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https://www.courtlistener.com/api/rest/v3/opinions/1316290/ | 996 P.2d 1216 (2000)
C.P. By and Through her next friend, M.L., M.L., individually, and D.B., Plaintiffs,
v.
ALLSTATE INSURANCE COMPANY and Sheryl Norton, Defendants.
Nos. S-8606, 5245.
Supreme Court of Alaska.
March 3, 2000.
Rehearing Denied April 28, 2000.
*1218 Steven Lewis Hempel, Juneau, for Plaintiffs.
Gregory W. Lessmeier, Lessmeier & Winters, Juneau, and Peter J. Valeta and Jeffrey A. Berman, Ross & Hardies, Chicago, Illinois, for Defendants.
Bruce P. Babbitt, Jameson, Babbitt, Stites & Lombard, P.L.L.C., for Amicus Curiae J.D. Glass & Door, Inc.
Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.
OPINION
EASTAUGH, Justice.
I. INTRODUCTION
The adult son of homeowners assaulted a child visiting their home. The child and her parents sued the homeowners, claiming they negligently caused her injuries. Invoking exclusions for intentional and criminal acts, the homeowners' liability insurer refused to defend. The homeowners settled with the claimants and assigned their rights against their insurer, and the child's family then sued the insurer and its adjuster. The United States District Court for the District of Alaska, where that suit is pending, has asked us to answer certified questions of state law: (1) does the insurer's salaried claims adjuster owe tort duties to the insureds; (2) does the insurance policy cover claims that the homeowners negligently failed to do things that would have protected the child; and (3) does a declaration of no coverage affect the insurer's liability under the policy? Applying our existing case law, we answer "yes" to the first question. We also answer "yes" to the second question, because the insurance policy did not unambiguously withhold coverage for claims alleging that the homeowners acted negligently, and that their own conduct, not derivative of their adult son's, was a legal cause of injury. Having found coverage, we do not reach the third question.
II. FACTS AND PROCEEDINGS
Dolan and Eleanor Lancaster were homeowners who resided in their home with their adult son, Harold Lancaster, and Harold's daughter, C.L.[1] C.P., an eleven-year-old friend of C.L., spent the night of November 11, 1995, with C.L. in the Lancaster home. C.P.'s parents did not know that Dolan and Eleanor were out of town that night and that Harold Lancaster was staying at the house. While C.P. was at the Lancasters' home, *1219 Harold Lancaster physically and sexually assaulted her.
Allstate Insurance Company had issued a homeowner's insurance policy to Dolan and Eleanor Lancaster. The policy covered liability for bodily injury "arising from an accident," and required Allstate to defend the insureds against covered claims. It excluded coverage for injury resulting from intentional or criminal acts. It also contained a "joint obligations" clause.
In December 1995 C.P. and her parents sued Harold, Dolan, and Eleanor for personal injury. The complaint alleged that Harold assaulted C.P., causing injury to her. It also alleged that the elder Lancasters were negligent (in failing to disclose Harold's presence or his alleged propensity to assault children and in failing to watch over C.P.), and that "[a]s a direct and proximate result" of the elder Lancasters' negligence, the plaintiffs suffered damages.[2] The claims against the elder Lancasters were based on their alleged negligence, and did not attempt to attribute Harold's acts to them.
The elder Lancasters tendered to Allstate the defense of C.P.'s claims against the elder Lancasters. Allstate assigned Sheryl Norton, a salaried Allstate employee, to investigate C.P.'s claims. Norton in turn consulted attorney Mark Wilkerson. Wilkerson raised doubts about coverage which Norton relayed to her superiors. Allstate then denied coverage and notified all three Lancasters that it would not defend them against C.P.'s claims.
In April 1996 Dolan and Eleanor Lancaster entered into a settlement agreement with C.P. Per the agreement, Dolan and Eleanor confessed judgment to C.P. and agreed that the amount of C.P.'s damages would be arbitrated. Dolan and Eleanor also assigned to C.P. the right to assert the elder Lancasters' claims against Allstate and permitted C.P. to continue to pursue claims against Harold. C.P. agreed not to collect damages from Dolan and Eleanor except as necessary to prosecute the assigned claims. The claims went to arbitration; the Lancasters did not appear and offered no evidence. The arbitrator found Dolan and Eleanor's liability to be $474,330.
C.P. sued Allstate on the elder Lancasters' assignment. After proceedings not relevant here, Chief Judge James K. Singleton of the United States District Court for the District of Alaska issued a certification order asking us to answer three questions of state law. We quote the questions below. Summarized, they concern the potential tort duties of Allstate's adjuster, Allstate's coverage obligations, and the effect of a declaration of no coverage.
We accepted certification of these three questions.[3]
III. DISCUSSION
A. Standard of Review
The certified questions are questions of law. To answer them, we adopt the rule of law that is most persuasive in light of precedent, reason, and policy.[4]
B. Does an Insurer's Salaried Adjuster Owe the Insureds a Tort Duty of Reasonable Care?
The district court first poses this certified question:
Does a salaried employee in the claims department of an insurance company owe *1220 those who are insured by the company a duty enforceable in a tort action against the employee personally to exercise reasonable care in connection with claims by the insureds that are assigned to the employee for investigation, evaluation and adjustment, to avoid interfering with the insureds' rights under the policy of liability insurance to receive a defense and indemnity against tort claims made against them by third-parties?
C.P. argues that Alaska law already recognizes a cause of action against liability insurers' adjusters for negligent adjustment (including investigation and evaluation) of a claim. C.P. relies on two cases Continental Insurance Co. v. Bayless & Roberts, Inc.[5] and Sauer v. Home Indemnity Co.[6] to support her contention. Amicus J.D. Glass & Door, Inc. supports C.P.'s contention.
Allstate contends that an insured's claims for negligent adjustment are contract claims which can only be made against Allstate itself. (Allstate also contends that the settlement agreement permitted C.P. to sue only Allstate, and that the Lancasters' assignment does not cover suits against Norton. We do not consider this contention because it is not part of the certified question.)
The Continental line of cases answers the broad question posed. The Continental Insurance Company discovered midway through its defense of its insured, Bayless & Roberts (B & R), that B & R had changed its story as to the facts of the third-party liability claim being litigated.[7] When Continental refused to defend B & R further, B & R sued it and its claims adjuster, Arthur Stanford.[8]
Stanford held the title of branch manager at the Underwriters Adjusting Company.[9] But we recognized that Underwriters Adjusting was a subsidiary of Continental Corporation and functioned as the claims department of Continental Insurance Company, another subsidiary.[10] We also concluded that Stanford was "Continental's claims adjuster"[11] and that "Continental assigned the adjustment of the ... claim against B & R to Stanford."[12]
B & R's suit against Stanford alleged that "Stanford breached his fiduciary duty in failing to adequately investigate" the claim in question, and in failing to fully inform B & R, Continental, and Continental's attorney of the facts of the case.[13] Stanford contended that "he had no duty to B & R under his contract with Continental that would subject him to personal liability."[14] We concluded that "Stanford could not be held liable for a breach of the fiduciary duty of good faith arising out of the insurance contract, but he could be held liable for negligence arising out of a breach of the general tort duty of ordinary care."[15]
Allstate argues that Continental is "legally and factually inapplicable here" because it concerned a "third party adjuster," not an "employee" of the insurer, and it concerned defense of a claim, not negligent "investigation." But we treated Stanford as though he were the insurer's employee,[16] and the suit dealt directly with Stanford's allegedly negligent investigation.[17]
Allstate alternatively contends that two cases we decided after ContinentalO.K. Lumber Co. v. Providence Washington Insurance Co.[18] and Alaska Pacific Assurance *1221 Co. v. Collins[19] "clearly dictate a finding that the employee is not personally liable." C.P. asserts that Sauer dictates the opposite result.
Both cases Allstate cites are inapposite, and each undercuts Allstate's argument. In O.K. Lumber, Providence Washington insured two companies that caused property damage to O.K. Lumber.[20] When O.K. Lumber sued the two companies, Providence Washington defended them. In one suit, O.K. Lumber recovered a substantial judgment that exceeded what Providence Washington had unsuccessfully offered to pay. In the other, Providence Washington eventually paid O.K. Lumber's entire claim. O.K. Lumber then sued Providence Washington for bad faith.[21] We held that third parties cannot maintain a cause of action against insurers for bad faith: "An insurer could hardly have a fiduciary relationship both with the insured and a claimant because the interests of the two are often conflicting."[22]
O.K. Lumber is distinguishable because Providence Washington's insureds had not assigned their rights to O.K. Lumber. But we recognized there that "[t]he insured's cause of action for breach of the implied covenant is assignable to the injured third party claimant."[23] Because C.P. is the assignee of the insureds' rights against their insurer, she is suing as a first party, not as a third party. O.K. Lumber therefore supports C.P.'s claim.
Collins is also distinguishable, but nonetheless supports C.P.'s claim. The insured there sued his liability insurer for bad faith failure to provide a defense, and the jury found for the insured.[24] Although we reversed the verdict because a jury instruction had erroneously assumed facts not stipulated, we took pains to reaffirm that "it was proper for the superior court to permit [the insured] to sue on the implied covenant of good faith and fair dealing in tort...."[25]
C.P. refers us to Sauer, in which Delores Gross was sued by residents of her trailer park.[26] She notified her liability insurer, Home Indemnity, which retained Larry Larson, an adjuster with Northern Adjusters.[27] Larson investigated and sent a report to Home Indemnity; Home Indemnity then apparently forgot about the claim.[28] Gross eventually filed for bankruptcy, and sued Larson, Northern Adjusters, and Home Indemnity for "negligent failure to investigate, adjust, resolve or defend" her claim.[29]
Summary judgment was entered against Gross. We reversed, noting: "In [Continental] we recognized that an insurance adjuster owes a duty of care to the insured which is independent of any contractual obligation arising out of the insurance policy, and that a breach of this duty is actionable."[30] But we also noted that "there was no motion before the court concerning the adjusters' liability, separate from that of Home Indemnity, and the record does not otherwise demonstrate the adjusters' right to summary judgment...."[31]
Continental, which involved an adjuster whom we treated as a direct employee of the insurer, and Sauer, which involved an independent adjuster, establish that an insurer's adjusters personally owe duties to an insured under a liability policy to adjust (investigate and resolve) claims against the insured. O.K. Lumber and Collins confirm that proposition.
Does it matter that Norton was Allstate's salaried employee? Continental broadly indicates that it does not.
*1222 The certification order suggests that Restatement (Second) of Torts § 766C (1979) might convince us to draw a distinction between salaried employees and independent adjusters. Section 766C bars recovery for nonphysical harm resulting from interference with contract. Because the parties' briefs have not addressed the Restatement issue, we decline to address § 766C here.[32]
Thus, existing Alaska law answers the first question. The answer is "yes": the insurer's salaried insurance adjuster owes the insureds the described duty of care.
C. Does the Insurance Policy Cover Claims that the Homeowners Negligently Failed to Prevent a Child from Being Harmed by Criminal or Intentional Acts?
The second certified question asks:
Does a homeowner's liability insurance policy that provides coverage against "accidental" injuries and excludes coverage for intentional and criminal acts (whether or not prosecuted), treats the acts of one insured as the acts of all insureds, and promises to defend the homeowner against suits for "covered damages" even if the allegations are groundless, false or fraudulent, obligate the insurer to defend and indemnify an insured homeowner who is sued for (1) negligent supervision of an adult son who resides on the premises and allegedly sexually assaulted a young guest of his daughter's (the homeowner's granddaughter) on the insured premises, (2) negligent failure to warn the parents of the injured child that the adult son would be left in charge of the premises during an extended absence by the homeowners, and (3) negligent failure to protect a visitor lawfully on the premises from foreseeable criminal activity, i.e., a sexual assault by a resident?
Well-known principles of insurance contract interpretation govern our analysis. The liability of an insurer is generally determined by the terms of the policy it has issued.[33] Where an insurance company by plain language limits the coverage of its policy, we recognize that restriction.[34] But because an insurance policy is a contract of adhesion, we construe it to give effect to the insured's reasonable expectations.[35] In other words, "[t]he objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations."[36]
Construction of an insurance policy under the principle of reasonable expectations does not depend on a prior determination of policy ambiguity.[37] But where a clause in an insurance policy is ambiguous in the sense that it is reasonably susceptible to more than one interpretation, we accept the interpretation that most favors the insured.[38]
*1223 In order to determine the reasonable expectations of the parties, we look to the language of the disputed policy provisions, the language of other provisions of the insurance policy, relevant extrinsic evidence, and case law interpreting similar provisions.[39] We construe grants of coverage broadly and interpret exclusions narrowly.[40]
1. Coverage for "accident"
The family liability coverage part of Allstate's policy covered "an insured person" against liability claims for "bodily injury ... arising from an accident." It provides: "Subject to the terms, limitations and conditions of this policy, Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an accident and covered by this part of the policy."
This part also imposed defense duties on Allstate: "If an insured person is sued for [covered damages], we will provide a defense ... even if the allegations are groundless, false or fraudulent." Harold, Dolan, and Eleanor Lancaster are "insured persons" under Allstate's policy. There is no dispute about whether C.P. suffered "bodily injury" as the policy defines that term.
Allstate first argues that there is no coverage because C.P.'s damages arise not from an "accident," as that word is used in the liability coverage part, but from Harold's non-accidental acts. Allstate reasons that the elder Lancasters' purported negligence was only "an antecedent contributing circumstance," and "not the proximate cause of the loss." In essence, Allstate reasons that because Harold's conduct caused C.P. to suffer injury, it is irrelevant that his parents' independent conduct also allegedly contributed causally to the loss. C.P. argues that from the elder Lancasters' perspective, "this was an accidental loss," and cites in support the arbitrator's finding to that effect.
The policy does not define "accident."[41] Nor does it specify whether we are to apply the term subjectively from the perspective of either the insured claiming coverage or the victim or objectively.[42] Absent contract language clearly specifying an objective perspective, our practice of enforcing the insured's reasonable expectations requires us to determine whether the loss was the result of an accident from the perspective of the insureds claiming coverage.
From the standpoint of the elder Lancasters, it is not unreasonable that their interpretation of the policy focuses on the acts C.P. attributed to them, as distinct from the acts she attributes to Harold. They were sued for their conduct, not Harold's. C.P. did not attempt to make them vicariously liable for Harold's acts. Rather, her complaint alleged that the elder Lancasters' negligence legally caused injury to her. To prevail against them on that theory, C.P. had to prove that her injuries resulted from their negligence, i.e., from unintended or unexpected *1224 consequences of their conduct, regardless of whether there was more than one cause of her injuries.[43] Thus, their liability was effectively contingent on proof that an "accident" was a cause of harm to C.P.
Allstate's argument that the Lancasters' negligence was only "a" cause and not "the proximate cause" of C.P.'s injuries is unavailing. The policy covers claims for injury "arising from an accident." That language does not incorporate any requirement that an accident have been "the proximate cause." Nor does it foreclose coverage if an accident was only "a" cause. The language "arising from" is consistent with multiple causes. It is also consistent with our case law that recognizes in a tort context that a claimant need only prove that a breach of duty is "a" proximate cause of harm, not "the" proximate cause.[44]
Only a few cases appear to have dealt with this precise issue and identical policy language.[45] In Allstate Insurance Co. v. Worthington,[46] the Tenth Circuit, applying Utah law, found coverage where a man took hostages at a hospital and fatally wounded a nurse. The man's ex-wife (Brown) was sued for negligently entrusting weapons to him and failing to warn the victims.[47]Worthington reasoned that neither the policy's intentional and criminal act exclusions nor its joint obligations clause barred coverage for the negligence claims against Brown.[48] Further, the court held that the allegations against her constituted an "accident" under the policy's terms, even if her ex-husband's acts were intentional.[49]
The Eighth Circuit reached the opposite conclusion in Allstate Insurance Co. v. Steele.[50] In that case, a sixteen-year-old boy raped his twelve-year-old stepsister while she was visiting her father and stepmother.[51] The victim's mother asserted a negligent supervision claim against the father and stepmother.[52] The court, applying Minnesota law, reasoned that under the insurance policy's exclusions and joint obligations clause, one insured's intentional act barred coverage for claims against other insureds for negligent supervision.[53] Further, the court found that the stepbrother's intentional and criminal sexual conduct was not an "accident" within coverage provisions of the policy.[54]
Allstate argues that Worthington is unpersuasive, and, moreover, is now contrary to Utah law.[55] We nonetheless find its reasoning more persuasive and more consistent with the principles that govern insurance coverage disputes in Alaska.
Reading the liability coverage language in isolation, we consequently reject Allstate's "accident" argument and hold that C.P.'s claims against the elder Lancasters were within the liability coverage part.
2. The exclusions and the joint obligations clause
The coverage language was potentially subject to other relevant policy provisions: the criminal and intentional act exclusions and the joint obligations clause. The intentional act exclusion excluded coverage for bodily injury "resulting from ... an act or omission intended or expected to cause bodily *1225 injury."[56] The criminal act exclusion excluded coverage for bodily injury "resulting from ... a criminal act or omission."[57] The joint obligations clause is found in the policy's "insuring agreement." The joint obligations clause provides: "The terms of this policy impose joint obligations on persons defined as an insured person. This means that the responsibilities, acts and failures to act of a person defined as an insured person will be binding upon another person defined as an insured person."
Allstate argues that both exclusions apply because C.P.'s injuries resulted from Harold's intentional and criminal acts. Further, it argues that the joint obligations clause attributes the conduct of one insured person Harold to the other insured persons the elder Lancasters, thus confirming that the exclusions apply to the claims against Dolan and Eleanor. It consequently does not matter to Allstate that only Harold's conduct was intentional or criminal and that the elder Lancasters' unintentional and noncriminal acts may also have been a causal factor in C.P.'s injuries.
C.P. does not deny that she was injured as a result of Harold's intentional or criminal acts. But she contends that the Lancasters' negligence also caused her injuries, and that their negligence should be treated independently for purposes of determining coverage. Her claims against the elder Lancasters allege their direct liability and are based on her theory that they negligently breached duties they owed to her. Her claims do not attempt to make the elder Lancasters vicariously liable for Harold's intentional and criminal actions. According to her, the relevant question is "what coverage does the policy provide, or possibly provide, for losses resulting from a combination of both covered and excluded causes?" She asserts that the policy does not unambiguously exclude her claims because the exclusions do not explicitly exclude coverage for a claim "which results partly or entirely from an excluded cause, regardless of the cause, causes, or combination of causes of the loss."
The district court correctly noted that there is "[p]ersuasive but conflicting authority" in other jurisdictions regarding the effect of such policy language in context of injuries allegedly caused by both negligent acts and intentional or criminal acts. It also correctly noted that we have considered the effect of "multiple causation" in cases resolving insurance disputes, but not in a case involving a joint obligations clause. Finally, the court recognized that Allstate's policy contains no "severability of interest" clause that would clearly limit the effect of an exclusion to the person claiming coverage.[58]
Allstate refers us to cases applying similar policy language and holding that innocent insureds are not covered in comparable circumstances.[59] C.P. seeks to distinguish these cases. Some of these cases cannot be distinguished; they involve policy terms that are substantially identical to the terms of Allstate's policy here.[60]
Our analysis here focuses on the policy's language and our case law. The district *1226 court has not referred us to any extrinsic evidence relevant to the contracting parties' expectations.
The exclusions do not resolve the question presented here: is there coverage for a loss claimed to have resulted from a combination of covered and uncovered conduct? Instead, they specify the types of injury to be excluded: injury resulting from criminal or intentional conduct.[61] In doing so, they do not expressly exclude injury caused in part by both unintentional or noncriminal conduct. The terms can be interpreted broadly to exclude the resulting harm even if negligence was a contributing cause, or they can be read narrowly to apply only to injuries caused solely by intentional or criminal conduct. We must interpret exclusions narrowly.[62] And our discussion above concerning coverage for an "accident" applies equally here. From the perspective of insureds whose acts are alleged to have negligently, but not criminally or intentionally, been a cause of a claimant's injury, these exclusions do not apply to the negligence claims against them. Likewise, with respect to C.P., the elder Lancasters' alleged conduct was allegedly negligent, and therefore neither intentional nor criminal. It thus triggered neither exclusion.
The broad exclusionary reading Allstate urges is permissible. But we conclude that reading the exclusions narrowly is more consistent with the insureds' reasonable expectations that they will be covered against claims that they negligently caused injury.
Worthington, which interpreted identical policy language, supports this conclusion. The court there declined Allstate's invitation to focus only on the intentional act or "underlying cause" of the complainant's injury.[63] Instead, the court focused on the actual allegations of negligence against the nonacting insured and reasoned that this negligence constituted an "accident" under the policy terms and that the policy's intentional act exclusion was inapplicable to these claims.[64]
We next consider the effect of Allstate's joint obligations clause. We assume for discussion's sake that Allstate is correct in asserting that this clause has the effect of attributing Harold's intentional and criminal conduct to the elder Lancasters.[65] But, for two reasons, this attribution does not resolve the issue of whether the exclusions apply to the negligence claims against the elder Lancasters. First, it is not clear how the joint obligations clause even bears on the exclusionary language critical here. The pertinent language of the intentional act exclusion, Exclusion 1.a),[66] seems to apply without regard to who has acted intentionally. In comparison, Exclusion 1.b)[67] applies only to acts of "an insured person." If it does not matter for purposes of Exclusion 1.a) whether an insured person was the intentional actor, the joint obligations clause, which attributes Harold's acts to the elder Lancasters, is not relevant to Exclusion 1.a) either. That means that the exclusion must be interpreted without reference to the joint obligations clause.
Second, if the joint obligations clause does apply to this exclusion, it does not resolve the multiple-cause problem discussed above. Attributing Harold's alleged conduct to the elder Lancasters still leaves open the possibility that the injury was the result of both intentional and negligent acts. Allstate had to *1227 take the complaint's allegations as true, and had to assume that the elder Lancasters' negligent acts or omissions were at least a contributing cause of C.P.'s injuries. Simply attributing Harold's intentional conduct to the elder Lancasters does not clearly and unambiguously withdraw coverage for C.P.'s claim that the elder Lancasters' negligent, unintentional conduct injured her.
A similar analysis applies to the pertinent criminal act exclusion, Exclusion 2.a). Again, the joint obligations clause does not clearly apply to this exclusion because it is not unambiguously limited to the acts of insured persons.[68] And again, the joint obligations clause does not deal unambiguously with multiple causes of injury.
We conclude that the attribution is irrelevant to either exclusion where the claims against the insureds who claim coverage are based on their negligent, unintentional, noncriminal conduct.
A provision in a different part of Allstate's policy supports our conclusion that the joint obligations clause does not unambiguously resolve the problem of multiple causation. The property loss coverage part contains this exclusion:
We do not cover loss to the property ... resulting in any manner from:
....
7. One or more of the items listed below, if that item is one of two or more causes of a loss and if the other causes(s) of the loss is (are) excluded by this policy:
a) Conduct, act, failure to act, or decision of any person, group, organization or governmental body whether intentional, wrongful, negligent or without fault.
This exclusion makes it clear that there is no coverage for property losses in cases of multiple causes where all of the causes are excluded under the policy. Moreover, this clause defines one class of excluded losses in terms of a cause, which, even though it could be covered if it acted alone, is excluded because it combines with a cause of loss expressly excluded by the policy. This clause therefore has the effect of excluding losses in multi-cause situations. This clause demonstrates that Allstate knew how to address this multi-cause problem when it wanted to. No equivalent provision is to be found in Allstate's liability coverage. The joint obligations clause does not address this issue.
The property coverage part provides a second interesting comparison. It covers a "direct loss" caused by some events which are otherwise excluded.[69] The policy defines "direct loss" to include a loss caused by a named peril if it "is the last in time to occur when the loss is caused by more than one peril." This definition again demonstrates that Allstate knew how to deal with losses with multiple causes, in this example by using a last-in-time approach.
We have held that the presence of a multi-cause exclusion is significant.[70] In State Farm Fire & Casualty Co. v. Bongen,[71] we held that a multi-cause exclusion was not ambiguous and that "an insurer may expressly preclude coverage when damage to an insured's property is caused by both a covered and an excluded risk."[72] The clause in Bongen expressly and unambiguously resolved the problem presented by a loss that was caused in part by both a covered cause and an excluded cause.[73]
*1228 The Lancasters' policy contains no equivalent clause in its liability coverage part. Its use of analogous clauses in the property loss coverage part demonstrates that Allstate knew how to phrase an exclusion unambiguously when it wished to address multiple causes. An insured familiar with the entire policy could reasonably conclude from the absence of a similar clause in the liability coverage part that Allstate was not attempting to exclude multiple causes with respect to the intentional and criminal act liability exclusions.
Both sides discuss the efficient proximate cause doctrine in passing. Allstate argues that we have never adopted the doctrine in Alaska and that, in any event, it must yield to unambiguous policy provisions. It also argues that Harold's conduct, not that of the elder Lancasters, was the efficient cause of the loss. In Bongen we considered the "efficient proximate cause" rule, which we described as follows:
"[W]hen a loss is sustained by a sequence or concurrence of at least two causes, one covered under [an insurance] policy and the other excluded under the policy, the cause setting the chain of events in motion is the cause to which the loss is attributed...." Other courts have defined efficient proximate cause to mean the predominant cause, rather than the cause which is first in time.[74]
We decided "to recognize the efficient proximate cause rule only when the parties have not chosen freely to contract out of it."[75] We held there that the unambiguous policy terms excluded the loss.[76] Justice Matthews, dissenting, stated that "it seems correct to conclude that we have impliedly accepted the efficient proximate cause doctrine. Moreover, as noted, the efficient proximate cause doctrine is widely accepted among American jurisdictions. There is no reason not to accept it in Alaska."[77]
Allstate and the Lancasters did not contract out of the efficient proximate cause rule, but that does not mean that it applies here in order to defeat coverage. The doctrine is a court-made rule applied to preserve insureds' reasonable expectations.[78] If a policy is ambiguous because it can be interpreted reasonably both to cover and not to cover particular losses, there is no reason to invoke the efficient proximate cause rule because the ambiguous policy terms must be interpreted in favor of coverage. Perhaps the rule would apply if the claimant has asserted that the insured seeking coverage has acted both intentionally and negligently. Consider, for example, an insured homeowner who unjustifiably points a loaded pistol at a visitor, who then flees in fright and is injured when he falls on the homeowner's negligently maintained icy steps. What is the predominant cause of the injury, the criminal assault or the negligent maintenance? But C.P.'s complaint does not claim that the elder Lancasters' acts were both negligent and intentional or criminal. And Allstate does not suggest that they knew Harold had any propensity to assault children and that their conduct was in fact intentional.[79] Accordingly, *1229 we see no reason to apply the efficient proximate cause rule here.[80]
We conclude from the language of the entire policy that Allstate did not clearly and unambiguously exclude coverage for the claims that the elder Lancasters negligently contributed to C.P.'s injuries. We therefore hold that Allstate's policy covered C.P.'s claims against the elder Lancasters.
