunity from prosecution, but court approval of such promises is not obtained. See, e. g., Hammers v. State, 261 Ark. 585, 550 S.W.2d 432 (1977) (In Banc).
In Hammers the public prosecutor, without lawful authority,[1] allegedly promised a defendant immunity from prosecution in exchange for giving a statement and testifying against an accomplice. The court held that an accused is entitled on equitable principles to enforcement of the pledge of the public faith made by a prosecutor, notwithstanding the general rule that a state is not estopped by the unauthorized acts of its agents, see, e. g., syl. pts. 4 & 5, Samsell v. State Line Development Co., 154 W.Va. 48, 174 S.E.2d 318 (1970); syl. pt. 6, Cunningham v. County Court, 148 W.Va. 303, 134 S.E.2d 725 (1964), but the burden of proving the plea bargain agreement and compliance with it were expressly placed upon the accused.
Although this Court has held that a plea bargaining agreement may be specifically enforced, Brooks v. Narick, W.Va., 243 S.E.2d 841 (1978), "[s]pecific performance of a plea bargain is an available remedy only when the party seeking it demonstrates that he has relied on the agreement to a detriment and cannot be restored to the position he held before the agreement." Syl. pt. 1, State v. Wayne, W.Va., 245 S.E.2d 838, 841 (1978). The case before us is not the typical case where a defendant either wishes to withdraw a guilty plea or seeks to specifically enforce an agreement allowing him to plead guilty to a specific offense. In this case, the defendant seeks to terminate the prosecution of a crime.
In the instant case, the trial court did not in its order denying the special plea in bar make either findings of fact or conclusions of law, which would enhance the efficacy of appellate review. The trial court may have concluded the defendant's claim lacked merit either on the law or the facts; statements made by the trial court judge indicate, however, his ruling was based on the conclusion that defendant's claim was not supported by law.
We hold, based on the previously-cited authorities, that law enforcement officers do not have authority to promise immunity from prosecution in exchange for information, and such promises are generally[2] unenforceable.
The credible testimony of the state trooper who admittedly made the no-prosecution promise supports the finding that the defendant's second statement implicating other persons, but not himself, in the commission of an extremely serious crime was given or made to a city police officer before the promise was communicated. The record in this case thus supports a finding by *522 the trial court that the defendant did not meet his burden of demonstrating reliance to his detriment on the promise in making the second statement to law enforcement officials.
While it is no doubt true that the defendant provided information to the government, presumably helpful to federal officials prosecuting an important case plead guilty to a federal firearms charge, and supplied information with respect to other crimes, this course of conduct does not necessarily indicate the defendant was acting in reliance on a plea bargain for immunity from state prosecution. In the guilty plea proceeding in federal court on the gun possession charge, the defendant testified that there had been no promises or agreements made which induced him to plead guilty. It is not unreasonable to assume that the defendant in making that statement before the federal court was telling the truth. Furthermore, he may have entered the guilty plea to the federal gun charge based on the advice of counsel and his own assessment of the case that it would be in his best interest to enter a guilty plea.
Similarly, the defendant may have decided that it was in his best interest to cooperate with the local police officials in the hope that he would receive some leniency on the armed robbery charge, particularly given the fact that just a few days before the statement was given the defendant was positively identified by two eyewitnesses as the armed robber.
Affirmed.
NOTES
[1] West Virginia's primary immunity statute, W.Va.Code § 57-5-2 authorizes only the court to grant immunity to a person compelled to testify as to self-incriminating testimony. A claim of immunity based on this statute may be raised by a special plea in bar. Syl. pt. 3, State v. Sine, 91 W.Va. 608, 114 S.E. 150 (1922).
[2] We could envision a situation where a simple, unsophisticated person would, when accused of a crime, perceive the words of a law enforcement officer being spoken as the voice of a unitary state. That is not the case here. | 01-03-2023 | 10-30-2013 |
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