D. What Is the Effect of a Declaration of Coverage or Non-Coverage?
Finally, the district court asks:
Where an insurer obtains a declaratory judgment against the insured determining that the policy of insurance does not cover a liability asserted against the insured in a personal injury action, does this judgment terminate the insurer's duty to defend the insured in the personal injury action both retroactively and prospectively? In other words, does the duty to defend survive a judicial determination that the underlying claim was not within the terms of the policy, and if not, does the successful assertion of a coverage defense in the declaratory judgment action eliminate any liability for failing to provide a defense while the issue of coverage was being determined? If the duty to defend does survive a determination that there was no duty to indemnify, or if a successful insurer is still liable for failing to provide a defense during the interim while the issue of coverage was undecided, what is the measure of damages for breach of the duty to defend in such a case?
This question perceptively raises intriguing issues about the effect of a successful coverage defense, and the procedural implications of parallel lawsuits litigating personal injury and declaratory relief coverage disputes.[81] But these issues are moot because our answer to the second question establishes that Allstate's policy covered C.P.'s claims against the elder Lancasters. That necessarily means that Allstate materially breached its contractual duties by failing to defend the elder Lancasters against C.P.'s claims and by anticipatorily denying a duty to indemnify them. Our reported cases thoroughly discuss the legal effects of a liability insurer's material breach of duties it owes its insureds.[82] We therefore need not answer the third certified question.
IV. CONCLUSION
We therefore answer "yes" to Questions One and Two. We decline to answer Question Three, because it is mooted by our answer to Question Two.
NOTES
[1] We rely here on the federal court's fact statements and the excerpt. We make no independent fact determinations.
[2] The certification order characterizes the claims against the elder Lancasters as claims for "negligent failure to warn and negligent failure to provide a safe environment on the insured premises." The second certified question describes the suit as one for negligent supervision of the adult son, negligent failure to warn C.P.'s parents, and negligent failure to protect a visitor. The federal court's characterization of the claims is not critical to our analysis.
[3] Alaska Rule of Appellate Procedure 407(a) provides:
The supreme court may answer questions of law certified to it by the Supreme Court of the United States, a court of appeals of the United States, [or] a United States district court ... when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state.
[4] See City of Fairbanks v. Amoco Chem. Co., 952 P.2d 1173, 1176 (Alaska 1998) (concerning certified questions); D.D. v. Insurance Co. of N. Am., 905 P.2d 1365, 1367 n. 3 (Alaska 1995) (same).
[5] 608 P.2d 281 (Alaska 1980).
[6] 841 P.2d 176 (Alaska 1992).
[7] See Continental, 608 P.2d at 284-85.
[8] See id. at 285-86.
[9] See id. at 287.
[10] See id.
[11] Id. at 285.
[12] Id. at 287.
[13] Id. at 286 (emphasis added).
[14] Id. at 287.
[15] Id. We also noted that "[t]his conclusion is consistent with our decision in Austin v. Fulton Insurance Co., 498 P.2d 702 (Alaska 1972)." Id. at 287-88.
[16] See id. at 285-87.
[17] See id. at 286.
[18] 759 P.2d 523 (Alaska 1988).
[19] 794 P.2d 936 (Alaska 1990).
[20] See O.K. Lumber, 759 P.2d at 524-25.
[21] See id. at 525.
[22] Id. at 526.
[23] Id. at 525.
[24] See Collins, 794 P.2d at 940.
[25] Id. at 947.
[26] See Sauer, 841 P.2d at 178.
[27] See id. at 179.
[28] See id. at 179-80.
[29] Id. at 180.
[30] Id. at 184.
[31] Id.
[32] We note that we have rejected the distinction between physical and economic losses which seems to underlie § 766C. See Mattingly v. Sheldon Jackson College, 743 P.2d 356, 360 (Alaska 1987). And although we have not previously discussed § 766C, we have declared that agents can be held personally liable for their independent tortious acts. See Griffith v. Taylor, 937 P.2d 297, 308 (Alaska 1997) (holding attorney potentially liable for independent torts committed while working for firm); Barber v. National Bank of Alaska, 815 P.2d 857, 861-63 (Alaska 1991) (holding mortgage collection employee potentially liable for negligence and misrepresentation committed while working for bank).
[33] See Jones v. Horace Mann Ins. Co., 937 P.2d 1360, 1362 n. 3 (Alaska 1997).
[34] See Insurance Co. of N. Am. v. State Farm Mut. Auto. Ins. Co., 663 P.2d 953, 955 (Alaska 1983). See also AS 21.42.230 (providing "[e]ach insurance contract shall be construed according to the entirety of its terms and conditions as set out in the policy and as amplified, extended, or modified by a rider, endorsement, or application that is a part of the policy").
[35] See Jones, 937 P.2d at 1362 n. 3 (quoting Bering Strait Sch. Dist. v. RLI Ins. Co., 873 P.2d 1292, 1294-95 (Alaska 1994)).
[36] Bering Strait Sch. Dist., 873 P.2d at 1295 (quoting Robert Keeton, Basic Text on Insurance Law § 6.3(a), at 351 (1971)).
[37] See Stordahl v. Government Employees Ins. Co., 564 P.2d 63, 66 (Alaska 1977).
[38] See Starry v. Horace Mann Ins. Co., 649 P.2d 937, 939 (Alaska 1982). An ambiguity does not exist, however, merely because the parties disagree as to the interpretation of a term. An ambiguity exists only where the contract as a whole and all the extrinsic evidence support two different interpretations, both of which are reasonable. See Modern Constr., Inc. v. Barce, Inc., 556 P.2d 528, 529 (Alaska 1976).
[39] See Stordahl, 564 P.2d at 66.
[40] See Hahn v. Alaska Title Guar. Co., 557 P.2d 143, 145 (Alaska 1976); Starry, 649 P.2d at 939.
[41] In ordinary usage, "accident" is commonly defined to mean
"[a]n unexpected and undesirable event...." Webster's II New Riverside University Dictionary 71 (1994). Black's Law Dictionary states: "An accident within accident insurance policies is an event happening without any human agency, or, if happening through such agency, an event which, under circumstances, is unusual and not expected by the person to whom it happens." Black's Law Dictionary 15 (6th ed.1990). A leading insurance encyclopedia states, "an accident is a distinctive event that is unforeseen and unintended, which takes place at a date which can be fixed with reasonable certainty." 9 Couch on Insurance § 126:26 (3d ed.1999) (citations omitted). In Alaska we have adopted a broad definition of accident based on "the reasonable understanding or expectations of the average person: if in common parlance an `accidental result' is an `accident,' the accidental results should be covered." INA Life Ins. Co. v. Brundin, 533 P.2d 236, 240 (Alaska 1975).
[42] One encyclopedia states: "Most courts employ an objective standard to determine whether injury was intentional. In accordance with this view, an act of sexual abuse is regarded as intentional where injury is the natural and probable consequence of the insured's actions." 9 Couch on Insurance § 127:26. But other courts apply a subjective standard. See id. (citing cases utilizing subjective standard). See also Black's Law Dictionary, at 15, defining "accident."
[43] See 9 Couch on Insurance § 126:27.
[44] See, e.g., Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 445 (Alaska 1989); Bakke v. State, 744 P.2d 655, 656 (Alaska 1987).
[45] Allstate refers us to Allstate Insurance Co. v. Roelfs, 698 F. Supp. 815 (D.Alaska 1987). Applying Alaska law, the court there held that the intentional injury caused by one insured bars coverage for claims of negligence against other insureds. See id. at 822. But the policy language in Roelfs differs from the Lancasters' policy language. Roelfs therefore does not assist our analysis of the present policy.
[46] F.3d 1005, 1012-13 (10th Cir.1995).
[47] See id. at 1007.
[48] See id. at 1010.
[49] Id.
[50] 74 F.3d 878 (8th Cir.1996).
[51] See id. at 880.
[52] See id.
[53] See id. at 881.
[54] Id. at 880.
[55] See State Farm Fire & Cas. Co. v. Geary, 869 P.2d 952, 954 (Utah App.1994).
[56] Exclusion 1 addresses intentional acts. It provides in pertinent part:
We do not cover bodily injury or property damage resulting from:
a) an act or omission intended or expected to cause bodily injury or property damage. This exclusion applies even if the bodily injury or property damage is of a different kind or degree, or is sustained by a different person or property, than intended or expected; or
b) an act or omission committed by an insured person while insane or while lacking the mental capacity to control his or her conduct....
[57] Exclusion 2 addresses criminal acts. It provides in pertinent part:
We do not cover bodily injury or property damage resulting from:
a) a criminal act or omission; or
b) an act or omission which is criminal in nature and committed by an insured person who lacked the mental capacity to appreciate the criminal nature or wrongfulness of the act or omission....
[58] Cf. State v. Underwriters at Lloyds, London, 755 P.2d 396, 399-400 (Alaska 1988); Marwell Constr., Inc. v. Underwriters at Lloyd's, London, 465 P.2d 298, 305 (Alaska 1970).
[59] See, e.g., Steele, 74 F.3d at 880-81; Castro v. Allstate Ins. Co., 855 F. Supp. 1152, 1154 (S.D.Cal.1994).
[60] See Steele, 74 F.3d at 880-81; Castro, 855 F.Supp. at 1154-55.
[61] In Hale v. Fireman's Fund Insurance Co., 731 P.2d 577, 579 (Alaska 1987), we discussed an exclusion denying coverage for bodily injury "arising out of the ownership, maintenance, operation, use, loading or unloading of (1) any automobile ... owned or operated by ... any insured." We held there that the policy contained the exclusion to preclude coverage for the exact type of loss involved in that case. See id. at 581. But that case did not involve multiple alleged causes. See id.
[62] See State v. Arbuckle, 941 P.2d 181, 184 n. 3 (Alaska 1997); Whispering Creek Condominium Owner Ass'n v. Alaska Nat'l Ins. Co., 774 P.2d 176, 178 (Alaska 1989).
[63] Worthington, 46 F.3d at 1010.
[64] Id.
[65] But cf. id. at 1009 (finding that identical "joint obligations clause" refers only to affirmative duties to make payments and pay premiums).
[66] See supra note 56.
[67] See supra note 56.
[68] The text of Exclusion 2.a) itself does not require that the criminal act have been committed by an insured person. Although Exclusion 2 is subject generally to a caveat that it applies regardless of whether "the insured person is actually charged with, or convicted of, a crime," that general caveat may be intended to apply only when it is an insured person who acts criminally. If so, when a person who is not an insured acts, there must be a conviction. We conclude that the joint obligations clause does not unambiguously cause this exclusion to deny coverage for negligent contributing causes.
[69] See, e.g., Section I Coverage A Exclusion 1, which contains an exception providing: "[w]e do cover direct loss caused by fire explosion or theft resulting from water damage."
[70] See State Farm Fire & Cas. Co. v. Bongen, 925 P.2d 1042 (Alaska 1996).
[71] 925 P.2d 1042 (Alaska 1996).
[72] Id. at 1045.
[73] See id. at 1043. The clause read in pertinent part:
We do not insure under any coverage for any loss which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of: (a) the cause of the excluded event; or (b) other causes of the loss; or (c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss; or (d) whether the event occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combination of [the following].
Id.
[74] Id. at 1043 n. 1 (quoting Schroeder v. State Farm Fire & Cas. Co., 770 F. Supp. 558, 561 (D.Nev.1991)).
[75] Id. at 1045 (quoting Alf v. State Farm Fire & Cas. Co., 850 P.2d 1272, 1277 (Utah 1993)).
[76] See id.
[77] Id. at 1049 (Matthews, J., dissenting).
[78] See id. at 1052 (Matthews, J., dissenting); Garvey v. State Farm Fire & Cas. Co., 48 Cal. 3d 395, 257 Cal. Rptr. 292, 770 P.2d 704, 710-11 (1989); Kish v. Insurance Co. of N. Am., 125 Wash.2d 164, 883 P.2d 308, 312 (1994). See also 2 Eric Mills Holmes, Holmes's Appleman on Insurance 2d § 6.2 (1996).
[79] Cf. Worthington, 46 F.3d at 1009-10. Construing the evidence most favorably to C.P., the district court stated in its certification order that the elder Lancasters knew Harold was an alcoholic, "but they had no specific advance notice that Harold might sexually molest a child."
[80] Cf. Mutual of Enumclaw v. Wilcox, 123 Idaho 4, 843 P.2d 154, 159 (1992) (finding injuries caused by molestation, not negligent failure to supervise).
[81] One significant question is the effect of a final judgment of liability resulting from breach of the defense duty notwithstanding a subsequent declaration that the policy did not cover the claim. See Amato v. Mercury Cas. Co., 53 Cal. App. 4th 825, 61 Cal. Rptr. 2d 909, 914 (1997) (finding that insurer who wrongfully refuses to defend must pay full default judgment even if claim was not covered by policy); cf. Grace v. Insurance Co. of N. Am., 944 P.2d 460, 468 (Alaska 1997) (finding that insurer had no duty to defend but that evidence that insurer had taken position that it had no duty to indemnify until limits of insured's underlying policies were actually paid created fact issue as to whether insurer anticipatorily repudiated policy).
C.P. argues that the arbitration award conclusively established the issues of negligence, causation, and damages, and binds Allstate. The district court did not certify this issue to us, and we need not reach it in answering the first two certified questions.
[82] See, e.g., CHI of Alaska v. Employers Reinsurance, 844 P.2d 1113, 1115-16 (Alaska 1993); Sauer, 841 P.2d at 181-84; Klondike Indus. Corp. v. Gibson, 741 P.2d 1161, 1167 (Alaska 1987). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316334/ | 149 Ga. App. 173 (1979)
253 S.E.2d 846
GAY
v.
GAY; and vice versa.
56658, 56659.
Court of Appeals of Georgia.
Argued October 3, 1978.
Decided February 28, 1979.
*176 Kneller & Sanders, Scott D. Sanders, James T. Barfield, III, for appellant.
L. Rosser Shelton, James T. Barfield, III, for appellee.
Lucy S. McGough, amicus curiae.
BANKE, Judge.
This is a child custody case on appeal from juvenile court. The litigation was initiated in superior court as a divorce proceeding, and the issue of custody was transferred to juvenile court for investigation and determination pursuant to Code Ann. § 24A-302 (b). By agreement of the parents, the juvenile court originally placed custody in the Fulton County Department of Family & Children Services for a period of two years, during which period the child lived with the maternal grandmother. At the end of that time, a new hearing was held on the question of permanent custody. Although two caseworkers from the Department of Family & Children Services recommended at that hearing that custody be placed in the mother, the trial court concluded as a matter of fact that the mother had an "unnatural" relationship with another woman and for this reason alone declined to follow the department's recommendation. Instead, permanent custody was awarded to the department with direction that the child not be placed with the mother. Since then, the child has lived in foster homes.
The only evidence presented to support the trial court's finding that the mother was presently engaged in an "unnatural" relationship with another woman was hearsay testimony from the father and the maternal grandmother, both of whom wanted custody of the child. The mother denied that such a relationship existed.
The main appeal to this court is brought by the *174 mother. The father cross appeals, contending that he should have been given custody. Held:
1. Although he did not raise the argument below, appointed counsel for the child has filed a brief in which he contends that the juvenile court had no further jurisdiction over the custody issue after issuing its original order placing temporary custody in the Department of Family & Children Services for a 2-year period. In support of this position, he cites cases holding that a superior court cannot retain continuing jurisdiction over the question of custody once a final decree of divorce has been entered. See, e.g., Taylor v. Taylor, 231 Ga. 742 (204 SE2d 129) (1974); Buck v. Buck, 238 Ga. 540 (233 SE2d 792) (1977); Banister v. Banister, 240 Ga. 513 (241 SE2d 247) (1978). These cases do not restrict the authority of the juvenile court to enter a temporary custody order when a case is referred to it by the superior court. The juvenile court's jurisdiction in such cases is set forth in Code Ann. § 24A-302 (b) (Ga. L. 1974, pp. 1126, 1127) which provides: "If the referral is for investigation and determination, then the juvenile court then [sic] shall proceed to handle the matter in the same manner as though the action originated under this [Juvenile] Code, in compliance with the order of the superior court."
2. Contrary to the contention of the main appellant, this is not a termination-of-parental-rights case. It is a child custody case in which custody was granted to a third party on the basis of the purported unfitness of both the natural parents. The trial court did not attempt to terminate the parental rights of the parties. See generally Cothran v. Cothran, 237 Ga. 487 (228 SE2d 872) (1976).
3. "The law contemplates that one of the natural parents will be awarded custody of the child unless the present unfitness of the parents is established by clear and convincing evidence at the hearing on permanent custody. Only then is the trial court authorized to consider an award of custody to third parties." Childs v. Childs, 237 Ga. 177, 178 (227 SE2d 49) (1976). (Emphasis supplied.)
The trial court made an express finding that the father was "physically and emotionally" unfit to have custody of the child. This finding was supported by *175 evidence that he had fathered five other children, all illegitimate, and that his only source of income was social security disability payments. The inadequacy of this resource is demonstrated by the fact that he has filed an affidavit of poverty in order to pursue his cross appeal. While we do not mean to intimate that impecuniousness alone can render a parent unfit to have custody of his or her children, it does appear profoundly irresponsible to generate five illegitimate offspring without the ability to provide for them.
In contrast, the trial court made no express finding that the mother was unfit. She was shown to be gainfully employed in a stable job as a laboratory technician at Emory University, and her fitness as a parent was strongly endorsed by the Department of Family & Children Services caseworkers, both of whom recommended that she be granted custody of the child. The trial court's decision not to follow this recommendation was based solely on his conclusion that the mother was engaged in a homosexual relationship with another woman who dominated her emotionally and who had mistreated the child. However, there was no competent evidence introduced at the hearing to show that this was presently the case. The father testified that he had witnessed some homosexual activity prior to the first juvenile court hearing, two years earlier, but stated that he had not witnessed any such conduct since then. Thus, the only support for the trial court's finding that a homosexual relationship continued to exist was hearsay.
There being no competent evidence in the record to support a finding of the mother's present unfitness to care for the child, the order of the trial court granting permanent custody to the Department of Family & Children Services is reversed with direction that a new order be entered awarding custody to the mother. See Childs v. Childs, 237 Ga. 177, supra.
Judgment affirmed in part and reversed with direction in part. Quillian, P. J., Webb, P. J., Smith, Shulman, Birdsong and Underwood, JJ., concur. McMurray, J., concurs in judgment only. Deen, C. J., dissents.
DEEN, Chief Judge, dissenting.
Does an "unnatural" consenting relationship with another woman possibly amounting to sodomy render a mother unfit? Do five freely made acts of generating illegitimate offspring possibly amounting to fornication and adultery render a father unfit? Both issues involve considerations of mixed questions of law and theology.
Some religions affirmatively advocate the permissiveness of these acts made between consenting persons freely choosing, cherishing, prizing and affirming their lifestyles, Spillers v. State, 145 Ga. App. 809, 810 (245 SE2d 54) (1978), while other religions advocate certain action or absolutes, including these acts as always wrong. Our Georgia criminal laws are based on the latter.
"Q. Have you ever seen Linda and Sabrina in bed together or having abnormal sexual relations or anything?" A. Yes sir. I have."
I interpret this testimony by the husband as other than hearsay. It is not our duty to weigh the evidence on appeal and substitute our judgment for that of the trial court. I would affirm the order and judgment of the trial court under the any evidence rule and therefore respectfully dissent as to Division 3 of the majority opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3069276/ | Court of Appeals
Sixth Appellate District of Texas
JUDGMENT
Travis Shane Brown, Appellant Appeal from the Criminal District Court
No. 3 of Dallas County, Texas (Tr. Ct. No.
No. 06-14-00233-CR v. F-1418343-J). Opinion delivered by Justice
Burgess, Chief Justice Morriss and Justice
The State of Texas, Appellee Moseley participating.
As stated in the Court’s opinion of this date, we find no error in the judgment of the court
below. We affirm the judgment of the trial court.
We note that the appellant, Travis Shane Brown, has adequately indicated his inability to
pay costs of appeal. Therefore, we waive payment of costs.
RENDERED APRIL 21, 2015
BY ORDER OF THE COURT
JOSH R. MORRISS, III
CHIEF JUSTICE
ATTEST:
Debra K. Autrey, Clerk | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3171230/ | IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
October 27, 2015 Session
MATTHEW B. FOLEY v. STATE OF TENNESSEE
Appeal from the Circuit Court for Rutherford County
No. F-52128 David M. Bragg, Judge
No. M2015-00311-CCA-R3-PC – January 20, 2016
The Petitioner, Matthew B. Foley, appeals as of right from the Rutherford County Circuit
Court‘s summary dismissal of his petition for post-conviction relief as untimely. He
asserts that the statute of limitations should be tolled because he did not learn until well
after its expiration that the State sought to enforce the provisions of the sexual offender
registration act against him contrary to the terms of his plea agreement. Following our
review, we reverse the judgment of the post-conviction court and remand the case for an
evidentiary hearing.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Reversed; Case Remanded
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.
Wesley B. Clark, Smyrna, Tennessee, for the appellant, Matthew B. Foley.
Herbert H. Slatery III, Attorney General and Reporter, and Sophia S. Lee, Senior
Counsel, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
After being charged with conspiracy to commit rape and aggravated kidnapping,
the sixteen-year-old Petitioner entered a guilty plea to facilitation of especially
aggravated kidnapping, a Class B felony, on February 28, 2002. See Tenn. Code Ann. §§
39-11-403, -13-305. At the guilty plea submission hearing, the prosecutor summarized
the factual basis for the Petitioner‘s plea:
And it‘s based on conduct occurring on October the 27th of 2001.
And generally what the proof would show is that [the Petitioner] and an
adult, who is currently under indictment in this court for aggravated rape
and aggravated kidnapping—that they were riding around. That they
observed a 13 year-old girl that they did not know at the movie theater at
Stones River. That they essentially grabbed this girl, drove her around
Murfreesboro. They ended up at . . . Nice‘s Mill Dam where the adult took
her out of the car and into the woods, and ultimately raped her. During the
course of the rape, she suffered . . . some type of vaginal tear, which
elevated it from rape to aggravated rape.
There is also in her [preliminary hearing] testimony the mention of a
knife. . . .
. . . [S]he answered, after the older guy got in the car, he told me to
crawl in the front seat. This is before the rape. I saw him pull a knife out a
little. . . .
According to the prosecutor, the victim further testified that she then saw the older man,
John Rowe, place the knife underneath his shirt.
The prosecutor explained the relevance of the knife, ―I don‘t believe that he
necessarily pulled that knife on her during the rape. But it plays into this case. She was
aware that he had it. And it‘s going to play, ultimately, into the plea that [the Petitioner]
is about to enter.‖ The prosecutor continued,
. . . [I]n light of the fact that he is 16 years old and has no significant prior
record, balanced against the obvious seriousness of this crime, . . . he is
pleading guilty to an information charging him with facilitation of the Class
A Felony of especially aggravated kidnapping, . . . meaning that there was
both false imprisonment and the display or use of a weapon . . .
fashioned—or some article fashioned to be like a weapon.
-2-
The prosecutor recommended a sentence of eight years, as Range I, standard
offender, to be suspended, with credit for time served, and completed on probation. The
prosecutor also made the following comments regarding the specifics of the negotiated
agreement:
Now, although this is not—the plea itself is not to a sexual crime,
and therefore the usual things are not mandatory, he is agreeing that we‘re
going to apply sexual offender treatment under 39-13-705 to his probation.
And he‘ll undergo that as a normal thing. The surcharge and the registry,
however, will not apply to him. And that‘s of major benefit to him . . . that
he won‘t be on the registry. He‘s to do 100 hours of public service work at
a rate of at least 8 hours per month. There is no fine. He is to pay the court
costs. And, obviously, he understands . . . that upon doing this plea, he
becomes a potential witness to either side should we go to trial on Mr.
Rowe.
The trial court then reviewed with the Petitioner the various trial rights he was
waiving by pleading guilty. The trial court also outlined the particular terms of the plea
agreement and the consequences of his guilty plea. Indeed, in response to the trial court‘s
questioning, the Petitioner acknowledged that he was ―going to be required to follow the
requirements for a sex offender, although [he was] not going to be officially a sex
offender.‖ Additionally, the Petitioner confirmed for the trial court that he was pleading
guilty voluntarily. After the Petitioner provided testimony about the events surrounding
the offense, the trial court accepted his plea.
From the technical record, it appears that the Petitioner‘s probation was twice
violated. On August 10, 2004, a violation of probation order was entered partially
revoking him and ordering him to serve sixty days before being returned to probation.
Again, on July 17, 2008, a violation of probation order was entered; this time the
Petitioner was revoked and ordered to serve the remainder of his eight-year sentence
incarcerated.
On January 7, 2015, the Petitioner filed a petition for post-conviction relief,
seeking relief from his facilitation of especially aggravated kidnapping conviction. In the
petition, the Petitioner made the following factual allegations1:
1
For the purpose of clarity, we place these allegations in numerical sequence, but these numbers do not
correspond to the sequence in the petition.
-3-
1. On June 30th 2002, the Sex Offender Registration Act was modified to
include Facilitation of Especially Aggravated Kidnapping under the
definition of ―sexual offense.‖ As a result, [the] Petitioner would have been
required to register as a sex offender. However, [the] Petitioner remained
unaware of this change and, more importantly, no agent of the State of
Tennessee ever contacted or informed the Petitioner of his obligation to
register between 2002 and 2004.
2. In 2004, the Tennessee State Legislature again revised the Sex Offender
Registration Act. Under the 2004 law, effective July 1, 2004, the offense
for which [the] Petitioner pled guilty, Facilitation of Especially Aggravated
Kidnapping, was not included as a ―sexual offense‖ or ―violent sexual
offense,‖ and [the] Petitioner was again not required to register as a sex
offender.
3. From 2004 until July 1, 2012, [the] Petitioner was incarcerated on a
Violation of Probation.
4. In the fall of 2011, [the] Petitioner was erroneously informed that he was
currently obligated to register as a sex offender within 48 hours of his
release from incarceration. Through his mother Karen Gray, [the]
Petitioner hired the services of an attorney, Ronald G. Freemon, to dispute
this action. [The] Petitioner was charged with ―Sexual Offender
Registration Form Violation‖ in Wayne County for his refusal to comply
with the Sex Offender Registration Act. [The] Petitioner‘s attorney
demonstrated to the prosecution that [the] Petitioner was not required to
register as a sex offender because the offense of Facilitation of Especially
Aggravated Kidnapping was not a sex offense under the Act. The Wayne
County District Attorney dismissed the charge in case no. 91GS1-2012-CR-
25247 on April 3, 2012.
5. On July 1, 2012, another modification of the Sex Offender Registry law
came into effect. As of July 1, 2012, and through the present date, [the]
Petitioner is required to register under the Sex Offender Registration Act.
6. . . . He has entered nolo contendre pleas in case number F71825 and
F72122 to violations of the Sex Offender Registration Act in the Circuit
Court for Rutherford County on October 13, 2014, for which he is currently
serving a 90-day term of incarceration, followed by 9 months on probation.
[The] Petitioner is due to be released from custody on or about January 20,
2015 . . . .
-4-
In the Petitioner‘s memorandum of law attached to the petition, he clarified that he was
indicted in Rutherford County on June 3, 2014, and again on August 6, 2014 for violating
the Sex Offender Registration Act, cases F71825 and F72122. He was not specific as to
the precise nature of the violations charged prior to the entry of his guilty pleas on
October 13, 2014. He stated that he was not seeking relief from the judgments in those
cases, ―but to demonstrate the harm wrought by the State‘s default on its agreement in the
instant case.‖
The Petitioner stated as his post-conviction ―claim for relief‖—―By modifying the
Sex Offender Registration Act to include the offense of Facilitation of Especially
Aggravated Kidnapping and forcing [the] Petitioner to comply with the sex offender
registry, the State of Tennessee has effectively violated a material condition of the plea
agreement entered on February 28, 2002.‖ The Petitioner acknowledged that the one-
year statute of limitations for post-conviction relief had long since expired but argued that
―strict adherence thereto would effectively deny [him] a reasonable opportunity to
present his claims.‖ He contended that due process necessitated tolling of the limitations
period because the State‘s default ―arose over 10 years after the limitations period‖ had
expired, that ―it was impossible to assert his claim in any earlier proceeding[,]‖ and that
he had ―diligently pursued his rights throughout this time, as evidenced by the successful
defense against the Sex Offender Registration Violation charge from 2011 in Wayne
County[.]‖ As a remedy, the Petitioner requested specific performance of the plea
agreement ―by prohibiting the State of Tennessee from requiring [him] to register as a sex
offender on the basis of the judgment in this case regardless of any past, present or future
changes in the law‖ or, in the alternative, for the court to vacate the judgment and allow
the Petitioner to withdraw his guilty plea.
The post-conviction court summarily dismissed the petition by written order filed
on January 26, 2015, concluding that the petition was time-barred:
. . . As stated in [John Doe v. [Robert E.] Cooper[, Jr., Tenn.
Attorney General], No. M2009-00915-COA-R3-CV, 2010 WL 2730583, at
*7 (Tenn. Ct. App. July 9, 2010):
The United States Supreme Court and the United States Court
of Appeals for the Sixth Circuit upheld Tennessee‘s sex
offender registry in Smith v. Doe, 538 U.S. 84 (2003), Conn.
Dept. of Public Safety v. Doe, 538 U.S. 1 (2003), Doe v.
Bredesen, No. 3:04-CV-566, 2006 WL 849849 (E.D. Tenn.
Mar. 28, 2006), aff‘d 507 F.3d 998 (6th Cir. 2007), cert.
denied, -- U.S. --, 129 S. Ct. 287 (2008), and Cutshall v.
Sundquist, 193 F.3d 466 (6th Cir. 1999).
-5-
―An examination of the clearly-expressed legislative intent of the
registration act supports the conclusion that the registration requirements
imposed by the sex offender registration act are nonpunitive and that they
are therefore a collateral consequence of a guilty plea.‖ Ward v. State, 315
S.W.3d 461, 469 (Tenn. 2010) [(quoting Tenn. Code Ann. § 40-39-201)].
―The Court of Criminal Appeals of Tennessee noted in Gibson that ‗[t]he
United States Supreme Court has declared that sexual offender registration
acts with retroactive application do not violate the federal Constitution‘s Ex
Post Facto Clause if they are nonpunitive in nature.‘‖ Doe v. Cooper, 2010
WL 2730583, at *7 ([quoting] State v. [Larry Wade] Gibson, No. E2003-
02102-CCA-R3-CD, 2004 WL 2827000, at *5 (Tenn. Crim. App. Dec. 9,
2004).
As a result, the Petitioner‘s due process rights have not been violated
because the retroactive placing of the Petitioner on the sexual offender
registry does not violate [the Tennessee or United States Constitution], and
the statute of limitations for post-conviction relief has not been tolled.
The Petitioner filed a timely notice of appeal therefrom, challenging the post-conviction
court‘s summary dismissal.
ANALYSIS
On appeal, the Petitioner argues that the post-conviction court erred in summarily
dismissing his petition for post-conviction relief because due process requires tolling of
the statute of limitations. Specifically, he contends that the State violated ―a material
term‖ of his plea agreement by enforcement of the sexual offender registry act against
him and that strict application of the one-year limitations would deny him the opportunity
to present his claim in a meaningful time and manner. He requests that we remand the
case for an evidentiary hearing at a minimum or, alternatively, allow him the option of
specific performance of the plea agreement or to rescind his guilty plea. The State
responds that the petition was properly dismissed as untimely because the Petitioner has
not established that he was diligent in pursuing his rights under the Post-Conviction
Procedure Act.
Post-conviction relief is available when a ―conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.‖ Tenn. Code Ann. § 40-30-103. Our
courts have used the post-conviction procedure to redress a denial of the right to counsel,
in proper cases, by ordering ―[s]pecific performance of a plea agreement [as] a
constitutionally permissible remedy.‖ Goosby v. State, 917 S.W.2d 700, 708 (Tenn.
Crim. App. 1995) (citing Santobello v. New York, 404 U.S. 257 (1971); Turner v. State,
-6-
858 F.2d 1201, 1208 (6th Cir. 1988)); see also John Doe v. Mark Gwyn, Dir. of Tenn.
Bureau of Investigation, et. al., No. E2012-00497-CCA-R3-HC, 2013 WL 1136523, at
*5-6 (Tenn. Crim. App. Mar. 19, 2013).
A plea bargain agreement may be scrutinized on appeal where enforcement
of the agreement would deny the accused a fundamental constitutional right
or be unconscionable and not deserving of judicial approval. When the
State later breaches a plea bargain agreement, the aggrieved defendant may
either seek specific performance of the agreement or ask the court to restore
both parties to the status they occupied immediately before the plea was
entered. However, these principles apply only after the bargained guilty
plea has been accepted by the Court.
Harris v. State, 875 S.W.2d 662, 666 (Tenn. 1994) (citations omitted). See also State v.
Turner, 713 S.W.2d 327, 329 (Tenn. Crim. App. 1986) (―When the state later breaches a
plea bargain agreement, the aggrieved defendant may either seek specific performance of
the agreement or ask the court to restore both parties to the status they occupied
immediately before the plea was entered.‖); Metheny v. State, 589 S.W.2d 943, 945
(Tenn. Crim. App. 1979) (―Where an agreement is accepted and breached, one of two
results ordinarily follows, depending on the circumstances: (1) either specific
performance of the agreement is directed, or, (2) the parties are restored to the status
existing immediately before the plea was entered.‖).
However, a petition for post-conviction relief must be filed ―within one (1) year of
the date of the final action of the highest state appellate court to which an appeal is taken
or, if no appeal is taken, within one (1) year of the date on which the judgment became
final[.]‖ Tenn. Code Ann. § 40-30-102(a). Here, it is undisputed that the Petitioner filed
his petition well outside the one-year statute of limitations.
―[T]he right to file a petition for post-conviction relief . . . shall be extinguished
upon the expiration of the limitations period.‖ Tenn. Code Ann. § 40-30-102(a). ―If it
plainly appears from the face of the petition, any annexed exhibits or the prior
proceedings in the case that the petition was not filed . . . within the time set forth in the
statute of limitations, . . . the judge shall enter an order dismissing the petition.‖ Tenn.
Code Ann. § 40-30-106(b). The Post-Conviction Procedure Act is explicit that the one-
year statute of limitations ―shall not be tolled for any reasons, including any tolling or
saving provision otherwise available at law or equity.‖ Tenn. Code Ann. § 40-30-102(a).
The limitations period has three statutory exceptions for certain claims involving
new constitutional rights, certain claims involving new scientific evidence, and for
sentences enhanced by subsequently overturned convictions. Tenn. Code Ann. § 40-30-
-7-
102(b). There is nothing in the record to suggest that any of these exceptions apply to the
Petitioner‘s case.
In addition to the statutory circumstances, our supreme court has held that due
process principles may require tolling the statute of limitations. See Whitehead v. State,
402 S.W.3d 615, 622-23 (Tenn. 2013). To date, our supreme court ―has identified three
circumstances in which due process requires tolling the post-conviction statute of
limitations‖: (1) when the claim for relief arises after the statute of limitations has
expired; (2) when the petitioner‘s mental incompetence prevents him from complying
with the statute of limitations; and (3) when the petitioner‘s attorney has committed
misconduct. Id. at 623-24. To succeed upon such a claim, a petitioner must show ―(1)
that he or she had been pursuing his or her rights diligently, and (2) that some
extraordinary circumstance stood in his or her way and prevented timely filing.‖ Id. at
631 (citing Holland v. Florida, 560 U.S. 631, 648-49 (2010)).
The standard for pursuing one‘s rights diligently ―does not require a prisoner to
undertake repeated exercises in futility or to exhaust every imaginable option, but rather
to make reasonable efforts [to pursue his or her claim].‖ Whitehead, 402 S.W.3d at 631
(quoting Aron v. United States, 291 F.3d 708, 712 (11th Cir. 2002)) (internal quotation
marks omitted) (brackets in original). However, equitable tolling of the statute is a
remedy that should be utilized sparingly in ―those rare instances where—due to
circumstances external to the party‘s own conduct—it would be unconscionable to
enforce the limitations period and gross injustice would result.‖ Id. at 631-32 (citations
omitted). As a result, ―the threshold necessary to trigger equitable tolling is very high,
lest the exceptions swallow the rule.‖ Id. at 632 (citations omitted).
The Petitioner‘s claim for due process tolling is one in which the grounds for
overturning the conviction arose after the one-year deadline had already passed, i.e., it
can be characterized as a later-arising claim. See Sands v. State, 903 S.W.2d 297, 301
(Tenn. 1995). Generally, ―before a state may terminate a claim for failure to comply with
. . . statutes of limitations, due process requires that potential litigants be provided an
opportunity for the presentation of claims at a meaningful time and in a meaningful
manner.‖ Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992). Our supreme court has
held that the ―Whitehead-Holland test‖ ―applies to all due process tolling claims, not just
those that concern alleged attorney misconduct[,]‖ and has utilized that standard in
analyzing a claim for relief that arose after the statute of limitations had expired. Bush v.
State, 428 S.W.3d 1, 21-23 (Tenn. 2014).
Here, the post-conviction court decided that the Petitioner‘s retroactive placement
on the sexual offender registry did not violate his due process rights, relying on Ward v.
State, wherein our supreme court determined that mandatory registration as a sexual
offender was ―a collateral consequence of the guilty plea.‖ 315 S.W.3d 461, 463-64
-8-
(Tenn. 2010). Because the registration requirement is ―remedial and regulatory‖ rather
than punitive, the court held that ―the trial court was not required to advise the [guilty-
pleading] defendant of the requirement of sex offender registration.‖ Id. In addition, the
court said, ―the registration act, although perhaps inconvenient for Mr. Ward, has no
effect on his range of punishment. We are joined in this view by a majority of the states
in this country.‖ Id. at 469.
However, our supreme court cautioned in its ruling that the terms of the
registration law applicable to Ward should not be read as approval of other, inapplicable
restrictions expressed in the law, such as those that apply when the victim is a minor. See
Ward, 315 S.W.3d at 472-73. The court made ―two final observations‖ in concluding
analysis of the issue:
First, at the risk of stating the obvious, we address the applicable sections
of the registration act as currently written and in effect. . . . [T]he General
Assembly has frequently enacted amendments to the registration act—
amending the statute at least fifteen times since 2005. Although some of
the amendments have loosened the requirements imposed on sex offender
registrants, most of the changes have had the effect of adding or increasing
requirements and restrictions. Obviously, nothing in this opinion precludes
the possibility that an amendment to the registration act imposing further
restrictions may be subject to review on the grounds that the additional
requirements render the effect of the act punitive. Secondly, we reiterate
that the restrictions imposed by Tennessee Code Annotated section 40-39-
211(a) & (c), applicable only to offenders whose victim was a minor, are
not at issue here because Mr. Ward‘s victim was not a minor.
Thus, Ward did recognize that the restrictions placed upon a sexual offender whose
victim was a minor have more impact than the standard restrictions on sexual offenders.
Moreover, while our supreme court did hold that registration as a sex offender was
a collateral consequence of a conviction for a sexual offense, the court in Ward
additionally determined that a mandatory sentence of lifetime community supervision
was a direct and punitive consequence of Ward‘s guilty plea. See 315 S.W.3d at 473-76;
see also Bush, 428 S.W.3d at 9. The court explained why lifetime supervision is a more
grievous sanction than collateral consequences such as sex offender registration and a
defendant‘s parole requirements. Id. The court also explained that lifetime community
supervision is ―punitive in effect,‖ because it requires the defendant
to regularly report to a parole officer who is granted wide discretion in
imposing supervisory requirements, and to pay a monthly fee. The
imposition of lifetime supervision and the attendant consequences placed
-9-
on an individual after having served his or her entire sentence of
incarceration and/or regular parole are significant.
Ward, 315 S.W.3d at 474. Because ―lifetime supervision imposes an additional set of
restrictions and requirements on the offender after serving his or her entire sentence of
incarceration,‖ the court found that ―post-release supervision is a significant, punitive
component of [a] defendant‘s sentence.‖ Id. at 475-76 (quoting People v. Goss, 733
N.Y.S.2d 310, 314 (N.Y. App. Div. 2001)).
In the present case, the Petitioner‘s victim was a minor, and therefore, the
restrictions imposed by Tennessee Code Annotated sections 40-39-211(a) & (c) and 40-
39-215 would be applicable to him once registered. The Petitioner would also be subject
to the lifetime community supervision requirement of Tennessee Code Annotated section
39-13-524. Accordingly, we cannot agree with the post-conviction court‘s conclusion
that due process did not require tolling based upon the rationale espoused in Ward
regarding the discussion of collateral and direct consequences of a guilty plea. We must
conclude that the Petitioner, here, after registering, would be subject to significant,
punitive consequences from his 2002 guilty plea to facilitation of especially aggravated
kidnapping.
We make another important distinction. Ward was an appeal in a post-conviction
proceeding, wherein Ward alleged that his plea was not ―knowing and voluntary‖
because he was not aware of the plea‘s full consequences, specifically his placement on
the sex offender registry and mandatory sentence of lifetime supervision. ―[T]he utility
in [Ward] of discerning between collateral and direct consequences of a guilty plea was
in adjudicating whether the accused, uninformed as to the consequence at issue,
submitted a knowing and voluntary plea.‖ Doe v. Gwyn, 2013 WL 1136523, at * 2.
Rather than any failure to advise a defendant of certain consequences to a guilty plea for
a sexual offense, the Petitioner in this case was in fact specifically advised that he was
not required to register as a sexual offender at the guilty plea submission hearing. Thus,
Ward is clearly distinguishable on its facts.2 Accordingly, we return to analysis of the
guidelines for due process tolling provided for by Whitehead and Holland: whether the
Petitioner established (1) that he had been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and prevented timely filing.
First, we must determine when the Petitioner‘s later-arising claim arose before we
can assess whether he pursued his rights diligently. See Sands, 903 S.W.2d at 301. For
example, in Doe v. Gwyn, the petitioner pled guilty to attempted aggravated sexual
battery and was required to register as a sexual offender at the time of his 1995
2
We feel constrained to note that Bush v. State, a 2014 case from our supreme court, dealt with ―very
similar‖ facts as those presented in Ward and, thus, is also distinguishable. 428 S.W.3d at 8.
-10-
conviction; however, the 2004 and 2007 amendments to the sexual offender registration
act reclassified him ―as a violent sexual offender for life‖ and ―removed his opportunity
to be removed from the registry after ten years following the expiration of his sentence
and caused his name and photograph to be published.‖ 2013 WL 1136523, at *1. He
argued, in a 2011 habeas corpus petition, that the ―changes wrought by the legislature
worked a breach of his plea contract‖ and that ―the courts should specifically enforce his
plea agreement.‖ Id. On appeal, this court first determined that the petitioner was not
entitled to habeas corpus relief because ―the applicable restraints upon the petitioner by
the sexual offender registration laws [did] not equate to an extension of his sentence‖ and
then addressed the petitioner‘s claim that, but for the grant habeas corpus relief, ―no legal
avenue was ever available to address [his] complaints.‖ Id. at *5. This court addressed
the feasibility of redress via a petition for post-conviction relief and concluded that such a
claim was viable in a post-conviction context. Applying the Whitehead-Holland
standard, which requires a determination that some extraordinary circumstance stood in
the Petitioner‘s way and prevented timely filing, we rely on the same logic used in Doe v.
Gwyn, that the petitioner had a later-arising post-conviction remedy available to him in
that case.
Turning to an examination of the Petitioner‘s diligent pursuit of his rights, we note
that the court went on to conclude in Doe v. Gwyn that the petitioner was not entitled to
due process tolling because ―several years [had] elapsed since the statutory amendments
that aggrieve[d] the petitioner were enacted.‖ Id. at *6. In so concluding, the court
reasoned that ―[a]pparently, the petitioner‘s concerns about the sexual offender
registration arose via 2004 and 2007 amendments to the law despite that he may not have
experienced consequential employment or social detriments until later[,]‖ and his petition
was not filed until 2011. Id. at *5. However, the rationale of Doe v. Gwyn, that the date
of the amendments worked to aggrieve the petitioner, will not prevail in every case.
Here, we disagree with the State‘s assessment that the Petitioner‘s post-conviction
claim arose ―as early as fall 2011 when he was charged with violating the sex offender
registration statute in Wayne County or as recently as July 1, 2012, when the statute was
amended to require persons convicted of facilitation to commit especially aggravated
kidnapping to register as a sex offender.‖ The Petitioner was specifically advised in 2002
that he was not required to register as a sexual offender; a pivotal fact that distinguishes it
from the factual situation presented in Gwyn. In Gwyn, the petitioner was always
required to register as a sexual offender pursuant to the terms of his plea agreement, and
it was the amendments to the act that worked to impose additional restrictions on the
petitioner. In the present case, the sexual offender registration act was amended over the
years and, at times, did and did not include the Petitioner‘s conviction. Simply because
the act was amended to include the Petitioner‘s conviction did not mean that the
Petitioner was required to register and for some years the State did not seek to apply the
-11-
act to the Petitioner. Accordingly, we are not concerned here with when the sexual
offender registration act was amended to encompass the Petitioner‘s conviction but when
the State sought to enforce its requirements against the Petitioner because it was then that
the Petitioner was subjected to the punitive consequences of the act. We conclude that, in
this case, it was only when the State sought to apply the act‘s provisions to the Petitioner
that it possibly breached a ―material term‖ of the plea agreement triggering the
Petitioner‘s responsibility to pursue his rights diligently.
In 2011, the statute had not yet been amended to encompass the Petitioner‘s
conviction when he was charged with failure to comply with the sexual offender
registry‘s requirements in Wayne County. The Petitioner successfully sought dismissal
of the 2011 charge on April 3, 2012, according to the factual allegations set forth in his
petition, because the offense was not a listed sexual offense under the Act. Although the
Petitioner did not file a post-conviction petition at that time, he did make reasonable
efforts to pursue his claim, obtaining dismissal of the charge. As best as we can discern
from the record before us on summary dismissal, the State did not seek to enforce the
provisions of the Sexual Offender Registration Act against the Petitioner again until June
3, 2014, and August 6, 2014, when the Petitioner was charged in Rutherford County with
two separate violations. He subsequently entered nolo contendre pleas to both of those
charges. The Petitioner then filed his post-conviction petition, on January 7, 2015,
approximately seven months after he was first indicted in Rutherford County.3 Under
these facts, we conclude that the Petitioner was diligently pursuing his rights in
accordance with the Whitehead–Holland test.
We find this to be one of those rare unconscionable cases that cries out for due
process tolling. See, e.g., Dennis Cedric Woodard, Jr., v. State, No. M2013-01857-CCA-
R3-PC, 20014 WL 4536641 (Tenn. Crim. App. Sept. 15, 2014) (concluding that later-
arising claim involving attorney misconduct necessitated tolling of the limitations
period). However, we note that our determination that the Petitioner is entitled to a
hearing is not to be read as indicative of the merit of the Petitioner‘s claims, which will
be analyzed by the post-conviction court. Id. We also guide the lower court to make the
appropriate findings in ruling on the petition. Id. Accordingly, this case is reversed, and
3
We note that the dates provided by the Petitioner in his memorandum are the dates that he was indicted;
they are not necessarily the dates on which he failed to comply with the State‘s requests pursuant to the
sexual offender registration act, i.e., the offense dates or when the State sought to apply the Act to him.
The State could possibly prove that the offense dates were much earlier upon remand and, thus, that the
Petitioner did not pursue his rights diligently. However, it is likely that, even if the offense dates are
different from the indictment dates, the Petitioner filed his petition within one year from the date of the
first offense. This ambiguity exists due to the post-conviction court‘s summary dismissal of the petition
encompassing the merits on the Petitioner‘s claim rather than solely based on due process tolling
considerations.
-12-
the Petitioner must receive an evidentiary hearing in which to present proof as to his post-
conviction grounds for relief.
CONCLUSION
Upon consideration of the foregoing and the record as a whole, we reverse the
summary dismissal of the petition by the post-conviction court and remand for an
evidentiary hearing consistent with this opinion.
_________________________________
D. KELLY THOMAS, JR., JUDGE
-13- | 01-03-2023 | 01-21-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1724163/ | 614 S.W.2d 496 (1981)
UNITED STATES FIRE INSURANCE COMPANY, Appellant,
v.
James D. BIGGS, Appellee.
No. 9114.
Court of Civil Appeals of Texas, Amarillo.
March 31, 1981.
*497 Stokes, Carnahan & Fields, Gary W. Barnard, Amarillo, for appellant.
Robinson & Fotheringham, E. Wayne Campbell, Amarillo, for appellee.
REYNOLDS, Chief Justice.
James D. Biggs, employed as a part-time law clerk by and in the law office of attorney Tom Upchurch, Jr., received injuries while performing a task personal to John Lesly, a salaried attorney in Upchurch's office. In the trial court, Biggs recovered workers' compensation benefits and medical expenses from United States Fire Insurance Company for his injuries, which the jury found were sustained in the course of employment. On appeal, we agreed with the insurance company's contention that there is no evidence to support the jury's finding that Biggs was injured in the course of employment, reversed the trial court's judgment and rendered a take-nothing judgment. United States Fire Ins. Co. v. Biggs, 601 S.W.2d 132 (Tex.Civ.App.Amarillo 1980, writ granted). The Supreme Court reversed our judgment, holding there is some evidence that, at the time of his injuries, Biggs remained in the scope of his employment through Lesly's "temporary direction" under apparent authority from Upchurch. The cause was remanded for our determination of the insurance company's point of error that the evidence is factually insufficient to support the jury's finding that Biggs was injured in the course of employment. Biggs v. United States Fire Ins. Co., 611 S.W.2d 624 (Tex. 1981); 24 Tex.Sup.Ct.J. 204 (Jan. 28, 1981). We now overrule the point and affirm.
Given the application of the "temporary direction" exception to the general rule we followed in holding that Biggs was not injured in the course of employment, we are required by the insurance company's point of error to determine whether the evidence of Lesly's apparent authority from Upchurch to use Biggs for personal errands, including the one during which Biggs was injured, is so weak, or the evidence to the contrary is so overwhelming, that the jury's finding should be set aside. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). In making the determination, we must consider and weigh all of the evidence. Id.
The evidence on apparent authority is adequately detailed in the former opinions and it need not be repeated here. Suffice it to state that the evidence, being conflicting and contradictory, was, in the words of the Supreme Court, "sharply disputed." 611 S.W.2d at 626; 24 Tex.Sup. Ct.J. at 205 (Jan. 28, 1981). With the evidence in this state, the jury became the exclusive judges of the credibility of the witnesses and the weight to be given their testimony, being privileged, in resolving the conflicts and contradictions, to believe all or part or none of the testimony of any one witness in arriving at the finding it concluded was the most reasonable under the evidence. Bullard v. Universal Underwriters *498 Ins. Co., 609 S.W.2d 621, 625 (Tex.Civ. App.Amarillo 1980, no writ). Thus, by virtue of the sharply disputed evidence adduced and the jury's role, we are not authorized to substitute our judgment for that of the jury, even though we might have reached a different factual conclusion from the evidence. Continental Bus System, Inc. v. Biggers, 322 S.W.2d 1, 4 (Tex.Civ.App. Houston 1959, writ ref'd n. r. e.). Accordingly, we cannot say that the evidence is factually insufficient to support the jury's finding that Biggs sustained injuries in the course of employment.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1723750/ | 167 So. 2d 309 (1964)
Ellis THOMAS, Jr., Appellant,
v.
The STATE of Florida, Appellee.
No. 32742.
Supreme Court of Florida.
September 16, 1964.
Francisco A. Rodriguez, Tampa, for appellant.
James W. Kynes, Atty. Gen., and James G. Mahorner, Asst. Atty. Gen., for appellee.
O'CONNELL, Justice.
Ellis Thomas, Jr., was convicted of the crime of rape and given a death sentence.
The sole question presented is the sufficiency of the evidence. Specifically, appellant contends that the evidence does not show "that measure of apprehension on the part of the complaining witness to show that consent was rendered out of genuine fear of loss of life or genuine fear of suffering bodily harm." He argues that there was no showing of any actual force at the time of the penetration.
Neither the identity of the appellant, nor the fact of penetration by him is in dispute. It is not disputed that appellant entered prosecutrix's home illegally by cutting through a screen on a window. We will not repeat the evidence on these points.
Only the prosecutrix, a 62-year-old white woman, and the appellant, a Negro farm worker, had knowledge of the facts surrounding the incident involved. The appellant elected not to testify. As in most cases of this kind, the only evidence on the crucial element of force is the testimony of the prosecuting witness.
This evidence shows that the prosecutrix, who lived alone, was awakened at about 3:45 A.M. on September 30, 1962, by a hand on her shoulder. The intruder identified himself as one who had worked a short time for the prosecutrix several years earlier. He advised her that "she had no telephone," implying that it has been rendered inoperative. Thereafter, over a period of approximately two hours, during which the appellant at all times kept the prosecutrix under his control or in his immediate presence, the appellant required her to take him on a tour of the house to ascertain that there was no other person in the home; ordered her to produce a bottle of whisky, forced her to take a drink and had several himself; subjected her to *310 lengthy tirades about the sad plight of the Negro; demanded money of her; and finally, in her words, the appellant "danced around the room like he was going into a trance." He then told her in words of like effect that he was going to rape her and ordered her to undress, which she refused to do. She testified that appellant then grabbed her with both hands around her neck and choked her. He asked "Do you want to live or do you want to die?", after which she submitted. As appellant left her room, near 6:00 A.M., the prosecutrix dashed into her bathroom, locked the door, and remained there until she felt it safe to come out. During this interlude she testified that she bathed and tried to compose herself.
When she came out of the bathroom, she called her doctor at his home. Unable to reach him, she left word at the hospital for him to call on her. He did call on her at about 10:30 A.M., examined her, determined that penetration had occurred, and found a bruise on her neck. He placed her in the hospital under heavy sedation.
The prosecutrix testified that during her long ordeal she played for time, hoping for daylight, because she felt that the appellant would be less apt to harm her during the day.
This evidence is adequate to support the judgment and sentence.
The rule is that where the sole witness is the prosecutrix, her testimony must be carefully scrutinized so as to avoid an unmerited conviction. Johnson v. State, Fla.App. 1960, 118 So. 2d 806. The testimony of the prosecutrix survives such scrutiny. It is reasonable, consistent with corroborating evidence on other points not necessary to be discussed, and is not in anywise contradictory.
The carnal act of rape must be committed against the resistance of a woman, but resistance is a relative term and must be considered in view of the circumstances of each case. Jackson v. State, Fla. App. 1958, 107 So. 2d 247.
The female need not resist as long as either strength endures or consciousness continues. The amount of resistance required depends on the circumstances, including the relative strength of the parties, the age and condition of the female, the apparent uselessness of resistance, and the degree of force manifested. It is only necessary that the resistance of the female be such as to make non-consent and actual resistance real, under the circumstances prevailing. Jackson v. State, supra; see also 75 C.J.S. Rape § 12 and cases cited therein.
Here, in addition to understandable fear which prosecutrix testified she experienced, the appellant applied actual force by choking her.
It is apparent under the facts of this case that the prosecutrix's actions meet every required standard of resistance and protest, and in no rational manner can her consent to the rape be implied.
Despite the fact that the appellant only questions the sufficiency of the evidence, we have carefully considered every facet of the proceedings reflected by the record before us to determine if the ends of justice require a new trial. We find no error in the proceedings and nothing to warrant a new trial.
Accordingly, the judgment and sentence of the trial court is
Affirmed.
DREW, C.J., and THOMAS, ROBERTS, THORNAL and CALDWELL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260747/ | 124 Cal. Rptr. 2d 22 (2002)
101 Cal. App. 4th 247
The PEOPLE, Plaintiff and Respondent,
v.
Steven FOSTER, Defendant and Appellant.
No. D037675.
Court of Appeal, Fourth District, Division One.
August 16, 2002.
Review Denied November 13, 2002.[*]
*23 Elizabeth A. Missakian, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Elizabeth A. Hartwig and Warren P. Robinson, Deputy Attorneys General, for Plaintiff and Respondent.
McINTYRE, J.
Steven Foster appeals from a judgment sentencing him to 30 years imprisonment and to undergo hormone suppression treatment upon parole under Penal Code section 645 (all statutory references are to the Penal Code). Foster contends the portion of the judgment imposing hormone suppression treatment must be reversed because this sentence is grossly disproportionate and violates state and federal constitutional prohibitions against cruel and unusual punishment. Because appellate review of this claim is precluded under the terms of Foster's negotiated plea agreement, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Foster sexually abused the 12-year-old daughter of his girlfriend over a six-month period, and was charged with 32 counts of forcible lewd acts upon a child, five counts of aggravated sexual assault against a child, two counts of assault with a deadly weapon likely to cause great bodily injury, and two counts of felony child abuse.
On June 6, 2000, pursuant to a written plea agreement, Foster agreed to plead guilty to five counts of forcible lewd acts upon a child in exchange for a stipulated prison term of 30 years and the dismissal of the remaining countsfive of which carried sentences of 15 years to life. Foster acknowledged in the plea agreement that his attorney had explained the consequences of his plea, which expressly included "Possible/Mandatory hormone suppression treatment." He also initialed a waiver of appeal rights that stated: "I give up my right to appeal from the judgment in this case based on ... any sentence within the terms herein specified." The agreement also contains: (1) a statement signed by Foster's attorney affirming that he read and explained the contents of the plea agreement to Foster, discussed the charges and all possible defenses with him, as well as the consequences of the plea, and personally observed Foster read and initial each item to "acknowledge his[ ] understanding and waivers," and (2) the judge's signature and his findings that Foster "understands and voluntarily and intelligently waives his[ ] constitutional rights; the defendant's plea and admissions are freely and voluntarily made; [and] the defendant understands the nature of the charges and the consequences of the pleas and admissions." In addition, at the hearing on the change of plea, Foster affirmed he had reviewed the plea agreement with his attorney, understood he would be giving up his constitutional rights, and also understood his plea "would subject [him] to registration and to mandatory chemical treatment upon release on parole."
On August 15, 2000, the trial court exercised its discretion under section 645, subdivision (a) and sentenced Foster to undergo hormone suppression treatment upon parole in addition to the other punishment of 30 years' imprisonment. In doing so, the court noted: "Mr. Foster was in a position of trust. The acts were substantial. *24 They are cruel and they are predatory in nature, and I do believe that this type of treatment is in the interest of justice under these circumstances."
DISCUSSION
Foster agreed to plead guilty to specified charges in exchange for a particular sentence and the dismissal of other charges, acknowledged he understood the consequences of his plea, including "Possible/Mandatory hormone suppression treatment," and agreed to waive the right to appeal "any sentence within the terms herein specified." Under these circumstances, he is precluded from appealing the portion of his sentence imposing hormone suppression treatment upon parole. (See People v. Panizzon (1996) 13 Cal. 4th 68, 79-89, 51 Cal. Rptr. 2d 851, 913 P.2d 1061 [defendant who enters a negotiated plea agreement specifying the sentence and containing a waiver of the right to appeal the sentence cannot appeal on the ground that the sentence imposed is disproportionate and thus cruel and unusual]; see also People v. Nguyen (1993) 13 Cal. App. 4th 114, 120-122, 16 Cal. Rptr. 2d 490.) In other words, having bargained for a 30-year sentence that included the possible imposition of hormone suppression treatment in exchange for the dismissal of myriad serious felony charges, Foster cannot then maintain on appeal that such treatment cannot be imposed because it would violate prohibitions against cruel and unusual punishment. To do so would be to have his cake and eat it too.
Foster contends his cruel and unusual punishment claim is cognizable on appeal because he never waived his right to appellate review of the trial court's exercise of discretion under section 645, subdivision (a). This mischaracterizes his position in this case, which is that the trial court could not exercise its discretion to impose hormone suppression treatment upon Foster's parole because such is cruel and unusual. The time to have taken this position, however, was before entering the plea agreement that expressly included such punishment as a possible consequence and contained a waiver of the right to appeal any sentence within its terms. Moreover, given the validly executed plea agreement and waiver form and the acknowledgments contained therein, Foster's waiver of the right to appeal is enforceable even though the court did not specifically admonish Foster that he would be giving up his appellate rights. (People v. Panizzon, supra, 13 Cal.4th at pp. 83-84, 51 Cal. Rptr. 2d 851, 913 P.2d 1061.)
Foster also contends his claim is cognizable on appeal because the court's imposition of hormone suppression treatment upon parole, which was ordered more than a month after the 30-year prison term was imposed, (1) was a future error outside his contemplation and knowledge at the time his waiver was made, and (2) constitutes an unauthorized sentence that can be corrected on appeal because it is disproportionate and cruel and unusual. We disagree on both counts. First, although the court sentenced Foster to undergo hormone suppression treatment upon parole after Foster entered into the plea agreement, this component of the sentence was specifically listed as a possible consequence of the plea and the court admonished Foster of such. Thus, it "cannot fairly be characterized as falling outside of [Foster's] contemplation and knowledge when the waiver was made." (People v. Panizzon, supra, 13 Cal.4th at p. 86, 51 Cal. Rptr. 2d 851, 913 P.2d 1061.) Second, the Supreme Court in Panizzon rejected the defendant's contention that his disproportionate, cruel and unusual punishment claim was cognizable under an unauthorized *25 sentence theory, because the sentence imposed was negotiated as part of the plea agreement and did not exceed the statutory maximum. (Id. at p. 88, 51 Cal. Rptr. 2d 851, 913 P.2d 1061.) Similarly, the possible imposition of hormone suppression treatment upon parole was part of Foster's negotiated plea agreement and did not exceed or run afoul of section 645. Thus, it is not an unauthorized sentence.
The dissent maintains that such sentence was unauthorized because section 645, subdivision (a) does not authorize the court to impose hormone suppression treatment upon parole at sentencing; rather, it authorizes such treatment only when the Board of Prison Terms, in establishing conditions of parole shortly before a prisoner's release, deems it to be appropriate and then petitions the court for approval of the imposition of such condition. The statute does not provide for this procedure, however. The dissent proceeds on the premise that section 645, subdivision (a) is ambiguous, which is not the case. Indeed, the statute makes clear that hormone suppression treatment upon parole may be imposed by the court in its discretion "in addition to any other punishment prescribed for that offense." (Ibid., italics added.) Such treatment is not a mere condition of parole, the imposition of which is committed to the discretion of the Board of Prison Terms in the first instance. Under the terms of section 645, subdivision (a), such treatment is punishment to be imposed in the trial court's discretion as part of a defendant's sentence at the time of sentencing. Similarly, where the defendant has incurred a second conviction of the enumerated sex offenses, subdivision (b) of section 645 provides that he shall undergo hormone suppression treatment upon parole "in addition to any other punishment prescribed for that offense" (italics added)i.e., as with subdivision (a), such treatment is punishment imposed as part of the defendant's sentence. In contrast, section 3053.5, cited by the dissent, specifically refers to requiring abstinence from alcohol for certain section 290 sex offenders as a "condition of parole," not as punishment. In sum, under the plain meaning of both subdivisions (a) and (b) of section 645, hormone suppression treatment is not a mere condition of parole; it is a form of punishment, the imposition of which is part of the defendant's sentence.
Finally, although Foster states in his opening brief that the issue presented in his appeal does not challenge the validity of the plea, but only the sentence, and thus, a certificate of probable cause is not required, he is incorrect. Because Foster seeks to challenge the constitutionality of a portion of his sentence that was clearly contemplated in his plea agreement, it was incumbent upon him to seek and obtain a probable cause certificate. (People v. Panizzon, supra, 13 Cal.4th at p. 77-79, 51 Cal. Rptr. 2d 851, 913 P.2d 1061.) However, the issue is moot, since we dispose of the appeal on the ground of waiver. (Id. at p. 79, 51 Cal. Rptr. 2d 851, 913 P.2d 1061.)
DISPOSITION
The judgment is affirmed.
I CONCUR: McCONNELL, J.
McDONALD, Acting P.J., Dissenting.
I interpret Penal Code section 645, subdivision (a)[1] to authorize the Board of Prison Terms (BPT) in the normal course of its imposition of parole conditions to include medroxyprogesterone acetate *26 (MPA) treatment[2] as a parole condition, subject to prior court approval;[3] it does not authorize a trial court at sentencing to impose MPA treatment as a parole condition. Therefore, I believe the trial court imposed an unauthorized sentence by ordering Foster to undergo section 645 MPA treatment on his parole release.
A
Section 645 was enacted in 1996 and states:
"(a) Any person guilty of a first conviction of any offense specified in subdivision (c), where the victim has not attained 13 years of age, may, upon parole, undergo medroxyprogesterone acetate treatment or its chemical equivalent, in addition to any other punishment prescribed for that offense or any other provision of law, at the discretion of the court.
"(b) Any person guilty of a second conviction of any offense specified in subdivision (c), where the victim has not attained 13 years of age, shall, upon parole, undergo medroxyprogesterone acetate treatment or its chemical equivalent, in addition to any other punishment prescribed for that offense or any other provision of law.
"(c) This section shall apply to the following offenses:
"(1) Subdivision (c) or (d) of Section 286.
"(2) Paragraph (1) of subdivision (b) of Section 288.
"(3) Subdivision (c) or (d) of Section 288a.
"(4) Subdivision (a) or (j) of Section 289.
"(d) The parolee shall begin medroxyprogesterone acetate treatment one week prior to his or her release from confinement in the state prison or other institution and shall continue treatments until the Department of Corrections demonstrates to the Board of Prison Terms that this treatment is no longer necessary.
"(e) If a person voluntarily undergoes a permanent, surgical alternative to hormonal chemical treatment for sex offenders, he or she shall not be subject to this section.
"(f) The Department of Corrections shall administer this section and implement the protocols required by this section. Nothing in the protocols shall require an employee of the Department of Corrections who is a physician and surgeon ... to participate against his or her will in the administration of the provisions of this section. These protocols shall include, but not be limited to, a requirement to inform the person about the effect of hormonal chemical treatment *27 and any side effects that may result from it. A person subject to this section shall acknowledge the receipt of this information."
Neither the majority nor the parties have cited, and I have not found, any cases construing the language of or otherwise considering section 645. Section 645, subdivision (a) does not specify either the time when or manner in which a trial court is to exercise its discretion to permit a parole condition of MPA treatment, and its interpretation appears to be an issue of first impression.
B
The conventional wisdom is that "[t]he goal of statutory construction is to ascertain and effectuate the intent of the Legislature. [Citation.] Ordinarily, the words of the statute provide the most reliable indication of legislative intent. [Citation.] When the statutory language is ambiguous, the court may examine the context in which the language appears, adopting the construction that best harmonizes the statute internally and with related statutes. [Citations.]" (Pacific Gas & Electric Co. v. County of Stanislaus (1997) 16 Cal. 4th 1143, 1152, 69 Cal. Rptr. 2d 329, 947 P.2d 291.) A statute must be considered as a whole and harmonized so far as possible with other statutory provisions. (1 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Introduction to Crimes, § 26, p. 55.) "`[A] statute should be construed with reference to the entire statutory system of which it forms a part in such a way that harmony may be achieved among the parts....'" (People ex rel. Younger v. Superior Court (1976) 16 Cal. 3d 30, 40, 127 Cal. Rptr. 122, 544 P.2d 1322; see also Terhune v. Superior Court (1998) 65 Cal. App. 4th 864, 876-877, 76 Cal. Rptr. 2d 841.)
When statutory language is susceptible of more than one reasonable interpretation, a court may "resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history" to assist it in construing ambiguous language. (People v. Coronado (1995) 12 Cal. 4th 145, 151, 48 Cal. Rptr. 2d 77, 906 P.2d 1232.) A statute "should be interpreted to make it valid and effective, and a construction favoring constitutionality is preferred. [Citations.]" (1 Witkin & Epstein, supra, § 27, p. 56.) A statute susceptible of two constructions should be interpreted, if reasonably possible, to avoid serious and doubtful constitutional questions. (People v. Birks (1998) 19 Cal. 4th 108, 135, 77 Cal. Rptr. 2d 848, 960 P.2d 1073.) A statute should also be "construed to avoid an absurd or bizarre result." (1 Witkin & Epstein, supra, § 27, p. 57.) If a statute is susceptible of more than one reasonable interpretation, the interpretation that results in the more sensible or pragmatic construction should be adopted. (Id. at § 32, pp. 62-63.)
The rule of lenity provides that "[w]hen faced with an ambiguous statute and no extrinsic indicia of legislative intent, courts are required to construe a criminal law `as favorably to the defendant as its language and intent will reasonably permit.' [Citation.] `"The defendant is entitled to the benefit of every reasonable doubt, whether it arise[s] out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute."' [Citation.]" (People v. Douglas (2000) 79 Cal. App. 4th 810, 815, 94 Cal. Rptr. 2d 500.) The rule of lenity applies only when there are two equally plausible interpretations of the statute. (Ibid.; People v. Prothero (1997) 57 Cal. App. 4th 126, 131, 66 Cal. Rptr. 2d 779; In re Christian S. (1994) 7 Cal. 4th 768, 780, 30 Cal. Rptr. 2d 33, 872 P.2d 574.)
C
Although the parties apparently assume that section 645 authorizes imposition of *28 MPA treatment only as a condition of parole, I consider the foundational issue to be whether MPA treatment is only a condition of parole that applies during a defendant's parole period or whether MPA treatment can be imposed on a defendant not as a condition of parole but as part of the sentence that begins one week prior to release on parole and continues potentially for his or her lifetime. If the former, then imposition of MPA treatment as part of a sentence is unauthorized. Section 645, subdivision (a) does not contain any language that expressly resolves this issue. It simply provides that a person who commits a qualifying offense "may, upon parole, undergo [MPA] treatment ...." (§ 645, subd. (a).) However, other section 645 provisions support the conclusion that MPA treatment is only a condition of parole that terminates on or before expiration of a defendant's parole period. Section 645, subdivision (d) provides: "The parolee shall begin [MPA] treatment one week prior to his or her release from confinement in the state prison or other institution and shall continue treatments until the Department of Corrections demonstrates to the [BPT] that this treatment is no longer necessary." (Italics added.) By referring to a person subject to section 645 MPA treatment as a parolee, it appears the Legislature intended MPA treatment to be imposed only on parolees and therefore only as a condition of parole during parolees' parole periods (and one week prior thereto). Furthermore, by requiring MPA treatment to continue until the Department of Corrections (CDC) demonstrates to the BPT that it is no longer necessary, it appears the Legislature intended MPA treatment to continue only so long as the CDC and BPT would normally have supervisory authority or jurisdiction over a parolee. Because the CDC and BPT do not have authority or jurisdiction over a parolee after the parolee's parole period has expired, it is implicit that MPA treatment must cease on or before expiration of his or her parole period. Furthermore, section 645, subdivision (f) provides: "The [CDC] shall administer this section and implement the protocols required by this section...." That provision means the CDC is charged with responsibility to provide the MPA treatment to parolees and otherwise administer or supervise the treatment program. Because the CDC does not have authority or jurisdiction to provide treatment or otherwise supervise persons other than inmates or parolees during their imprisonment and parole periods, it is implicit that the CDC's section 645 administration responsibility applies only during parolees' parole periods (and one week prior thereto) and not after expiration of their parole periods. I conclude that under section 645, MPA treatment is a condition of parole that applies only during a defendant's parole period (and one week prior thereto) and not thereafter. If the Legislature had intended MPA treatment to potentially continue after expiration of a defendant's parole period, it could have so provided in a manner similar to the language in section 290 requiring a sex offender to register with local law enforcement agencies during the offender's lifetime.[4]
*29 D
Because section 645 MPA treatment applies only as a condition of parole, the next issue is when that parole condition may be imposed under section 645, subdivision (a). Foster and the People assert, and the majority concludes, that section 645, subdivision (a) provides for imposition of MPA treatment as a parole condition by a trial court at the time of sentencing. However, section 645, subdivision (a) does not expressly state the time when a trial court is authorized to exercise its discretion to approve MPA treatment as a condition of parole. It simply states: "Any person guilty of a first conviction of any offense specified in subdivision (c) ... may, upon parole, undergo [MPA] treatment or its chemical equivalent, in addition to any other punishment prescribed for that offense or any other provision of law, at the discretion of the court." (§ 645, subd. (a), italics added.) That language can reasonably be construed as authorizing a trial court to approve MPA treatment as a condition of a defendant's parole either (1) on sentencing a defendant, or (2) on the request of the BPT shortly before a defendant's release on parole.
Because the legislative intent of section 645, subdivision (a) is not clear from its text, I consider extrinsic sources and apply other rules of statutory construction to determine that legislative intent. (People v. Coronado, supra, 12 Cal.4th at p. 151, 48 Cal. Rptr. 2d 77, 906 P.2d 1232.) One rule of statutory construction is that a statute generally should be construed in a manner that best harmonizes the statute with other relevant statutes. (Pacific Gas & Electric Co. v. County of Stanislaus, supra, 16 Cal.4th at p. 1152, 69 Cal. Rptr. 2d 329, 947 P.2d 291; People ex rel. Younger v. Superior Court, supra, 16 Cal.3d at p. 40, 127 Cal. Rptr. 122, 544 P.2d 1322; Terhune v. Superior Court, supra, 65 Cal.App.4th at pp. 876-877, 76 Cal. Rptr. 2d 841.)
The Penal Code provides that parole conditions generally are imposed by the BPT. "[T]he Legislature has given the [BPT] expansive authority ... to impose any parole conditions it deems proper. [Citations.]" (Terhune v. Superior Court, supra, 65 Cal.App.4th at p. 874, 76 Cal. Rptr. 2d 841.) Section 3000, subdivision (b)(7) provides: "For purposes of this chapter, the [BPT] shall be considered the parole authority." Section 3053, subdivision (a) provides: "The [BPT] upon granting any parole to any prisoner may also impose on the parole any conditions that it may deem proper." (Italics added.) Section 3000, subdivision (b)(4) provides: "The parole authority [i.e., BPT] shall consider the request of any inmate regarding the length of his or her parole and the conditions thereof." (Italics added.) The BPT normally establishes and imposes conditions of parole shortly before an inmate is released on parole. Section 3000, subdivision (b)(6) reflects that timing, providing: "The [CDC] shall meet with each inmate at least 30 days prior to his or her good time release date and shall provide, under guidelines specified by the parole authority [i.e., BPT], the conditions of parole and the length of parole up to the maximum period of time provided by law. The inmate has the right to reconsideration of the length of parole and conditions thereof by the parole authority...." Furthermore, regulations reflect that the BPT *30 is the "administrative board responsible for setting parole dates, establishing parole length and conditions ...." (Cal.Code Regs., tit. 15, § 2000, subd. (b)(11), italics added.) Also, "[s]pecial conditions [of parole] may be established and imposed by the [CDC] or the [BPT]...." (Id. at § 2513.) Under these statutes and regulations it generally is the responsibility of the BPT, and within its power and authority, to establish conditions for an inmate's parole. (Terhune, supra, at pp. 874, 878, 76 Cal. Rptr. 2d 841; People v. Burgener (1986) 41 Cal. 3d 505, 531, 224 Cal. Rptr. 112, 714 P.2d 1251, disapproved on other grounds in People v. Reyes (1998) 19 Cal. 4th 743, 753;, 80 Cal. Rptr. 2d 734, 968 P.2d 4455 Erwin et al., Cal. Criminal Defense Practice (2002) Parole, § 104.05[4][a], p. 104-34; Levenson, Cal. Criminal Procedure (2000) Parole, §§ 31:2, 31:3, pp. 1183-1184.) One authority notes: "Conditions of parole are specified by the [BPT]. Pursuant to the supervisory power of the state over parolees, the [BPT] may impose any conditions it deems proper, and must impose statutory conditions if applicable." (Levenson, supra, at § 31:7, p. 1187, fns. omitted.) Therefore, unless a statute expressly requires a specific condition of parole, the BPT generally has the power and discretion to impose conditions on an inmate's parole.
Because section 3000 et seq. provides that the BPT generally is charged with the authority to impose conditions of parole, it is consistent with this statutory scheme to construe section 645, subdivision (a) to provide that the BPT has the authority to impose MPA treatment as a condition of parole but, because of the serious nature of MPA treatment, require the BPT to obtain prior court approval of the BPT's imposition of that condition. Because the BPT normally establishes conditions of parole shortly before a defendant's release on parole (see, e.g., §§ 3000, subd. (b), 3053, subd. (a)), if the BPT deems section 645 MPA treatment to be an appropriate condition of a defendant's parole, it could petition a trial court for approval in its discretion of imposition of that condition during the BPT's normal course of establishing conditions of parole for that defendant. The majority's interpretation of section 645, subdivision (a) to provide that MPA treatment may be imposed by the trial court at the time of sentencing conflicts with the general statutory scheme that the BPT is charged with imposing conditions of parole. Under the majority's time of sentencing interpretation, it is the prosecutor, not the BPT, who requests at a defendant's sentencing that the trial court impose MPA treatment as a condition of the defendant's parole.[5] The majority's time of sentencing interpretation, in effect, makes the prosecutor and/or trial court the parole authority, contradicting section 3000, subdivision (b)(7), which provides that the BPT is the parole authority with power to establish and impose conditions of parole. Furthermore, the timing of the imposition of parole conditions at sentencing is drastically different from the statutory scheme. Rather than providing for the imposition of MPA treatment as a parole condition shortly before a defendant's release on parole, the time of sentencing interpretation provides for imposition of a parole condition typically many years before the BPT imposes other conditions of parole. For example, in this case the trial court imposed MPA treatment as a condition of Foster's parole approximately 24 years before the earliest date on *31 which he could be released on parole. It is foreseeable that some defendants who are subject to section 645 may not be released on parole for 40, 50, 60 or more years after their sentencing. It seems premature to establish a discretionary condition of parole like MPA treatment under section 645, subdivision (a) so far in advance of the imposition of other conditions of parole and a defendant's release on parole.
Furthermore, the majority's time of sentencing interpretation of section 645, subdivision (a) is inconsistent with section 645, subdivision (b). The parole conditions imposed by the BPT must include any statutorily required conditions in effect at the time of commencement of parole. (See Levenson, Cal. Criminal Procedure, supra, § 31:7, p. 1187.) For example, section 3053.5 requires a parole condition of abstinence from alcohol use for section 290 sex offenders who have been found to have committed their offenses while intoxicated or addicted to excessive use of alcohol. Section 645, subdivision (b) provides a required MPA treatment parole condition for parolees who have incurred a second conviction of the same specified sex offenses that invoke the application of subdivision (a). However, the statutorily imposed parole conditions are those in effect at the time of commencement of parole. Therefore, had Foster incurred a second conviction for a specified offense, his parole conditions would include MPA treatment only if section 645, subdivision (b) remained in effect at the time of his parole. However, under the time of sentencing interpretation of section 645, subdivision (a), his parole conditions include MPA treatment even if section 645 is not in effect at the time of his parole. I perceive no logical reason to have parole conditions imposed at sentencing if the defendant has a first conviction but imposed only at the time of parole if the defendant has a second conviction. Interpretation of section 645, subdivision (a) to provide for imposition of MPA treatment at the time of imposition of other parole conditions is supported by the rule that a statute should be construed, if possible, to support harmony and consistency with other relevant statutes. (Pacific Gas & Electric Co. v. County of Stanislaus, supra, 16 Cal.4th at p. 1152, 69 Cal. Rptr. 2d 329, 947 P.2d 291; People ex rel. Younger v. Superior Court, supra, 16 Cal.3d at p. 40, 127 Cal. Rptr. 122, 544 P.2d 1322; Terhune v. Superior Court, supra, 65 Cal.App.4th at pp. 876-877, 76 Cal. Rptr. 2d 841.)
A rule of construction is that statutes should be interpreted pragmatically to avoid absurd or bizarre results. (1 Witkin & Epstein, Cal. Criminal Law, supra, §§ 27, 32, pp. 57, 62-63.) The majority's imposition at time of sentencing interpretation of section 645, subdivision (a) has a highly unusual and absurd result. A prosecutor could request, and a trial court could order on that request or sua sponte, MPA treatment as a condition of parole for a defendant who may not be released on parole for many years after sentencing. In contrast, imposition of an MPA treatment parole condition at the time of parole is more pragmatic and more closely follows the usual scheme pursuant to which the BPT establishes and imposes conditions of parole shortly before a defendant is released on parole. (Terhune v. Superior Court, supra, 65 Cal.App.4th at pp. 874, 878, 76 Cal. Rptr. 2d 841; People v. Burgener, supra, 41 Cal.3d at p. 531, 224 Cal. Rptr. 112, 714 P.2d 1251.) The BPT presumably will be in a better position to determine shortly before a defendant's parole whether a defendant should be subject to MPA treatment as a condition of parole than the prosecutor and trial court at the time of the defendant's sentencing. In addition, the purpose of an MPA treatment parole condition is to lessen the probability *32 of reoffense following release from prison. That purpose is best served by evaluation at the time of parole of the defendant and the then available treatments. MPA treatment may be the most effective treatment available now, but it is presumptuous to conclude it will remain so at the time of a defendant's release on parole.
Section 645's legislative history does not provide assistance in construing the ambiguity of section 645, subdivision (a). Neither the majority nor the parties cite, and I am unaware of, any legislative history of section 645 that contradicts a time of parole construction of section 645, subdivision (a). Furthermore, the time of parole construction of section 645, subdivision (a) avoids, at least for the present time, the serious constitutional issue whether MPA treatment is cruel and unusual punishment in violation of the state and federal Constitutions. (People v. Birks, supra, 19 Cal.4th at p. 135, 77 Cal. Rptr. 2d 848, 960 P.2d 1073.) Although both Foster and the People ask this court to decide that issue in this appeal, the time of parole construction of section 645, subdivision (a) avoids a premature determination of that serious issue.
Finally, because both alternative interpretations of the ambiguous language of section 645, subdivision (a) are arguably plausible, the rule of lenity should be applied in this case. The rule of lenity requires that a court construe an ambiguous criminal statute as favorably to the defendant as its language and intent will reasonably permit. (People v. Douglas, supra, 79 Cal.App.4th at p. 815, 94 Cal. Rptr. 2d 500; People v. Prothero, supra, 57 Cal.App.4th at p. 131, 66 Cal. Rptr. 2d 779; In re Christian S., supra, 7 Cal.4th at p. 780, 30 Cal. Rptr. 2d 33, 872 P.2d 574.) A time of parole interpretation of section 645, subdivision (a) is more favorable to a defendant than the majority's alternative time of sentencing interpretation. A defendant normally would prefer to have consideration of imposition of MPA treatment as a parole condition postponed as long as possible before he or she is released on parole. Because a defendant's personal circumstances near the time of his or her release on parole and the then current scientific consensus as to the advisability of MPA treatment may ultimately weigh against a decision to impose MPA treatment as a condition of parole, postponement of that decision from the time of sentencing until shortly before a defendant's release on parole generally would favor the defendant. Also, a defendant may prefer that the BPT, rather than the prosecutor or sentencing trial court, make the initial decision whether MPA treatment should be imposed as a condition of parole, subject to a trial court's discretionary approval of that parole condition. The rule of lenity supports a time of parole construction of section 645, subdivision (a).
I believe section 645, subdivision (a) authorizes the imposition of an MPA treatment parole condition by the BPT in the normal course of the BPT's imposition of other parole conditions, subject to prior court approval obtained shortly before a defendant's release on parole. The majority, the People and Foster do not provide any persuasive support for a contrary construction of section 645, subdivision (a).
At Foster's sentencing the trial court, as part of the sentence, imposed section 645 MPA treatment as a condition of his parole, which apparently could not occur for at least 24 years. However, under the time of parole construction of section 645, subdivision (a), the court did not have jurisdiction or other authority to impose that parole condition at Foster's sentencing. The trial court's discretion to order MPA treatment arises only if and when the BPT petitions the court for approval of imposition *33 of that parole condition shortly before Foster's release on parole.
Although the majority concludes Foster waived his right to appeal the trial court's imposition at his sentencing of section 645 MPA treatment as a condition of his parole, an appellate court may, and I believe should, review any contention that the sentence imposed is unauthorized. "In passing sentence, the [trial] court has a duty to determine and impose the punishment prescribed by law. [Citations.]" (People v. Cattaneo (1990) 217 Cal. App. 3d 1577, 1589, 266 Cal. Rptr. 710.) "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is `clear and correctable' independent of any factual issues presented by the record at sentencing. [Citation.]" (People v. Scott (1994) 9 Cal. 4th 331, 354, 36 Cal. Rptr. 2d 627, 885 P.2d 1040.) "A claim that a sentence is unauthorized ... may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court. [Citations.]" (People v. Dotson (1997) 16 Cal. 4th 547, 554, fn. 6, 66 Cal. Rptr. 2d 423, 941 P.2d 56; see also In re Ricky H. (1981) 30 Cal. 3d 176, 191, 178 Cal. Rptr. 324, 636 P.2d 13; People v. Serrato (1973) 9 Cal. 3d 753, 764, 109 Cal. Rptr. 65, 512 P.2d 289; People v. Martinez (1998) 65 Cal. App. 4th 1511, 1519, 77 Cal. Rptr. 2d 492; People v. Miles (1996) 43 Cal. App. 4th 364, 367, 51 Cal. Rptr. 2d 87.) In People v. Mustafaa (1994) 22 Cal. App. 4th 1305, 28 Cal. Rptr. 2d 172, which involved a guilty plea by the defendant, we noted that a trial court's "fashioning a sentence in a manner [that] is unauthorized by law exceeds the jurisdiction of the court and may be the subject of later review even though no objection was made in the trial court. [Citation.]" (Id. at p. 1311, 28 Cal. Rptr. 2d 172.) In People v. Davis (1981) 29 Cal. 3d 814, 176 Cal. Rptr. 521, 633 P.2d 186, the Supreme Court reversed the trial court's imposition of a sentence that exceeded the punishment authorized by statute, noting it was jurisdictional error that was subject to correction on appeal. (Id. at pp. 827-832, 176 Cal. Rptr. 521, 633 P.2d 186.) Furthermore, Davis concluded the statute was ambiguous and should be interpreted favorably to the defendant. (Id. at pp. 828-832, 176 Cal. Rptr. 521, 633 P.2d 186.)
Because an unauthorized sentence may be corrected on appeal, I disagree with the majority's conclusion that Foster is precluded from challenging the trial court's imposition at his sentencing of section 645 MPA treatment as a condition of his parole. People v. Panizzon (1996) 13 Cal. 4th 68, 51 Cal. Rptr. 2d 851, 913 P.2d 1061 does not support the majority's position because in Panizzon the sentence imposed pursuant to the defendant's plea bargain did not exceed the sentence authorized by statute. (Id. at p. 88, 51 Cal. Rptr. 2d 851, 913 P.2d 1061.) Based on the time of parole construction of section 645, subdivision (a), the trial court imposed an unauthorized sentence Foster may challenge on appeal (U.S. v. Mann (4th Cir.1992) 961 F.2d 493, 496) and this court can correct on appeal (People v. Dotson, supra, 16 Cal.4th at p. 554, fn. 6, 66 Cal. Rptr. 2d 423, 941 P.2d 56).
I conclude the trial court erred by entering the judgment to the extent it imposed at Foster's sentencing section 645 MPA treatment as a condition of Foster's parole. I would modify the judgment by striking the trial court's order imposing section 645 MPA treatment as a condition of Foster's parole.
NOTES
[*] Kennard, J., and Moreno, J., dissented.
[1] All statutory references are to the Penal Code unless otherwise specified.
[2] MPA treatment on males generally has the effect of lowering their testosterone hormone levels, resulting in reduced sexual urges. (People v. Gauntlett (1984) 134 Mich.App. 737, 352 N.W.2d 310, 314-315; Gimino, Mandatory Chemical Castration for Perpetrators of Sex Offenses Against Children: Following California's Lead (1997) 25 Pepperdine L.Rev. 67, 73-75.) MPA treatment is commonly referred to as hormone suppression treatment or "chemical castration." (Gimino, supra, at pp. 74-75; Gauntlett, supra, at p. 315.)
[3] Because both parties restricted their discussions in their appellate briefs to the issue of whether MPA treatment is cruel and unusual punishment under the state and federal Constitutions, we requested, and the parties submitted, supplemental briefing on the issue of "whether Penal Code section 645, subdivision (a) should be interpreted as authorizing the Board of Prison Terms to apply, shortly before a defendant is released from prison on parole, to the trial court for an order imposing as a condition of the defendant's parole the treatment specified in that statute." Both parties assert in their supplemental briefs that section 645, subdivision (a) should not be interpreted in this manner.
[4] Section 290 provides: "(a)(1)(A) Every person described in paragraph (2), for the rest of his or her life while residing in ... California ... shall be required to register with the chief of police of the city in which he or she is residing...." (Italics added.) Section 290 provides that a sex offender's parole shall be revoked by the parole authority if he or she fails to register as required. (§ 290, subd. (h).) Section 290 also provides that a felony sex offender's willful failure to register as required constitutes a felony offense punishable by a prison term of up to three years. (§ 290, subd. (g)(2).) Therefore, section 290's registration requirement is not only a condition of parole but also is an independent requirement that applies after expiration of the parole period. In contrast, section 645 does not provide for MPA treatment for a defendant's lifetime or create a separate offense for refusing treatment. Therefore, it is implicit that under section 645 MPA treatment may be required only as a condition of parole during a defendant's parole period (and one week prior thereto).
[5] It is also possible under the time of sentencing interpretation that the trial court, on sentencing a defendant, could sua sponte impose MPA treatment as a condition of the defendant's parole. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260792/ | 124 Cal.Rptr.2d 765 (2002)
101 Cal.App.4th 1256
The PEOPLE, Plaintiff and Respondent,
v.
Jason Lamont TROTTER, Defendant and Appellant.
No. B149459.
Court of Appeal, Second District, Division Seven.
September 4, 2002.
As Modified September 24, 2002.
Review Granted November 20, 2002.
Review Dismissed May 14, 2003.
*766 Carl M. Hancock, under appointment by the Court of Appeal, Chula Vista, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin, Supervising Deputy Attorney General, and Jeffrey B. Kahan, Deputy Attorney General, for Plaintiff and Respondent.
JOHNSON, Acting P.J.
Jason Lamont Trotter appeals from the judgment entered following a jury trial resulting in his convictions of second degree robbery and attempted second degree *767 robbery, with findings of personal use of a firearm.[1] Appellant contends the trial court abused its discretion when it discharged a holdout juror. We agree, and further agree the error was prejudicial. However, we do not agree with appellant's contention double jeopardy bars retrial in this case. Accordingly, we reverse the judgment and remand for new trial.
FACTS AND PROCEEDINGS BELOW
On September 18, 2000, Peralta, his cousin and two friends were driving in Peralta's Oldsmobile Cutlass in the Jordan Downs Housing Development. Appellant and a companion approached and, at gun-point, took the men's money, Peralta's radio and a speaker box and two amplifiers Peralta had in his trunk.
On October 20, 2000, appellant and six or seven other youths took $180 and a wallet from Roberto Cavistan as Cavistan was entering his apartment in the Jordan Downs Housing Development. During the robbery, one of the youths pointed a revolver at Cavistan. Cavistan's daughter observed the robbery and telephoned the police. Within minutes, Los Angeles Police Officer Peter Bueno and his partner chased seven youths they saw coming from the area of Cavistan's apartment. The youths dispersed during the pursuit, but Bueno apprehended appellant as he pounded on an apartment door seeking entry. When Bueno handcuffed him appellant said, "What the fuck you putting handcuffs on me? I wasn't even over there." Another officer saw appellant with other youths minutes earlier hunched over $50 in cash in a bandana. Cavistan was threatened and did not identify appellant during the trial.
During jury deliberations, the jury fore person sent out three inquires to the court:
"We, the jury in the above entitled action, request the following: [¶] Advice/instruction/direction from the judge about resolving a hung jury. [¶] Most of us are convinced beyond a reasonable doubt, but the opposition is from a position of `not enough facts to convince beyond a shadow of a doubt,' and is willing to leave it at thata hung jury. The majority does not want to leave it at that.
"May [sic] members of the jury ask questions of the judge (in presence of all jurors) about concerns they may have regarding any aspect of the deliberations thus far?
"We are at an impasse. Some of the majority feels there is a failure to deliberate and possibly other factors that are impacting the process. Maybe a clarification of the word `deliberation' is necessary."
The court read the foreperson's inquiries and discussed them with counsel. In open court the court then asked the jury foreperson to explain the jury's questions.
The foreperson replied: "I think that what that means is we feel that the central issues that are important to us are not being addressed by the opposing view point."
The court asked if in the foreperson's opinion there was a disagreement as to the facts, as distinguished from a failure to discuss the evidence and find the facts from the evidence. The foreperson replied, "[A] little bit of both." The foreperson added the minority "view" was relying upon "[s]uppositions and generalities coming in from life experience ... perhaps." The foreperson said the minority "view" had some doubt about the evidence, and then these "other factors come in."
*768 The court defined "deliberation" for the jury. Then the court inquired of all the jurors if what was going on was a failure to deliberate. The court specified it wished just a yes or no answer from each juror. Four of the jurors replied he or she was not certain or did not know. Three jurors said no. Six jurors said yes.
The court sent the remaining eleven jurors into the jury room and inquired of the foreperson alone. The court inquired how many jurors were involved. The foreperson said there was only one dissenting juror. The court observed the jury had been deliberating for approximately a day and a half. The court inquired how many ballots were taken.
The foreperson replied the jury had taken one formal ballot. But the vote had not changed since almost from the very beginning of deliberations. Two of the three persons who had originally voted not guilty had changed their votes to guilty. But for seven or eight hours, just the one minority juror remained in favor of a not guilty verdict. The foreperson asked to relate examples to the court to illustrate the one juror's failure to deliberate.
The court declined. The court said it did not want to unduly interfere in deliberations. The court explained it was attempting to determine if there was a failure to deliberate or an honest difference of opinion. The court commented the foreperson had already indicated his opinion there was a failure to deliberate in good faith.
The foreperson said: "I believe so. Although the person in question does not believe that." The foreperson said, "She's emphatically opposed to that idea." The foreperson added: "So what it comes down to islet's seethis one person has flipflopped on several issues."
The court interrupted and asked which juror was the minority juror. The foreperson replied Juror No. 12. The foreperson said deliberations were at a standstill and there was no reason for further deliberations if Juror No. 12 remained on the jury. The foreperson also said other jurors could not persuade Juror No. 12 to tell them what was wrong with the majority's logic.
The court asked, "She's not sharing with you what her thoughts are?" The foreperson replied: "Her thoughts are the evidence is too weak. That's it." The court said: "[Y]ou've just demonstrated by crossing your arms across your chest emphatically. But she's not going through each element by element?" The foreperson said: "She won't do that. We've gone though it at least 20 times." The court said, "And she won't participate in that situation." The foreperson replied, "Not to a reasonable degree."
The court then questioned Juror No. 12 out of the presence of the other jurors. The court told Juror No. 12 it was inquiring whether the juror was participating in deliberations. In reply to each of the court's inquiries, the juror repeated she was deliberating.
The court and counsel then discussed the issue out of the presence of the jurors. Defense counsel took the position there was no ground for dismissing the juror because the impasse was the result of a difference of opinion as to the strength of the evidence. The prosecutor and court commented they had concluded from the foreperson's comments the juror was not deliberating.
The court had Juror No. 12 return to court and excused her. The court substituted in one of the alternate jurors for Juror No. 12. The jury recommenced deliberations at 2:07 p.m. that afternoon. *769 Later in the afternoon, the jury returned with a guilty verdict.
DISCUSSION
I. THE TRIAL COURT ERRED IN DISMISSING THE HOLDOUT JUROR WITHOUT GOOD CAUSE.
The People agree with appellant's claim the court improperly dismissed Juror No. 12. So do we.
"The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge. A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views."[2]
In this case, the juror participated in deliberations for a number of hours. She flip-flopped on several issues, then took a fixed position the evidence did not persuade her appellant was guilty. A more concrete demonstration of misconduct than is found here is required before the court may dismiss a juror for a failure to deliberate.[3] Moreover, removing the only juror who was unpersuaded the evidence warranted a guilty vote was clearly prejudicial to appellant and requires reversal of the judgment.[4]
The issue remains whether principles of double jeopardy bar retrial.
II. PRINCIPLES OF DOUBLE JEOPARDY DO NOT BAR RETRIAL IN THIS CASE.
Appellant argues the court's improper substitution of an alternate for an original juror was without "legal necessity" or his consent and as a result double jeopardy bars retrial. Appellant likens the improper substitution of the juror with an alternate to declaring a mistrial and dismissing the jury without legal necessity, a situation which established law holds bars retrial on double jeopardy grounds.[5] The People argue what occurred in this case was not the equivalent of an erroneous declaration of mistrial and dismissal of the jury prior to verdict. Instead, they argue substitution of the juror without legal cause constituted trial error which appellant succeeded in having reversed on appeal, a situation in which double jeopardy is inapplicable.
Both the United States and California Constitutions prohibit placing a defendant twice in jeopardy for the same offense.[6] The double jeopardy clause *770 "protect[s] an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.... The underlying idea, one that is deeply ingrained in at least the Anglo American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."[7] Double jeopardy also prevents the prosecution from gaining an advantage to supply evidence it did not present in the first proceeding by allowing it to do so in a second proceeding.[8]
Jeopardy initially attaches when a court impanels and swears in the jury, including original and alternate jurors.[9] Penal Code section 1089 authorizes the substitution of an alternate juror before or after final submission of the case to the jury on a showing of good cause.[10] If a court substitutes an alternate juror for an original juror for good cause, and thus in compliance with Penal Code section 1089, no question of double jeopardy arises.[11]
On the other hand, "discharge of that jury without a verdict is equivalent in law to an acquittal and bars a retrial, unless the defendant consented thereto or legal necessity required it." [12] In California, "legal necessity" for a mistrial "typically arises from an inability of the jury to agree [citations] or from physical causes beyond the control of the court; [citations], such as the death, illness, or absence of judge or juror [citations] or of the defendant [citations]. A mere error of law or procedure, however, does not constitute legal necessity. [Citations.]"[13]
*771 Three appellate decisions have discussed the double jeopardy consequences of dismissing a juror without good cause.
In People v. Young,[14] jury selection ended in the morning with the selection of 12 jurors and two alternates. In the afternoon, the trial court discovered one of the original jurors was a social friend of a defense witness. Over defense objection, the court allowed the prosecution to exercise a peremptory challenge to excuse the juror. The replacement juror was not one of the alternates, but was instead called from the general venire. The appellate court held there was no good cause under Penal Code section 1089 to reject the original juror. The court also found error in permitting the prosecutor to exercise a preemptory challenge after the jury had already been empanelled and sworn.[15] "The condition of this juror's mind was not such as to entitle the People to reject him for cause at any time...."[16] The court also found it "equally clear that the jury having been completed and regularly impaneled and sworn before the peremptory challenge was allowed, this appealing defendant was in jeopardy."[17] The court held double jeopardy had attached prior to removing the original juror and replacing him with a juror from the general venire. Thus, proceeding to trial with this reformulated jury, including a juror not selected by him, placed the defendant twice in jeopardy. Accordingly, the court reversed the defendant's conviction and ordered him discharged.[18]
The court in People v. Burns[19] reached the opposite conclusion. The Burns court held double jeopardy did not apply because, although an original juror had been excused without cause, a previously selected alternate replaced the excused juror. In Burns, after the parties selected 12 jurors and one alternate, the court discovered one of the original jurors had criminal charges pending against him in the same court. Over defense objection, the trial court dismissed the juror even though the juror claimed he could remain impartial. After the jury returned a guilty verdict, the defendant appealed, claiming the improper discharge of the juror placed him before two different juries which in turn placed him twice in jeopardy.[20]
The appellate court first conceded the trial court's error in excusing the juror in this case constituted an irregularity in the proceedings, and thus "not in the purview of section 1089."[21] However, the appellate court concluded the alternate juror was part of the same jury and therefore the defendant had not been subjected to two different juries and double jeopardy did not apply to bar retrial.[22] The court reasoned, "a verdict by 12 jurors, one of whom was originally an alternate juror, is the verdict of the jury originally sworn to try the case. If the substitution of the *772 alternate for one of the regular jurors is in accordance with the provisions of Penal Code, section 1089 no question of double jeopardy would arise. This can only be true if the substitution of the alternate for the regular juror does not destroy the unity of the jury. It does not destroy the unity of the jury because the jury is not complete until the alternate is accepted and sworn and the alternate is at all times a potential member of the regular jury. The requirement of trial by one jury is satisfied, where a jury composed of 12 regular jurors and one or more alternates has been impaneled, if the verdict is returned by 12 jurors sworn to try the case although one or more alternates may be included in the jury which renders the verdict. If this is true where the substitution has been made in the manner provided by Penal Code, section 1089 it must be true where it has been made in an irregular manner. The same number of jurors sworn to try the case in the same way are involved in either instance. Either the substitution of an alternate for a regular juror destroys the unity of the jury or it does not. If it does not destroy the unity of the jury as is settled by the Peete and Howard[23] cases, then the substitution of an alternate for a regular juror in an unauthorized manner does not place the defendant twice in jeopardy but is merely an error of law which should not lead to a reversal in the absence of a showing that it has resulted in a miscarriage of justice...."[24]
The court distinguished the decision in Young on the ground the selection of the substitute juror from the general venire destroyed jury unity and effectively created separate juries.[25] Employing a harmless error analysis, the Burns court observed "[t]here is no claim of insufficiency of the evidence; there is no claim of error in the admission or rejection of evidence or in the giving or refusing of instructions .... We are satisfied that no miscarriage of justice resulted from the irregularity complained of."[26] Accordingly, the court affirmed the defendant's conviction.
The court in People v. Burgess[27] also found double jeopardy inapplicable. It so found even though it concluded the trial court's action in reopening voir dire to permit the prosecution to exercise a preemptory challenge after the jury and alternates had been sworn, "clearly prohibited by statute."[28] In Burgess after selection of original and alternate jurors, an original juror informed the; court she was biased against a city department, but her feelings were "pretty much limited to that department." The trial court observed this was an insufficient ground to *773 remove the juror for cause. Nevertheless, the court "reopened" jury selection over defense objection to allow both parties to exercise a peremptory challenge. The prosecutor used his challenge to excuse the juror in question, and an alternate replaced the juror.[29] On appeal, the defendant argued discharge of the juror placed him twice in jeopardy. The appellate court held the use of a peremptory challenge after jury selection was improper because no good cause existed to excuse the juror under Penal Code section 1089. The court observed double jeopardy protects against a second prosecution or multiple punishments for the same offense after acquittal and conviction, as well as against retrial after the improper declaration of a mistrial.[30] Comparing the improper juror substitution with those situations, the court held there was "no meaningful deprivation or violation of those protections or policies.... There was no former conviction or acquittal, and no unauthorized mistrial. Although the erroneous substitution of a regular juror with an alternate may be prejudicial under many circumstances, it is not the equivalent of a mistrial."[31] Agreeing with Burns, the court held "error in discharging the regular juror did not place the defendant twice in jeopardy, but was an error of law subject to harmless error analysis."[32]
Like Burns, the Burgess courts distinguished Young on the ground the substitute juror in Young came from the general venire and was not a regularly selected alternate.[33]
The California Supreme Court has not expressly addressed the issue whether double jeopardy bars retrial when an original juror is improperly replaced with an alternate juror over a defendant's objection.[34]*774 Although the court in People v. Hamilton[35] did not address the double jeopardy issue, it is instructive because it presented a situation analogous to the one in the case at bar. In Hamilton a juror expressed misgivings about the death penalty and was dismissed during deliberations and replaced with an alternate. The Hamilton court found the "dismissal of this juror was error and in violation of the restrictions imposed by section 1089...."[36] The court further found the juror's "disqualification could only be beneficial to the prosecution and prejudicial to the defense."[37] The court thus reversed the judgment of death and remanded the matter for a retrial of the penalty phase.[38]
Similarly, in People v. Cleveland[39] the Supreme Court found erroneously excusing a holdout juror during deliberations and replacing him with an alternate to be prejudicial error. Citing its decision in People v. Hamilton, the Cleveland court found the error thus required reversal of the judgment. The court did not consider possible double jeopardy implications of the error.[40]
We are persuaded when a trial court errs in applying Penal Code section 1089 and a juror is improperly removed, the unity of the originally selected jury is not destroyed-provided the replacement juror is a regularly selected alternate. When a regularly selected alternate replaces the dismissed juror it will not as a general rule impact on a defendant's right to a chosen jury.[41] This case is such an example. Here the trial court erroneously concluded the holdout juror was unable to perform her duties as a juror within the meaning of Penal Code section 1089.[42] The court replaced this juror with a regularly selected alternate. The alternate observed the same proceedings, took the same oath, and was bound by the same orders and admonitions of the trial court.[43] While an improper discharge of the entire jury would invoke the bar of double jeopardy, the improper discharge of this one juror for allegedly failing to deliberate did *775 not discharge the jury as a whole prior to verdict, and thus does not implicate double jeopardy principles, where, as here, the substituted juror is a duly sworn alternate selected with the other jurors before trial.[44] The substituted alternate was part of the same jury, and thus the particular tribunal chosen to try appellant remained complete.[45] For these reasons, the substitution was not equivalent to an erroneous declaration of a mistrial and discharge of the entire jury prior to verdict because the defendant's selected jury remained intact until verdict. Instead, replacing the juror with an alternate without good cause under Penal Code section 1089 was in this case a form of trial error. Accordingly, the error is subject to harmless error analysis.[46]
Appellant has appealed his conviction, and has successfully demonstrated such error was prejudicial, requiring reversal. In this circumstance double jeopardy does not bar retrial.[47]
Double jeopardy's general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside because of trial error.[48] "While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of Justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous *776 as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants' rights as well as society's interest...."[49]
DISPOSITION
The judgment is reversed and the cause remanded for new trial.
We concur: WOODS, and PERLUSS, JJ.
NOTES
[1] Penal Code sections 211, 664/211, 12022.53, subdivision (b).
[2] People v. Cleveland (2001) 25 Cal.4th 466, 485, 106 Cal.Rptr.2d 313, 21 P.3d 1225.
[3] People v. Cleveland, supra, 25 Cal.4th 466, 486, 106 Cal.Rptr.2d 313, 21 P.3d 1225.
[4] People v. Hamilton (1963) 60 Cal.2d 105, 128, 32 Cal.Rptr. 4, 383 P.2d 412, disapproved on other grounds in People v. Daniels (1991) 52 Cal.3d 815, 866, 277 Cal.Rptr. 122, 802 P.2d 906 and People v. Morse (1964) 60 Cal.2d 631, 648-649, 36 Cal.Rptr. 201, 388 P.2d 33.
[5] Crist v. Bretz (1978) 437 U.S. 28, 35, 98 S.Ct. 2156, 57 L.Ed.2d 24; Curry v. Superior Court (1970) 2 Cal.3d 707, 713-714, 87 Cal. Rptr. 361, 470 P.2d 345.
[6] United States Constitution 5th Amendment; California Constitution, article I, section 15; Benton v. Maryland (1969) 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 [5th Amendment applies to states via the 14th Amendment].
[7] United States v. DiFrancesco (1980) 449 U.S. 117, 127-128, 101 S.Ct. 426, 66 L.Ed.2d 328, citing Green v. United States (1957) 355 U.S. 184, 187-188, 78 S.Ct. 221, 2 L.Ed.2d 199.
[8] United States v. DiFrancesco, supra, 449 U.S. 117, 128, 101 S.Ct. 426, 66 L.Ed.2d 328.
[9] United States v. DiFrancesco, supra, 449 U.S. 117, 128, 101 S.Ct. 426, 66 L.Ed.2d 328; see Crist v. Brett, supra, 437 U.S. 28, 35, 98 S.Ct. 2156, 57 L.Ed.2d 24 ["The reason for holding that jeopardy attaches when the jury is empanelled and sworn lies in the need to protect the interest of an accused in retaining a chosen jury." Thus, the Court found unconstitutional Montana's law providing jeopardy did not attach until the first witness was sworn.]; In re Mendes (1979) 23 Cal.3d 847, 853, 153 Cal.Rptr. 831, 592 P.2d 318; Curry v. Superior Court, supra, 2 Cal.3d 707, 712, 87 Cal.Rptr. 361, 470 P.2d 345.
[10] Penal Code section 1089 provides in pertinent part: "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his duty, or if a juror requests a discharge and good cause appears therefor, the court may order him to be discharged and draw the name of an alternate, who shall then take his place in the jury box, and be subject to the same rules and regulations as though he had been selected as one of the original jurors."
[11] In re Mendes, supra, 23 Cal.3d 847, 853, 153 Cal.Rptr. 831, 592 P.2d 318, citing People v. Burns (1948) 84 Cal.App.2d 18, 33, 189 P.2d 868; People v. Collins (1976) 17 Cal.3d 687, 696-697, 131 Cal.Rptr. 782, 552 P.2d 742.
[12] Curry v. Superior Court, supra, 2 Cal.3d 707, 712, 87 Cal.Rptr. 361, 470 P.2d 345; Green v. United States, supra, 355 U.S. 184, 188, 78 S.Ct. 221, 2 L.Ed.2d 199 [requiring defendant's consent or legal necessity protects against the government discontinuing trial when it appears the jury may not convict].
[13] Curry v. Superior Court, supra, 2 Cal.3d 707, 713-714, 87 Cal.Rptr. 361, 470 P.2d 345.
[14] People v. Young (1929) 100 Cal.App. 18, 279 P. 824.
[15] People v. Young, supra, 100 Cal.App. 18, 19, 21, 279 P. 824.
[16] People v. Young, supra, 100 Cal.App. 18, 21, 279 P. 824.
[17] People v. Young, supra, 100 Cal.App. 18, 23, 279 P. 824.
[18] People v. Young, supra, 100 Cal.App. 18, 23-24, 279 P. 824.
[19] People v. Burns, supra, 84 Cal.App.2d 18, 189 P.2d 868.
[20] People v. Burns, supra, 84 Cal.App.2d 18, 20-22, 189 P.2d 868.
[21] People v. Burns, supra, 84 Cal.App.2d 18, 29, 189 P.2d 868.
[22] People v. Burns, supra, 84 Cal.App.2d 18, 25-26, 189 P.2d 868.
[23] People v. Peete (1921) 54 Cal.App. 333, 366, 202 P. 51 [ill juror replaced for cause with alternate was trial "by a jury of twelve in every essential particular"]; People v. Howard (1930) 211 Cal. 322, 295 P. 333 [replacing juror with an alternate just prior to deliberations held to be irregular yet ultimately affirmed the judgment of conviction as modified].
[24] People v. Burns, supra, 84 Cal.App.2d 18, 32-33, 189 P.2d 868, cited with approval in In re Mendes, supra, 23 Cal.3d 847, 853, 855, 153 Cal.Rptr. 831, 592 P.2d 318 [rejecting the defendant's double jeopardy challenge where trial court had permitted the prosecutor to peremptorily challenge a sworn juror during selection of alternates, reasoning "jury selection in its entirety was not completed prior to the swearing of the alternate jurors," and thus jeopardy had not yet attached].
[25] People v. Burns, supra, 84 Cal.App.2d 18, 31, 189 P.2d 868.
[26] People v. Burns, supra, 84 Cal.App.2d 18, 33, 189 P.2d 868.
[27] People v. Burgess (1988) 206 Cal.App.3d 762, 253 Cal.Rptr. 828.
[28] People v. Burgess, supra, 206 Cal.App.3d 762, 766, 253 Cal.Rptr. 828.
[29] People v. Burgess, supra, 206 Cal.App.3d 762, 764-765, 253 Cal.Rptr. 828.
[30] People v. Burgess, supra, 206 Cal.App.3d 762, 766-767, 253 Cal.Rptr. 828.
[31] People v. Burgess, supra, 206 Cal.App.3d 762, 768, 253 Cal.Rptr. 828, italics added.
[32] People v. Burgess, supra, 206 Cal.App.3d 762, 768, 253 Cal.Rptr. 828. The Burgess court's conclusion is somewhat troubling given its factual circumstances. There the erroneous substitution of the original juror was not the result of a good faith error in applying Penal Code section 1089. Instead, and although the trial court acknowledged the juror's bias was an insufficient ground to remove the juror under Penal Code section 1089, it "permitted the prosecution to peremptorily challenge a specific juror and substitute an alternate after the entire jury, including the alternates, had been empanelled and sworn." (People v. Burgess, supra, 206 Cal.App.3d 762, 766, 253 Cal.Rptr. 828.) The appellate court expressly found "[s]uch practice [] clearly prohibited by statute." (Ibid.) Nevertheless, the appellate court found double jeopardy did not apply.
We question whether double jeopardy should not bar retrial when a trial court alters the composition of the jury without legal necessity, or good cause, and also not as a result of a good faith error in applying Penal Code section 1089, but for some other impermissible reason. A reformulated jury under these circumstances may well impinge on a defendant's interest in retaining a chosen jury (Crist v. Bretz, supra, 437 U.S. 28, 35, 98 S.Ct. 2156, 57 L.Ed.2d 24) and the right to a fair and impartial jury rather than one selected by the prosecution (People v. Young, supra, 100 Cal.App. 18, 23, 279 P. 824). However, this combination of factual circumstances is not present in the case at bar. Accordingly, we need not, and do not, resolve these issues.
[33] People v. Burns, supra, 84 Cal.App.2d 18, 31-32, 189 P.2d 868; People v. Burgess, supra, 206 Cal.App.3d 762, 768, 253 Cal.Rptr. 828.
[34] See People v. Collins, supra, 17 Cal.3d 687, 696-697, 131 Cal.Rptr. 782, 552 P.2d 742 ["Defendant's contention that he was placed twice in jeopardy by the substitution of an alternate juror without legal necessity or his consent need not be addressed. The discharge of the juror for good cause amounted to a legal necessity."] Finding the error in failing to instruct the reconstituted jury to begin deliberations anew to be harmless, the court affirmed the defendant's judgment of conviction.
[35] People v. Hamilton, supra, 60 Cal.2d 105, 32 Cal.Rptr. 4, 383 P.2d 412.
[36] People v. Hamilton, supra, 60 Cal.2d 105, 126, 32 Cal.Rptr. 4, 383 P.2d 412.
[37] People v. Hamilton, supra, 60 Cal.2d 105, 128, 32 Cal.Rptr. 4, 383 P.2d 412.
[38] People v. Hamilton, supra, 60 Cal.2d 105, 138, 32 Cal.Rptr. 4, 383 P.2d 412.
[39] People v. Cleveland, supra, 25 Cal.4th 466, 486, 106 Cal.Rptr.2d 313, 21 P.3d 1225.
[40] This issue is currently pending in People v. Hernandez (2002) 95 Cal.App.4th 1346, 116 Cal.Rptr.2d 379, review granted May 15, 2002 (S105271); People v. Smith (B133309), review granted June 19, 2002 (S106273); and People v. Du (B110122), review granted June 19, 2002 (S106740); and a petition for review is pending in People v. Alas (2002) 100 Cal. App.4th 293, 122 Cal.Rptr.2d 467
[41] Compare Crist v. Bretz, supra, 437 U.S. 28, 35, 98 S.Ct. 2156, 57 L.Ed.2d 24; Curry v. Superior Court, supra, 2 Cal.3d 707, 712, 87 Cal.Rptr. 361, 470 P.2d 345.
[42] Penal Code section 1089; see footnote 11, ante.
[43] See People v. Collins, supra, 17 Cal.3d 687, 693-694, 131 Cal.Rptr. 782, 552 P.2d 742; People v. Burns, supra, 84 Cal.App.2d 18, 25-26, 189 P.2d 868.
[44] See People v. Burgess, supra, 206 Cal. App.3d 762, 768-769, 253 Cal.Rptr. 828; People v. Burns, supra, 84 Cal.App.2d 18, 32-33, 189 P.2d 868.
[45] See People v. Burns, supra, 84 Cal.App.2d 18, 32-33, 189 P.2d 868.
[46] See People v. Hamilton, supra, 60 Cal.2d 105, 120, 32 Cal.Rptr. 4, 383 P.2d 412; compare, People v. Burgess, supra, 206 Cal.App.3d 762, 769, 253 Cal.Rptr. 828 [applying harmless error analysis]; People v. Bums, supra, 84 Cal.App.2d 18, 32-33, 189 P.2d 868 [applying harmless error analysis].
[47] United States v. Ball (1896) 163 U.S. 662, 672, 16 S.Ct. 1192, 41 L.Ed. 300["[I]t is quite clear that a defendant, who procures a judgment against him ... to be set aside, may be tried anew . . ., for the same offense of which he had been convicted. [Citations.] The court therefore rightly overruled [the] plea of former jeopardy. . . ."]; United States v. Tateo (1964) 377 U.S. 463, 465, 84 S.Ct. 1587, 12 L.Ed.2d 448 [retrial allowed after reversal based upon trial error]; People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 72, 2 Cal. Rptr.2d 389, 820 P.2d 613 ["Should a defendant secure reversal on appeal, . . ., criminal proceedings are subject to reinstatement."]; People v. Murphy (1963) 59 Cal.2d 818, 833, 31 Cal.Rptr. 306, 382 P.2d 346 [unqualified reversal of conviction remands cause for new trial and places defendants in trial court in same position as if cause had never been tried]; Penal Code section 1262 ["If a judgment against the defendant is reversed, such reversal shall be deemed an order for a new trial, unless the appellate court shall otherwise direct."].
[48] United States v. Ball, supra, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 [retrial permissible following reversal of conviction on direct appeal]; United States v. Tateo, supra, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 [retrial permissible when conviction declared invalid on collateral attack].
[49] United States v. Tateo, supra, 377 U.S. 463, 466, 84 S.Ct. 1587, 12 L.Ed.2d 448 [permitting retrial where the trial court had improperly coerced the defendant into pleading guilty].
Burks v. United States (1978) 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 represents a significant exception to the general rule that double jeopardy does not bar retrial of a defendant who has succeeded in getting his conviction set aside because of trial error. In Burks the United States Supreme Court held double jeopardy bars retrial when a defendant's conviction is reversed on the sole ground the evidence was insufficient to sustain the jury's verdict. (Burks v. United States, supra, 437 U.S. 1, 18, 98 S.Ct. 2141, 57 L.Ed.2d 1; see also, United States v. Scott (1978) 437 U.S. 82, 90-91, 98 S.Ct. 2187, 57 L.Ed.2d 65 ["The successful appeal of a judgment of conviction, on any ground other than the sufficiency of the evidence to support the verdict ... poses no bar to further prosecution on the same charge"]; compare, Lockhart v. Nelson (1988) 488 U.S. 33, 38-39, 109 S.Ct. 285, 102 L.Ed.2d 265 [permitting retrial eilthough erroneously admitted evidence supplied the substantial evidence to support the conviction].) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260801/ | 125 Cal.Rptr.2d 115 (2002)
101 Cal.App.4th 967
Eugene GUTKIN, Plaintiff and Appellant,
v.
UNIVERSITY OF SOUTHERN CALIFORNIA, etc., et al., Defendants and Respondents.
No. B152707.
Court of Appeal, Second District, Division Two.
September 9, 2002.
Rehearing Denied October 9, 2002.
Review Denied December 11, 2002.
*117 E. Lyn Lemaire, Topanga, for Plaintiff and Appellant.
Paul, Hastings, Janofsky & Walker, J. Al Latham, Jr., and Christina L. McEnerney, for Defendants and Respondents.
*116 DOI TODD, J.
Appellant Eugene Gutkin brought a civil action for damages to challenge the revocation of his tenure and termination of his employment as a tenured professor of mathematics at the University of Southern California (the University). He appeals the trial court's orders dismissing individual defendants, sustaining demurrers to five of his seven causes of action without leave to amend, and his own dismissal of the remainder of the complaint. Gutkin also appeals the trial court's orders compelling further responses to discovery and production of documents and for monetary sanctions, denying his ex parte application for modification and postponement of the discovery orders, and denying his motion for leave to amend the complaint. We affirm the judgment. We hold that the trial court properly sustained respondents' demurrers, and did not abuse its discretion in denying leave to amend because Gutkin failed to challenge the University's tenure and grievance procedure by way of administrative mandamus. We further hold that Gutkin is not entitled to appellate review of his voluntary dismissal of the action or the trial court's post-demurrer orders compelling further production of documents and awarding monetary sanctions against Gutkin, denying his ex parte application, and denying his motion for leave to amend.
*118 I
FACTUAL AND PROCEDURAL BACKGROUND
Gutkin's complaint alleged that he was a tenured professor of mathematics at the University. In the wake of a dispute over the University's requirement that Gutkin teach extra classes to "make up" for classes he had not been able to teach in the fall 1995 semester, the University initiated dismissal proceedings against Gutkin in October 1996. But Gutkin's dismissal hearing was not scheduled to take place until early December 1998, because, according to Gutkin, "[i]t took [the University] longer than anticipated to effectuate the deceptive alterations to the [faculty] [h]andbook" that would govern the "rigged [dismissal] procedures," and the University "dragged its feet." Gutkin further alleged that by December 1998, "[the University] had not finished its tampering, so the deceptively altered [h]andbook was not ready for posting on the Internet by the time of the scheduled hearing.... Consequently, [the University] unilaterally postponed the hearing until February 26, 1999."
The dismissal procedure outlined in the faculty handbook required a hearing before a panel of Gutkin's faculty peers. According to Gutkin, the panel selection process set out in the revised faculty handbook constituted a "charade of impartiality" that resulted in a "sham dismissal procedure." In March 1999, the faculty panel issued a recommendation to the president of the University that found that Gutkin had engaged in "serious neglect of duty," a ground for termination in the faculty handbook. The president of the University terminated Gutkin in March 2000 for "serious neglect of duty," as found by the faculty panel.
A. The complaint.
Gutkin filed his complaint on January 31, 2001, naming as defendants the University and four individuals: Dr. Joseph Aoun, Dr. Robert Guralnick, Dr. Susan Montgomery, and Dr. Wayne Raskind. The complaint set forth seven causes of action: (1) fraud and deceit; (2) breach of contract; (3) wrongful termination in violation of public policy; (4) age discrimination; (5) defamation; (6) intentional infliction of emotional distress; and (7) intentional interference with prospective economic advantage.
Gutkin asserted all seven causes of action against the University. In addition, he alleged his fifth cause of action for defamation and his seventh cause of action for intentional interference with contract and prospective economic advantage against Aoun, Montgomery, and Guralnick; his sixth cause of action for intentional infliction of emotional distress against all four individuals; and his seventh cause of action for intentional interference with contract and prospective economic advantage against Aoun, Montgomery, and Guralnick.
B. The demurrers.
Respondents demurred, requesting dismissal of the first, second, fifth, sixth, and seventh causes of action in the complaint on the ground that Gutkin's exclusive judicial remedy as to those claims was administrative mandamus under Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716, 53 Cal.Rptr.2d 662 (Pomona College). Gutkin, they argued, had failed to exhaust his administrative remedies, and all of those claims were barred.
On May 1, 2001 the trial court ruled on the demurrers:
(1) The University's demurrers to the first cause of action for fraud and deceit, the second cause of action for breach of *119 contract, the sixth cause of action for intentional infliction of emotional distress, and the seventh cause of action for intentional interference with prospective economic advantage were sustained without leave to amend.
(2) Raskind's demurrer to the sixth cause of action (the only one asserted against him) was sustained without leave to amend.
(3) The University and Aoun's demurrers to the fifth cause of action for defamation were sustained without leave to amend.
(4) Montgomery and Guralnick's demurrers to the sixth and seventh causes of action were sustained without leave to amend. As to the fifth cause of action for defamation, Montgomery and Guralnick's demurrers were sustained with leave to amend the allegations of the complaint relating to the alleged false and defamatory statements Montgomery and Guralnick made to Gutkin's peers at other universities.
Gutkin filed a writ petition on May 17, 2001 seeking review of the trial court's ruling on the demurrers, which we summarily denied.
Gutkin did not amend his complaint, and the trial court granted respondents' subsequent motion to dismiss all of the individual defendants on June 22, 2001.
Following the trial court's rulings on the demurrers, only two claims remained against the University: Gutkin's cause of action for wrongful termination in violation of public policy and his claim of age discrimination.
C. The discovery order.
On June 20, 2001 the trial court granted respondents' motion to compel further responses to their request for production of documents. The court ordered Gutkin to produce a privilege log and to produce all non-privileged documents responsive to particular demands in the document request. The court also granted respondents' request for sanctions in the amount of $2,700.[1]
Gutkin did not produce the privilege log as ordered by the trial court. Instead, on July 10, 2001, Gutkin filed an ex parte application seeking to modify the court's June 20, 2001 discovery order and delay further production of documents. The trial court found that Gutkin had failed to show good cause and denied the application. Gutkin then sought leave to amend his complaint to delete the allegations of fraud and deceit so as to render discovery of documents the court had ordered him to produce irrelevant. The trial court denied the motion on August 8, 2001.
D. Gutkin's voluntary dismissal.
On July 12, 2001, Gutkin produced some of the documents the court had ordered produced, but indicated that he was continuing to withhold additional responsive documents, which he did not intend to produce. The University threatened to move for an award of further sanctions, including terminating sanctions.
The University noticed Gutkin's deposition to take place in mid-August. On August 10, 2001, prior to the scheduled date for Gutkin's deposition, Gutkin filed a voluntary *120 request for dismissal of his complaint "without prejudice."
Gutkin filed a notice of appeal on August 17, 2001. He then twice sought entry of judgment of dismissal on the basis of the trial court's orders sustaining the demurrers to five of the seven causes of action and dismissal of the individual defendants, as well as his own voluntary dismissal of the action. The court clerk rejected Gutkin's proposed judgment of dismissal because a dismissal of the complaint had been entered and notice of dismissal given. Gutkin then followed with a "supplemental notice of appeal" on October 4, 2001.
II
CONTENTIONS
With respect to the trial court's sustaining of the demurrers, Gutkin contends that he has a constitutional right to a jury trial of his claims against the University and the individual defendants. He maintains that this court's holding in Pomona College, supra, 45 Cal.App.4th 1716, 53 Cal. Rptr.2d 662, does not apply to the revocation of tenure. Gutkin also contends that the conduct underlying his tort claims falls outside the employment relationship, and these claims should not be subject to administrative mandamus.
Gutkin challenges the trial court's discovery order and sanction award and the denial of his ex parte application to modify the discovery order. He contends that the trial court abused its discretion in ordering further production of documents that were subject to attorney work product protections; the trial court's imposition of sanctions was unjust and failed to recognize the substantial justification for the work product objection; and the trial court abused its discretion in denying Gutkin's ex parte application for modification of the discovery order.
III
APPEALABILITY
A The ruling on the demurrers.
Gutkin correctly observes that after the trial court sustained respondents' demurrer to five of his seven causes of action without leave to amend, "the plaintiffs power to voluntarily dismiss those five causes of action was terminated." Those counts had been effectively "tried" by the court, and a voluntary dismissal cannot be taken after "trial" commences. (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 789, 176 Cal.Rptr. 104, 632 P.2d 217.) Gutkin further contends that even though the trial court refused to enter judgment following his voluntary dismissal of the complaint, the court's order sustaining the demurrers without leave to amend, combined with the dismissal of the action, had the legal effect of a final, appealable judgment. We agree.
In Ashland Chemical Co. v. Provence (1982) 129 Cal.App.3d 790, 181 Cal.Rptr. 340, the plaintiff dismissed the complaint with prejudice after the trial court had sustained a defendant's demurrer without leave to amend. Plaintiff expressly dismissed the complaint "`only for the purpose of expediting appeal,'" to obtain a final judgment to enable it to contest the court's ruling. (Id. at p. 792, 181 Cal.Rptr. 340.) On appeal the court rejected defendant's contention that plaintiff may not appeal after voluntarily dismissing its complaint, noting, "many courts have allowed appeals by plaintiffs who dismissed their complaints after an adverse ruling by the trial court, on the theory the dismissals were not really voluntary, but only done to expedite an appeal." (Id. at p. 793, 181 Cal.Rptr. 340; see also Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal. App.4th 1006, 1012, 105 Cal.Rptr.2d 115; *121 Casey v. Overhead Door Corp. (1999) 74 Cal.App.4th 112, 116, fn. 1, 87 Cal.Rptr.2d 603.)
B. The interim orders.
The effect of Gutkin's voluntary dismissal of the action on the appealability of other interim orders in this case is another matter. It is well established that a voluntary dismissal under Code of Civil Procedure[2] section 581 is not appealable. "The entry [of a request for dismissal] is a ministerial, not a judicial, act, and no appeal lies therefrom." (Associated Convalescent Enterprises v. Carl Marks & Co., Inc. (1973) 33 Cal.App.3d 116, 120, 108 Cal.Rptr. 782.) "A wilful dismissal terminates the action for all time and affords the appellate court no jurisdiction to review ... motions made prior to the dismissal." (Cook v. Stewart McKee & Co. (1945) 68 Cal.App.2d 758, 760-761, 157 P.2d 868.) Because Gutkin dismissed his remaining claims in this case without prejudice, the voluntary dismissal could not have the legal effect of a final judgment, and could not serve to expedite an appeal. By voluntarily dismissing the action without prejudice Gutkin lost his ability to challenge the trial court's interim orders. Accordingly, no appeal lies from the trial court's discovery order and denial of the ex parte application in this case. Ashland Chemical Company v. Provence, Stewart v. Colonial Western Agency, and Casey v. Overhead Door Corp., all of which involved voluntary dismissals with prejudice, are therefore inapposite.
Gutkin's appeal of the trial court's discovery order, monetary sanction order, and orders denying his ex parte application and motion for leave to amend the complaint, as well as the voluntary dismissal of the action is dismissed.
IV
STANDARD OF REVIEW
"`On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed "if any one of the several grounds of demurrer is well taken. [Citations.]" [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]'" (Payne v. National Collection Systems, Inc. (2001) 91 Cal.App.4th 1037, 1043, 111 Cal.Rptr.2d 260, quoting Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967, 9 Cal.Rptr.2d 92, 831 P.2d 317.) Nevertheless, if no liability exists as a matter of law, we must affirm that part of the judgment sustaining the demurrer, and if the plaintiff cannot show an abuse of discretion, the trial court's order sustaining the demurrer without leave to amend must be affirmed. (Traders Sports, Inc. v. City of San Leandro (2001) 93 Cal.App.4th 37, 44, 112 Cal.Rptr.2d 677.) "The burden is on the plaintiff ... to demonstrate the *122 manner in which the complaint might be amended. [Citation.]" (Hendy v. Losse (1991) 54 Cal.3d 723, 742, 1 Cal.Rptr.2d 543, 819 P.2d 1.)
V
DISCUSSION
A. Gutkin's claims fail under Pomona College, and the trial court properly sustained respondents' demurrer.
Our analysis is governed by our decision in Pomona College, which is dispositive of all but Gutkin's discrimination claims in this case.
In Pomona College, an assistant professor brought a civil action seeking damages for wrongful termination and breach of contract and implied covenants after the college denied him tenure. (Pomona College, supra, 45 Cal.App.4th at p. 1720, 53 Cal.Rptr.2d 662.) Plaintiff claimed that the college had promised him tenure as long as his performance was acceptable, in accordance with the policies outlined in the college's faculty handbook. (Ibid) He alleged that the college had breached his employment agreement by failing to follow its policies and procedures during the tenure review process. (Ibid.) We ordered the college's demurrer sustained without leave to amend on the basis of our conclusion that administrative mandamus under section 1094.5[3] provides the exclusive remedy to a professor in a private university for any procedural defects which he believes existed in the tenure review or in the grievance process. (Pomona College, at pp. 1720,1729, 53 Cal.Rptr.2d 662.)
We concluded that the case law supported application of section 1094.5 to private as well as public universities, and observed: "[C]ourts have been reluctant to review the merits of a tenure decision" because academic "peers, unlike nonacademics, are equipped to evaluate the candidate's teaching and research according to their conformity with methodological principles agreed upon by the entire academic community. They also have the knowledge to meaningfully evaluate the candidate's contributions within his or her particular field of study as well as the relevance of those contributions to the goals of the particular institution." (Pomona College, supra, 45 Cal.App.4th at p. 1726, 53 Cal.Rptr.2d 662.) For this reason, we concluded that "`courts must be vigilant not to intrude into that determination, and should not substitute their judgment for that of the college with respect to the qualifications of faculty members for promotion and tenure. Determinations about such matters as teaching ability, research scholarship, and professional stature are subjective, and unless they can be shown to have been used as the mechanism to obscure discrimination, they must be left for evaluation by the professionals, particularly since they often involve inquiry into aspects of arcane scholarship beyond the competence of individual judges.' [Citation.]" (Id. at p. 1725, 53 Cal.Rptr.2d 662.) "[A]bsent discrimination, judicial review of tenure decisions in California is limited to evaluating the fairness of the administrative hearing in an administrative mandamus action." (Id. at p. 1726, 53 Cal. Rptr.2d 662.)
Gutkin attempts to distinguish Pomona College on the ground that it involved the decision to deny tenure whereas his case involves the revocation of tenure. But our holding in Pomona College applies equally *123 to the revocation of tenure as to the denial of tenure. It goes without saying that the decision of who should have tenure and represent a university is inextricably connected to the "essential freedoms" of a university to "`"determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study."'" {Pomona College, supra, 45 Cal.App.4th at p. 1726, 53 Cal.Rptr.2d 662, quoting Sweezy v. New Hampshire (1957) 354 U.S. 234, 263, 77 S.Ct. 1203, 1 L.Ed.2d 1311.) Indeed, Gutkin himself acknowledges the importance of the role of academic peers in making tenure determinations: "A faculty position, held with tenure, ... [is] the ticket to full membership in the academic community. The decision to promote the scholar to a tenured position is driven, primarily, by the evaluation of the scholar's peers in the field of expertise."
Our holding in Pomona College did not turn on whether the plaintiff already held tenure or was challenging the denial of tenure. Nor did we conclude that the plaintiff could not state a contract claim because he lacked tenure. Rather, we held: "California law provides to those who feel wronged by procedural defects in the tenure processas opposed to those who disagree with substantive evaluationsa remedy. That remedy is administrative mandamus." (Pomona College, supra, 45 Cal.App.4th at p. 1727, 53 Cal. Rptr.2d 662.) If a college or university has the "essential freedom" to determine for itself "who may teach"as both this court and the United States Supreme Court have heldthat necessarily includes the determination whether a faculty member who has tenure should be dismissed. (Sweezy v. New Hampshire, supra, 354 U.S. at p. 263, 77 S.Ct. 1203.)
In his attempt to distinguish Pomona College, Gutkin appears to contend that once the initial decision to grant or deny tenure has been made, the judgment of the professor's academic peers falls by the wayside, and a lay jury may then step in to determine whether he or she remains entitled to "full membership in the academic community." But such a determination still requires an assessment of whether the professor's conduct is consistent with or contrary to academic norms, which only academic peers, not lay jurors, are qualified to determine. Gutkin's claim that "academic expertise" was not implicated in the revocation of his tenure is simply wrong: Gutkin refused to teach a class the University required him to teach, thus raising a question of compliance with academic norms.
Throughout his complaint and briefs, Gutkin decries a University dismissal process he calls the "Dismissal Machinery," which he claims is rife with procedural and due process deficiencies. At the heart of his claims lies the assertion that the University "made unilateral and surreptitious changes" to the faculty handbook, which contained the key terms of the tenure employment contract. But Gutkin cannot circumvent administrative mandamus review by seeking redress for alleged procedural and due process deficiencies in the dismissal process. That is precisely the purpose of mandamus reviewto ferret out such flaws and rectify them. As we held in Pomona College, "[Plaintiff] asserts ... that `the procedure set forth in the ... Handbook regarding the "hearing" is so vague as to deny a grievant due process.' [¶] Section 1094.5, subdivision (b) provides that the scope of inquiry in reviewing a petition for administrative mandate `shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported *124 by the findings, or the findings are not supported by the evidence.'" (Pomona College, supra, 45 Cal.App.4th at pp. 1729-1730, 53 Cal.Rptr.2d 662; § 1094.5, subd. (b).)
Finally, Gutkin concedes that "[a]dministrative mandamus is appropriate where an underlying hearing is required by law," but then contends that the University's faculty handbook did not satisfy this "by law" requirement. Just as we rejected this argument in Pomona College, so we reject it here: "[Plaintiff] also suggests ... that Pomona was not required `by law" to hold a hearing. Because the Handbook governed [plaintiffs] employment relationship with Pomona, the college was required by law to provide the hearing described therein. (See Cubic Corp. v. Marty (1986) 185 Cal.App.3d 438, 454, 229 Cal.Rptr. 828 [an employer is required by law to give its employees the benefit of existing company policies and procedures].) Mandamus is available if a hearing is required by statute, an organization's internal rules and regulations, or due process. [Citations.]" (Pomona College, supra, 45 Cal.App.4th at p. 1727, fn. 10, 53 Cal.Rptr.2d 662.)
In this case, it is undisputed the University's faculty handbook requires a hearing before a tenured faculty member can be dismissed, and further, that Gutkin had such a hearing. It is precisely the faculty handbook's requirement of a hearing that renders the hearing "required by law," for purposes of administrative mandamus. (Pomona College, supra, 45 Cal.App.4th at p. 1727, 53 Cal.Rptr.2d 662.)
B. The conduct underlying Gutkin's tort claims was strictly confined to the employment relationship; these claims are therefore subject to administrative mandamus.
Despite the tort labels, the gravamen of Gutkin's tort claims before us is that the University employed a procedure to dismiss him that was not sanctioned by the 1987 faculty handbook pursuant to which he had been given tenure. The central allegation of the first cause of action for fraud and deceit is that "... [the University] represented that it supported the tenure system and the legal rights conferred by the promotion to a tenured position. These representations were false. Behind the scenes, [the University] altered the Faculty Handbook, set [Gutkin] up for termination, and attempted to cover up its wrongful acts with a rigged dismissal proceeding." (Italics added.) Gutkin also describes his fraud claim in his opening brief by reference to the University's dismissal proceedings: "Prof[essor] Gutkin relied upon the University's representations that it supported tenure and would fulfill its obligations under the employment contract. Even holding the hearing was a manifestation of that [sic] false and misleading representations." (Italics added.)
In the fifth cause of action for defamation, Gutkin alleges he was "defamed" by the very fact that he was charged with "serious neglect of duty," by testimony adduced at the hearing, and by being dismissed "on false and fabricated grounds." Gutkin further alleges that the University falsely and maliciously asserted that there was adequate cause to terminate him from a tenured position on the faculty. Moreover, "[the University] deliberately waited beyond a fair and equitable time to schedule a dismissal hearing in order to assert, improperly, that the procedure set out in the 12/98 Handbook should apply. [The University] knowingly imposed the rigged methods for selecting a diminished panel upon [Gutkin], and falsely represented that the process adhered to national standards of academic due process. [The University] engaged in this wrongful and *125 deceptive conduct in order to represent that [Gutkin's] termination was justified. [The University] knew that this action was false and malicious. [¶] [The University] knowingly and deliberately commenced dismissal proceedings against [Gutkin] without adequate cause. The proceedings were commenced and continued with malice."
Similarly, the causes of action for intentional infliction of emotional distress and intentional interference with contract and with prospective economic advantage are based on the cancellation of a graduate level math class and the order to teach a lower division class, "the commencement of dismissal proceedings," "the delay in commencing those proceedings," the "pursuit of the dismissal proceedings with total disregard of University procedures and principles of fundamental fairness," and simply his "wrongful termination."
Thus, despite the tort labels, the substance of these claims is strictly confined to the employment relationship and the University's dismissal proceedings: precisely the type of claims that administrative mandamus is designed to address. It is manifest that our decision in Pomona College finally disposes of Gutkin's four causes of action in tort as well as his contract claim.
We reject Gutkin's contention that his so-called institutional fraud claim is actionable under Lazar v. Superior Court (1996) 12 Cal.4th 631, 49 Cal.Rptr.2d 377, 909 P.2d 981. Lazar involved fraudulent inducement to enter into an employment contract (the employer fraudulently induced the plaintiff to move from the East Coast to California)not a fraudulent inducement "to remain at [the University]" as Gutkin would have it. Lazar thus has no application to the facts of this case. As the Supreme Court stated in Hunter v. Up-Right, Inc. (1993) 6 Cal.4th 1174, 1184-1185, 26 Cal.Rptr.2d 8, 864 P.2d 88: "[I]t is difficult to conceive of a wrongful termination case in which a misrepresentation made by the employer to effect termination could ever rise to the level of a separately actionable fraud. In essence, such misrepresentations are merely the means to the end desired by the employer, i.e., termination of employment. They cannot serve as a predicate for tort damages otherwise unavailable under Foley [v. Interactive Data Corp. (1988) 47 Cal.3d 654, [254 Cal.Rptr. 211, 765 P.2d 373]]."
Finally, the gravamen of Gutkin's defamation claim is that it is inherently defamatory to pursue dismissal of a tenured professor such as himself. This is obviously not the law. In any event, the trial court's order sustaining the demurrer was proper on the ground that the University was privileged under Civil Code section 47, subdivisions (b) and (c) to invoke its dismissal procedures. (Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841, 846, 115 Cal.Rptr. 582.) Moreover, despite leave to amend the defamation claim against defendants Montgomery and Guralnick, Gutkin failed to do so, thus admitting he could allege no additional facts to support his claim against these defendants. When a plaintiff elects not to amend after the court sustains a demurrer with leave to amend, we assume the complaint states as strong a case as possible, and we will affirm the judgment if the unamended complaint is objectionable on any ground raised by the demurrer. (Soliz v. Williams (1999) 74 Cal.App.4th 577, 585, 88 Cal.Rptr.2d 184.) Since Gutkin's unamended complaint alleged no facts to support a defamation claim against Montgomery and Guralnick, the trial court properly sustained the demurrer and dismissed these defendants.
VI
DISPOSITION
*126 The judgment is affirmed.[4] Appellant is ordered to bear respondents' costs of appeal.
We concur: NOTT, Acting P.J., and ASHMANN-GERST, J.
NOTES
[1] Inexplicably, Gutkin's counsel sought writ review of the court's discovery order, not in Gutkin's case, but in the name of another of her clients who had also sued the University Vicki Pollockasking that the trial court's discovery order in Gutkin be set aside because Pollock's interests were somehow implicated. The writ petition in the Pollock case was denied. Gutkin himself did not petition for a writ from the trial court's discovery order or seek a stay of that order.
[2] All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
[3] In relevant part, section 1094.5 provides that mandamus is available to review "any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer...."
[4] Appellant's request for judicial notice filed June 12, 2002 is granted as to item 1, the California Supreme Court's denial of the request for publication of the opinion in Pollock v. University of Southern California et al. (B145203), 2001 WL 1513870. The request is otherwise denied.
Respondents' request for judicial notice filed May 23, 2002 is granted as to exhibits 1 through 6 with respect to documents in Pollock v. University of Southern California et al. (B145203), 2001 WL 1513870 and Pollock v. University of Southern California et al. (BC250772). The request is otherwise denied.
Respondents' motion for sanctions against appellant and his counsel is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316744/ | 148 S.E.2d 138 (1966)
267 N.C. 292
STATE of North Carolina
v.
Henry Spencer COVINGTON, III, and John David Cummings.
No. 665.
Supreme Court of North Carolina.
May 11, 1966.
*140 Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard, for the State.
Benjamin D. Haines, Greensboro, for defendant appellants.
PARKER, Chief Justice.
Defendants, who are indigents, were allowed to appeal in forma pauperis, and are represented here by court appointed counsel.
Defendant Covington excepted to Judge Shaw's entering a judgment revoking probation and activating the sentence of imprisonment imposed upon him for contributing *141 to the delinquency of a minor. Judge Shaw at the hearing before him found as facts from competent evidence presented to him that defendant Covington had willfully violated the conditions of probation upon which a term of imprisonment was imposed upon him for contributing to the delinquency of a minor, and properly revoked probation and activated the sentence of imprisonment.
Each defendant assigns as error the denial of his motion for judgment of nonsuit. However, this assignment of error by each defendant is not brought forward and discussed in their joint brief. Therefore, it is deemed to be abandoned by each defendant. Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 783, 810; State v. Strickland, 254 N.C. 658, 119 S.E.2d 781.
We have carefully examined the assignments of error in respect to the admission of evidence over the objections and exceptions of defendants and their assignments of error to the charge. Prejudicial error is not shown.
The revocation of the order of probation and activation of the sentence of imprisonment against Covington is affirmed. In the trial of Covington on the assault charge we find no error.
The record before us shows the charge in the indictment against each defendant of the unlawful taking of an automobile in violation of G.S. § 20-105 originated in the Superior Court of Guilford County.
The municipal-county court, criminal division, Greensboro, Guilford County, is a court of limited jurisdiction and has "original, exclusive and final jurisdiction of all violations of the ordinances of the city of Greensboro and of all criminal offenses below the grade of felony, as defined by law * * *," committed within Guilford County, "except the Townships of High Point, Jamestown and Deep River." 1955 Session Laws, Ch. 971, sec. 3(a), (b), (1). The Legislature, in the exercise of its discretion, has denied to the superior court sitting in the counties named in the proviso to G.S. § 7-64 the right to exercise concurrent jurisdiction with inferior courts in the trial of misdemeanors. Guilford County is named in the proviso to G.S. § 7-64. Because of the limitation so imposed on the jurisdiction of the Superior Court of Guilford County, it could not exercise original jurisdiction of the unlawful taking of an automobile, a violation of G.S. § 20-105, which is a misdemeanor. If the defendants are to be prosecuted for a violation of G.S. § 20-105, it must originate in the municipal-county court, criminal division, Greensboro, Guilford County. State v. Cooke, 248 N.C. 485, 103 S.E.2d 846, and authorities cited, appeal dismissed 364 U.S. 177, 80 S.Ct. 1482, 4 L.Ed.2d 1650, petition for rehearing denied 364 U.S. 856, 81 S.Ct. 29, 5 L.Ed.2d 80. This case is reported in the United States Supreme Court Reports as Wolfe v. North Carolina; because of the death of Phillip Cooke, his appeal was dismissed as abated. 359 U.S. 951, 79 S.Ct. 737, 3 L.Ed.2d 759. Any jurisdiction the Superior Court of Guilford County obtains in this case for a violation of G.S. § 20-105 must be derivative. State v. White, 246 N.C. 587, 99 S.E. 2d 772. The conviction of defendants of a violation of G.S. § 20-105 in this case was by a court without jurisdiction to hear and determine the guilt or innocence of defendants on that charge and was therefore a nullity, and the sentence imposed on each defendant on such conviction is void. However, defendants can be tried thereafter when properly charged in a court having jurisdiction over a violation of G.S. § 20-105. State v. Cooke, supra. This fatal lack of jurisdiction appears on the face of the record proper. It is not referred to in the briefs of the Attorney General or of the defendants. The Supreme Court, ex mero motu, arrests the judgment of 12 months imprisonment imposed upon defendant Covington upon his conviction of a violation of *142 G.S. § 20-105, and arrests the judgment of 8 months imprisonment imposed on defendant Cummings upon his conviction of a violation of the same statute. The legal effect of arrest of judgment is to vacate the verdict and judgment below in respect to the charge of a violation of G.S. § 20-105. State v. Williams, 253 N.C. 337, 117 S.E.2d 444, 92 A.L.R.2d 513; State v. Biller, 252 N.C. 783, 114 S.E.2d 659.
The result is this: As to defendant Covington, revocation of probation and activation of sentence of imprisonment affirmed; trial and judgment on assault case, no error. As to defendants Covington and Cummings, judgment arrested as to each defendant of imprisonment imposed upon conviction of a violation of G.S. § 20-105.
MOORE, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316677/ | 113 Ga. App. 283 (1966)
148 S.E.2d 83
PENNSYLVANIA THRESHERMEN & FARMERS MUTUAL CASUALTY INSURANCE COMPANY
v.
HILL; and vice versa.
41716, 41741.
Court of Appeals of Georgia.
Argued January 10, 1966.
Decided January 20, 1966.
Rehearing Denied March 9, 1966.
*286 Greene, Neely, Buckley & DeRieux, Thomas B. Branch, III, for appellant.
Smith, Ringel, Martin & Lowe, Meade Burns, for appellee.
EBERHARDT, Judge.
Since the cross appeal deals with the matter of pleadings we first dispose of the issues raised in it.
1. Defendant demurred to the petition on the ground that there was not a full assignment of the chose in action and as a matter of law there could be no partial assignment.
It appears from the allegations of the petition that the payment made by Rhode Hill's father in the sum of $432 was prior to the settlement by Pennsylvania Threshermen with Jan Tabaka, in connection with which it took from him the assignment sued upon. We must, therefore, consider the effect of Mr. Hill's payment. It is alleged that it was the intention that the $432, being paid in reimbursement for the items (a) $100 represented by the amount deductible from the loss of use of his automobile which Jan P. Tabaka experienced as a result of the collision and damage, was in full payment for all loss damages suffered over and above the $1,705.51 which was paid by the plaintiff, Pennsylvania Threshermen, and that it was never the intention that this payment be in settlement or satisfaction for the entire damage.
Under the allegations of the petition the payment by Hill's father was a pro tanto payment, simply extinguishing that much *287 of Tabaka's claim. It does not appear to have been tendered or made in full settlement or satisfaction. There existed no legal obligation on the part of Mr. Hill to pay Tabaka anything on account of the action of his son resulting in the loss of Tabaka's car. Thus, as to him, it was a voluntary payment. If he had not made the payment his promise to do so would have been unenforceable. Whelan v. Edwards & Hackney, 29 Ga. 315.
"A payment or other performance by a third person, accepted by a creditor as full or partial satisfaction of his claim, discharges the debtor's duty in accordance with the terms on which the third person offered it." Restatement, Contracts, § 421 (1932). To the same effect, see 1 CJS 482, Accord and Satisfaction, § 12. This rule was applied in Willcox v. Cobb, 58 Ga. App. 39 (197 S.E. 517), and we think it in harmony with what was held in Whelan v. Edwards & Hackney, supra. The suit in Whelan was brought against the volunteer, not against the debtor. Consequently the statement in the opinion that "Even if Edwards had got the one hundred and fifty dollars in money, what would prevent him from collecting the debt from the son? If another man pays my debt for me, without my consent, it is no payment for me. I remain liable," is obiter. That question was not before the court.
We do not overlook the rule that a person may have but one satisfaction for his injuries, whether to his person or to his property. Code § 105-2001; Donaldson v. Carmichael, 102 Ga. 40 (29 S.E. 135); Georgia R. & Power Co. v. Endsley, 167 Ga. 439 (145 S.E. 851); Griffin Hosiery Mills v. United Hosiery Mills, 31 Ga. App. 450 (120 S.E. 789); Edmondson v. Hancock, 40 Ga. App. 587 (151 S.E. 114).
But "[t]here is a genuine distinction between a satisfaction and a release. A satisfaction is an acceptance of full compensation for the injury; a release is a surrender of the cause of action, which may be gratuitous, or given for an inadequate consideration." Prosser, Torts, p. 268 (3d Ed.). Tabaka gave no release in connection with the payment from Mr. Hill, and Mr. Hill obtained none. He simply made a payment which, together with that expected to be obtained from the insurance company and the sale of the salvage, would make "full compensation" by restoring Tabaka to his position.
*288 As Dean Prosser points out, if the injured party gives a release, upon a valuable consideration whether amounting to full compensation or not the cause of action is surrendered, and since there is only one cause of action, all joint tortfeasors are released.[1] But if there is no release, and the payment is not made and accepted as "full compensation" it is only a pro tanto payment, for if the cause of action has not been surrendered, only full compensation will extinguish it. When a release is taken, the consideration paid is presumptively full compensation, and it can be avoided only for duress, fraud, accident or mistake. 1 EGL 171, Accord and Satisfaction, § 11.
*289 This is not a new or novel principle in the law of Georgia. Covenants not to sue have been recognized (Code § 20-909), as have releases. Code § 20-910. The covenant not to sue runs only to the one with whom it is entered into. Roy v. Georgia R. & Bkg. Co., 24 Ga. App. 86 (100 S.E. 46). But the amount paid under it can be pleaded and proven by another who is jointly liable for the purpose of obtaining credit in assessing full compensation. Atlantic C. L. R. Co. v. Ouzts, 82 Ga. App. 36 (2) (60 SE2d 770). We apprehend that a partial payment by one tortfeasor to the injured party could be pleaded and proven by another in a suit brought against him, whether a covenant not to sue were taken or not, the purpose being the same.
In Donaldson v. Carmichael, 102 Ga. 40, supra, as we understand that case, it was held that a payment by a joint tortfeasor, whether in whole or in part, if made and accepted in full settlement or satisfaction of the injury, will bar any action against another. In so receiving the payment the injured party surrenders his cause of action. In the opinion the court asserted: "The plaintiff is not entitled to receive more than one satisfaction for and in respect to the same injury. As was said by the court in Lovejoy v. Murray, 3 Wall. 1, when the plaintiff has accepted satisfaction in full for the injury done him, from whatever source[2] it may come, he is so far affected in equity and good conscience that the law will not permit him to recover again for the same damage." It is for this reason that a partial payment, with or without a covenant not to sue, not made in full settlement or *290 satisfaction of the injury, can be pleaded and proven. It is a satisfaction pro tanto only. Cf. 45 Am. Jur. 676, § 4. Mr. Hill's payment is pleaded and proven here, and we hold that the matter of whether his payment, together with that made by Pennsylvania Threshermen amounted to a full satisfaction of the damage is a jury question.
While we have held that Mr. Hill was a volunteer in making the payment, it is urged that under Code § 105-113 he might be held for the damage to Tabaka's car on the theory that the act of his son was one of vandalism, citing Landers v. Medford, 108 Ga. App. 525 (133 SE2d 403). Judge Bell has given a thorough discussion of what an act of vandalism is in General Accident &c. Corp. v. Azar, 103 Ga. App. 215 (119 SE2d 82), concluding that it is a wilful or malicious destruction of property. Recently Judge Frankum dealt fully with what a wilful and wanton act in the damaging or destruction of property may be, concluding that it is one "so reckless as to evince an entire want of care on the part of the defendants so as to raise a presumption of a conscious indifference to the consequences," and further that "mere negligence can never amount to such aggravating circumstances. . ." Louisville &c. R. Co. v. Young, 112 Ga. App. 608, 613 (145 SE2d 700). It was held in Southern R. Co. v. Davis 132 Ga. 812, 816 (65 S.E. 131), that mere failure to observe speed laws or to give statutory signals is insufficient standing alone to charge the defendant with wilful and wanton misconduct. The facts here are vastly different from those in Landers, which perhaps delineates an outer limit of what may constitute vandalism in this context. It was not contended in the pleadings or in the trial of this case that there was anything in the conduct of young Hill that could amount to vandalism. It is mentioned for the first time in this court. We think that the conduct of Rhode could not be so held and that no liability could attach to his father on that basis. Mr. Hill does not occupy the position of a joint tortfeasor. But if he did, it would not alter the conclusion that we reach, since there was no payment or receipt of the $432 in full satisfaction of the damage that Rhode had done to the Tabaka car, nor any release given by which Tabaka surrendered his cause of action.
In Western & A. R. Co. v. Atkins, 141 Ga. 743 (82 S.E. 139), *291 the defendant pleaded a written release which the injured party had executed, based upon a valuable consideration. It is not in conflict with what we here hold. The same is true of Pennsylvania Cas. Co. v. Thompson, 130 Ga. 766 (61 S.E. 829). In Universal Credit Co. v. Service Fire Ins. Co., 69 Ga. App. 357 (25 SE2d 526), there was a release of the cause of action, a settlement of a pending suit and a written dismissal reciting that a settlement of the action had been accepted by the plaintiff.
It cannot be urged that Mr. Hill was acting as his minor son's agent (Siegelstein v. Fenner & Beane, 66 Ga. App. 345, 348 (17 SE2d 907)), or as his guardian, for it does not appear that he had qualified to act in that capacity. Code § 49-219; Nix v. Monroe, 36 Ga. App. 356 (1) (136 S.E. 806); 155 A.L.R. 201n. Thus, though Rhode Hill was not a party to any contract or agreement under or by which his father made the payment of $432 to Tabaka, under the Restatement rule, Tabaka, having accepted and retained the benefits of the payment, would be bound by the terms upon which it was offered. Under the allegations of the petition, supported by the evidence, it was offered as a pro tanto payment of what Tabaka would be out-of-pocket over and above the amount to be paid him by the insurance company. After the payment by Mr. Hill there remained outstanding the amount of the claim which was insured and for which Tabaka expected to and did receive $1,705.51 from the company.
In the assignment it was recited that "I Jan P. Tabaka, in consideration [of the payment of $1,705.51] and pursuant to the provisions of said policy, do hereby sell, transfer, assign and set over to [Pennsylvania Threshermen], its successors or assigns, my claim against Rhode Hill for said loss as aforesaid, but only to the extent of the loss which was covered by said insurance and paid by said company." Thus, when Pennsylvania Threshermen made payment to Tabaka it was for all of the claim then existing, and there was no reason why Tabaka could not assign it. It was not a partial assignment.
2. There was a demurrer to the allegation that the payment of the $432 was for the "inconvenience and loss of use" of Tabaka's car, on the ground that it did not appear how many days he had been inconvenienced by the loss of its use. The defendant is *292 generally entitled to that information and this is usually good ground of demurrer. McKenzie v. Mitchell, 123 Ga. 72 (2) (51 S.E. 34); Perkins v. Publix Theatres Corp., 47 Ga. App. 641 (5) (171 S.E. 147); Martin v. Waltman, 82 Ga. App. 375, 379 (61 SE2d 214); Community Gas Co. v. Williams, 87 Ga. App. 68, 83 (73 SE2d 119). Cf. Atlanta &c. R. Co. v. Hudson, 62 Ga. 679; Atlanta Cotton-Seed Oil Mills v. Coffey, 80 Ga. 145, 150 (4 S.E. 759); Telfair County v. Webb, 119 Ga. 916 (2) (47 S.E. 218); Southern R. Co. v. Stearns, 8 Ga. App. 111 (68 S.E. 623); Olliff v. Howard, 33 Ga. App. 778 (127 S.E. 821); Lamb v. Landers, 67 Ga. App. 588 (4) (21 SE2d 321); Webb v. May, 91 Ga. App. 437 (2) (85 SE2d 641). But since loss of use of the vehicle is not an element for which recovery is sought, it appearing from the petition as amended that the claim for that was included in and fully satisfied by Mr. Hill's payment, overruling of this demurrer was not error.
3. We now move to a consideration of the main appeal dealing with the trial of the issue upon its merits.
Appellant (plaintiff below) urges that there was no evidence to support the verdict upholding the plea of accord and satisfaction because the evidence failed to show any meeting of the minds of Jan Tabaka, the owner of the car, and Rhode Hill, who wrecked it, and because the evidence failed to establish that Hill's father was authorized to make a settlement on behalf of his minor son.
Jan Tabaka testified that he had talked with young Hill's father two or three times about the matter and the result of the conversations was that Mr. Hill "said to let him know how much it would be, and he agreed to pay what it would cost for me to get a new car like the one I had and to pay some out-of-pocket travel expense incurred in my trip from Augusta." When asked whether anything had been said by either of them as to whether the payment would constitute a settlement of all claims that he might have against young Hill he answered that as he recalled "the whole conversations were not in that vein."
Mr. Hill testified that he told Tabaka that he did not want him to suffer any loss as a result of the accident and suggested that he find out what the cost would be and that they would then *293 make a deal. When the matter of the insurance was mentioned Mr. Hill had stated to Tabaka, "I know it's deductible insurance and I don't want you to suffer anything." He asked Tabaka what was deductible under his policy and upon being informed that it was $100 stated, "I will take care of that." He also stated, "You have been out-of-pocket with no car and having to travel from Augusta to Atlanta, and I'll take care of that." After negotiating a trade for another Austin-Healey Tabaka told Mr. Hill that the loss he was going to suffer came to $432, whereupon Mr. Hill asserted: "Well, that suits me. If the insurance company is going to pay some of it and you get the salvage value on your car, and I'll pay the difference so there won't be any loss to you." Pursuant to that Mr. Hill paid the $432 to Tabaka's father, as Tabaka had instructed that he should do, and in doing so wrote a letter explaining that the payment was to cover the difference in the insurance payment and the cost of another car. However, he also testified that in making the payment he was of the opinion that it was to be a full and complete settlement of the matter and that if he had not thought that would be the end of it he would not have paid the check. On cross-examination he testified that there was never any discussion of the claim against his son, Rhode, in the amount of $1,705.51, that there was no contemplation of any compromise of that claim because he thought the insurance company would take care of it and that he would just "fix it so that [Tabaka] wouldn't lose anything, and that was all I thought about it. I didn't want to pay any more money out of my pocket than that."
An accord and satisfaction is itself a contract and requires a meeting of the minds in order to render it valid and binding. Alfred Struck Co. v. Slicer, 23 Ga. App. 52, 54 (97 S.E. 455); Richardson v. Seibert, 38 Ga. App. 76 (142 S.E. 755). Neither the testimony of Jan Tabaka nor that of Mr. Hill discloses any meeting of their minds that the payment by Mr. Hill was to be in settlement of the whole claim, or that full settlement was contemplated. Both the payment of the $432 and its acceptance was with the idea that it would cover items which the insurance did not cover, or which would not be paid by the insurance company. As to the sum total of the whole loss, including all items, it was to be a pro tanto payment.
*294 The evidence demanded a finding against the plea of accord and satisfaction. Mr. Hill's testimony that he thought the payment would be the end of the matter and that he did not want to pay out any further money from his pocket does not alter that. He was in no way liable for any payment on account of the loss. It may have been in his mind that the payment would end the matter, but that was not the tenor of the negotiations had between him and Tabaka nor was the payment made with that condition attached.
The contention that there was no evidence of any authority of Mr. Hill to act for his son in effecting any settlement of Tabaka's claim is also meritorious, though immaterial as to the effect here. As we have indicated above, the son could not have designated the father as his agent for that purpose. Siegelstein v. Fenner & Beane, 66 Ga. App. 345, supra. A duly qualified guardian may negotiate a complete settlement and it is conclusive until set aside in a direct proceeding brought for that purpose. Campbell v. Atlanta Coach Co., 58 Ga. App. 824, 825 (200 S.E. 203); Griffin v. Collins, 125 Ga. 159, 164 (53 S.E. 1004). But it did not appear that Mr. Hill had qualified as his son's guardian.
There was ample evidence of negligence on the part of young Hill from his own testimony. He was open, frank and truthful, admitting the facts as to his inexperience in driving the Austin-Healey car, the speed of 40 miles per hour in what he knew to be a 25 mile per hour zone of the street (though it is unnecessary to determine this to have been negligence per se), his losing control because of his unfamiliarity with the sensitive steering mechanism of the car, none of which was in any way contradicted. No issue was raised as to that; a finding of liability was demanded and the motion to direct a verdict against the defendant on the issue of liability should have been granted. Smith-East Produce Co. v. Williams, 112 Ga. App. 620 (145 SE2d 794). See also Allen v. Safeco Ins. Co. of America, 108 Ga. App. 278 (132 SE2d 859), though the matter of whether the resulting damage justified the payment of $1,705.51 by Pennsylvania Threshermen, or whether the payment was sufficient to cover the resulting damage remained a question of fact.
The contention by defendant that since he was a minor he *295 could not be held for negligence in connection with a bailment contract is without merit. There was no bailment here, for Bob Tabaka, from whom young Hill obtained the car, was wholly without authority to make a bailment of the car to him, and Hill knew of that. Consequently, when Rhode Hill took the car he was not a bailee, but a trespasser. The case of Jones v. Milner, 53 Ga. App. 304 (185 S.E. 586), cited in 127 A.L.R. 1443n, has no application and does not require a different conclusion.
As we have pointed out, Mr. Hill was not a joint tortfeasor and was in no wise liable in the matter. Consequently, Reese v. Brown, 93 Ga. App. 10 (90 SE2d 683) and others of like tenor have no application.
4. In view of what we have held above the charge of the court on accord and satisfaction was unauthorized and erroneous.
5. There was no error in failing to give an unrequested charge defining the preponderance of the evidence. Martin v. Waltman, 82 Ga. App. 375, 380 (61 SE2d 214). That a charge on the credibility of witnesses was given does not require a contrary conclusion.
Reversed on the main appeal, with direction that a judgment of liability be entered against the defendant, notwithstanding the verdict, and affirmed on cross appeal. Bell, P. J., and Jordan, J., concur.
NOTES
[1] It would not appear to be essential that legal liability against the releasee be established beyond debate. Cf. Griffin Hosiery Mills v. United Hosiery Mills, 31 Ga. App. 450, supra. There is often a bona fide question as to whether he was guilty of actionable negligence, or of whether the injured party might, by the exercise of ordinary care, have avoided the consequences to himself of the releasee's negligence; but if a sum is accepted from the release in full satisfaction of the claim, others who may be liable as joint tortfeasors are released because there is but one injury and the injured party has surrendered his cause of action. It should appear that the releasee was so connected with the occurrence or with the principals involved as to be a "joint tortfeasor," and subject to being named as a defendant in an action by the injured party. However, it is difficult to lay down a hard and fast rule. Compare, for example, Edmondson v. Hancock, 40 Ga. App. 587, supra, and Piedmont Hospital v. Truitt, 48 Ga. App. 232 (172 S.E. 237), to see some of the obvious problems that might have arisen if there had been a payment by one of the tortfeasors, or a release to one of them.
It has been held that the release of one who is not in fact liable is no protection to those who are, (Carroll v. Kerrigen, 173 Md. 627 (197 A 127)), and that the release of an owner of an automobile does not release the negligent driver who was not his agent or servant and for whose conduct he was in no wise responsible. Rosenfeld v. Stauffer, 121 Pa. Super. 103 (182 A 714). Payment of a gratuity by one who is not a joint tortfeasor does not effect a release of those who are liable. Turner v. Robbins, 276 Pa. 319 (120 A 274).
[2] Not to be confused with a payment of life or accident insurance which the injured party may have carried (Western & A. R. Co. v. Meigs (74 Ga. 857 (5)), or the gratuitous supplying of medical, nursing, etc. services (Nashville C. & St. L. R. Co. v. Miller, 120 Ga. 453, 455 (47 S.E. 959)), the gratuitous payment of wages during incapacity (Western & A. R. Co. v. Sellers, 15 Ga. App. 369 (2) (83 S.E. 445)), or the payment of workmen's compensation. Hotel Equipment Co. v. Liddell, 32 Ga. App. 590 (124 S.E. 92); Echols v. Chattooga Merc. Co., 74 Ga. App. 18 (3b) (38 SE2d 675); Borochoff v. Fowler, 98 Ga. App. 411 (105 SE2d 764); U. S. Cas. Co. v. Watkins, 211 Ga. 619 (2) (88 SE2d 20). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316709/ | 148 S.E.2d 856 (1966)
267 N.C. 714
COLWELL ELECTRIC COMPANY
v.
KALE-BARNWELL REALTY & CONSTRUCTION CO.
No. 847.
Supreme Court of North Carolina.
July 6, 1966.
*859 W. R. Dalton, Jr., Burlington, for claimant appellants.
W. Clary Holt and Sanders & Holt, Burlington, for North Carolina National Bank, appellee.
LAKE, Justice.
When the grantee in a deed, conveying the legal title to land, promises, at or before so acquiring the legal title, to hold it for the benefit of a third person, or *860 declares that he will hold the land in trust for such third person, a valid, express trust is thereby created though the deed contains no provisions with reference to any right of such third person. Avery v. Stewart, 136 N.C. 426, 48 S.E. 775, 68 L.R.A. 776; Sykes v. Boone, 132 N.C. 199, 43 S.E. 645. Such trust may be established by parol evidence which is clear, strong and convincing.
Though there is no such express promise or declaration, if the acts, declarations and assurances of the grantee, at or before the transfer of the legal title to him, are such as to lead a third party reasonably to believe that the contemplated conveyance will be drafted so as to confer upon him a beneficial interest in the property superior to that of the grantee and those actually named in the conveyance as beneficiaries thereof, and if such third person, in reliance upon this representation, parts with a thing of value or otherwise sustains a legal detriment, a court of equity will fasten upon the legal title so conveyed a constructive trust for the benefit of such third person. "A constructive trust * * is a trust by operation of law which arises contrary to intention and in invitum, against one who * * * in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy." 54 Am.Jur., Trusts, § 218. In order for a constructive trust to arise it is not necessary that fraud be shown. Speight v. Branch Banking & Trust Co., 209 N.C. 563, 183 S.E. 734. It is sufficient that legal title has been obtained in violation, express or implied, of some duty owed to the one who is equitably entitled. Bryant v. Bryant, 193 N.C. 372, 137 S.E. 188, 51 A.L.R. 1100. "A constructive trust arises where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it." Lee, North Carolina Law of Trusts, § 11a. Of necessity, the circumstances out of which such constructive trust arises may be shown by parol evidence.
Here, the evidence, including that of Mr. Wicker, himself, and of Mr. Shoffner, the trustee in the deed of trust securing the note to the Wickers, is abundantly sufficient to support each finding of fact by the trial court and to show that the claim of the Wickers and the claim of the Bank arise out of a unified plan for the acquisition and development of the Wicker properties by the defendant with the financial assistance of the Bank. The deeds from the Wickers to the defendant, the notes by the defendant to the Wickers, the deeds of trust from the defendant to Shoffner, trustee for the Wickers, and the deeds of trust from the defendant to Foley, trustee for the Bank, were all contemporaneously prepared by the same draftsman. After all the documents were executed, the deeds and deeds of trust were all taken by him to the office of the Register of Deeds for registration there. It was clearly understood and agreed that without construction loans from the Bank to the defendant, the defendant could not and would not purchase the Wicker lots for the agreed price. It was further clearly understood and agreed by the Wickers and Shoffner, trustee, prior to the conveyance of the legal title to the properties to Shoffner, trustee, that the legal title to the land would be conveyed to Shoffner as security for the Wicker notes, but that the beneficial interest of the Wickers in the land would be subordinate to the beneficial interest of the Bank. Language was inserted in the deed of trust to Shoffner, trustee, which was intended to accomplish this purpose. This provision did not sufficiently identify the deed of trust to Foley, trustee for the Bank, to comply with the requirements of Hardy v. Fryer, 194 N.C. 420, 139 S.E. 833, the amount of the encumbrance held by the Bank and intended to be given priority *861 not being stated. However, this statement in the deed of trust, under which the Wickers claim, is further evidence of the intent and understanding of the parties at and prior to its execution.
For the purpose of carrying out the contemplated program, including the establishment of a prior lien upon the property in favor of the Bank, Shoffner, the draftsman of the instruments, carried them all to the office of the Register of Deeds together and delivered them to a clerk in that office. Contrary to his instructions to such clerk, the deed of trust to Shoffner, trustee, for each lot was marked by the clerk as having been filed for registration before the deed of trust upon such lot to Foley, trustee for the Bank. If, as is clearly not the case, Shoffner had, with intent to defraud the Bank and to violate the clear agreement and understanding of all the parties, actually filed the deed of trust to him ahead of the deed of trust to Foley and, in drafting the instrument to him, had omitted any reference to the deed of trust securing the Bank, equity would fasten a constructive trust, in favor of the Bank, upon these properties, which trust would prevail over any right of Shoffner and the Wickers. The fact that the reversal in the order of filing of the papers was the result of inadvertence rather than fraud does not prevent the claim of priority for the Wicker note from being directly contrary to the understanding of the parties and contrary to good conscience. Equity will, therefore, raise a constructive trust in favor of the Bank "to satisfy the demands of justice." 54 Am.Jur., Trusts, § 218.
This is not a situation in which one acquires legal title to property upon which there is an existing but unrecorded encumbrance which is simply noted in the recorded, subsequent conveyance. See: Bourne v. Lay & Co., 264 N.C. 33, 140 S.E.2d 769; Lawson v. Key, 199 N.C. 664, 155 S.E. 570; Story v. Slade, 199 N.C. 596, 155 S.E. 256. It is not merely a matter of notice of the deed of trust under which the Bank claims. Here we have contemporaneously executed papers, parts of a unified plan, an agreement that the one deed of trust is to have priority over the other, and a bona fide but unsuccessful effort to record both documents so as to accomplish that purpose.
Although it is not shown in the record that Mrs. Wicker was present at the time the various papers were executed and delivered to Shoffner for registration, or that she had actual knowledge of the agreement that the Bank's claim was to have priority of lien, she is now claiming the benefit of the notes and deeds of trust given to her husband at the conference at which these documents were all signed and the relative position of the liens was explained. While a husband, as such, is not the agent of his wife, here the husband was handling the transaction, including the delivery of the deed signed by her as one of the grantors. She cannot claim the benefits of the notes received by him as her agent in this transaction and disavow his agency with reference to the agreement as to priority of the liens, without which the transaction would not have been consummated. Dobias v. White, 240 N.C. 680, 83 S.E.2d 785; Tomlins v. Cranford, 227 N.C. 323, 42 S.E.2d 100.
It is not necessary to consider the question of whether the record shows such a mistake in drafting the deed of trust to Shoffner, trustee, as to justify an order reforming it so as to include a more perfect description of the deed of trust securing the Bank. Nor is it necessary to determine the right of the Bank to have the record in the office of the Register of Deeds corrected with reference to the time of the filing of the respective deeds of trust for registration. The land has been sold and conveyed by the receiver and neither of these matters affects the title of the purchaser from him. The sole question before us relates to the order of distribution of the proceeds now in the hands of the receiver. The judgment of the superior *862 court is in accordance with the principles of equity above stated. We have examined each of the assignments of error and find no reason therein to disturb the judgment.
Affirmed.
MOORE, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316725/ | 525 F.3d 1168 (2008)
Jonathan L. HAAS, Claimant-Appellee,
v.
James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellant.
No. 2007-7037.
United States Court of Appeals, Federal Circuit.
May 8, 2008.
*1171 Barton F. Stichman, National Veterans Legal Services Program, of Washington, DC, argued for claimant-appellee. With him on the brief was Louis J. George.
Todd M. Hughes, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellant. With him on the brief was Jeanne E. Davidson, Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Ethan G. Kalett, Staff Attorney, United States Department of Veterans Affairs, of Washington, DC.
Before MICHEL, Chief Judge, BRYSON, Circuit Judge, and FOGEL, District Judge.[*]
Opinion for the court filed by Circuit Judge BRYSON; Dissenting opinion filed by District Judge FOGEL.
BRYSON, Circuit Judge.
Beginning in 1962, the United States used herbicides such as Agent Orange in Vietnam for the purpose of "defoliation, crop destruction, and on a smaller scale, clearing vegetation around U.S. fire bases and other installations, around landing zones, and along lines of communication." S.Rep. No. 100-439, at 64-65 (1988). Agent Orange consisted of an equal mixture by weight of two chemicals, 2, 4-dichlorophenoxyacetic acid and 2,4,5-trichlorophenoxyacetic acid. It also contained trace amounts of 2,3,7,8-tetrachlorodibenzo-para-dioxin, also known as dioxin. Id. at 64. The use of Agent Orange in Vietnam increased substantially between 1967 and 1969. Agent Orange came under scrutiny after a report from the National Institutes of Health indicated that 2,4,5,-trichlorophenoxyacetic acid was associated with birth defects in animals, although later research indicated that those birth defects were more likely caused by dioxin. Id. at 65; see also David A. Butler, Connections: The Early History of Scientific and Medical Research on "Agent Orange", 13 J.L. & Policy 527, 545-48 (2005); Inst. Of Med., Veterans and Agent Orange: Health Effects of Herbicides Used in Vietnam 30 (1994) ("Veterans and Agent Orange") (discussing later research). The use of Agent Orange was phased out by 1971. Veterans and Agent Orange at 27.
*1172 The impact of Agent Orange on humans has subsequently been the subject of much research and controversy. Congress has enacted several statutes mandating that research be conducted regarding the impact of Agent Orange on human health and providing that veterans be compensated for illnesses resulting from exposure to the chemical. This case concerns the Agent Orange Act of 1991, Pub.L. 102-4, 105 Stat. 11, which provided a special mechanism of disability compensation for veterans exposed to herbicides such as Agent Orange.
To receive disability compensation, a veteran must establish that the disability was service connected, which means that it must have been "incurred or aggravated... in the line of duty in the active military, naval, or air service." 38 U.S.C. § 101(16). The Agent Orange Act provided that for certain veterans and certain diseases, both exposure and service connection are presumed to be established. 38 U.S.C. § 1116(a)(1).
The statutory list of diseases as to which exposure and service connection are presumed includes non-Hodgkin's lymphoma, certain soft-tissue sarcomas, chloracne, Hodgkin's disease, porphyria cutanea tarda, certain respiratory cancers, multiple myeloma, and diabetes mellitus (type 2). See 38 U.S.C. § 1116(a)(2). If a veteran can prove that he or she has one of the listed diseases and "served in the Republic of Vietnam" between January 9, 1962, and May 7, 1975, the disease will ordinarily "be considered to have been incurred in or aggravated by such service." 38 U.S.C. § 1116(a)(1)(A). Consequently, proving service "in the Republic of Vietnam" is important to any veteran who seeks compensation for one of the listed diseases.
This case calls on us to address whether veterans who served on ships off the coast of Vietnam during the Vietnam War served "in the Republic of Vietnam" and thus are entitled to the presumption of service connection if they suffer from one of the listed diseases. The government argues that the phrase "served in the Republic of Vietnam" requires that a servicemember have at some point set foot within the land borders of Vietnam. Mr. Haas contends that the phrase extends to those who served on board ships in the waters off the Vietnamese coast but never went ashore.
By regulation, the Department of Veterans Affairs ("DVA") has interpreted the phrase "served in the Republic of Vietnam" to mean that the veteran's service must have involved "duty or visitation" in the Republic of Vietnam in order for the veteran to be entitled to the statutory presumption of service connection. See 38 C.F.R. § 3.307(a)(6)(iii). That regulation, as interpreted by the DVA, made the statutory presumption of service connection unavailable to veterans such as appellant Jonathan Haas, who served on a naval vessel that traveled in the waters near Vietnam but who never went ashore. The Court of Appeals for Veterans Claims ("the Veterans Court") set aside the DVA's interpretation as unduly restrictive. Haas v. Nicholson, 20 Vet. App. 257 (2006). We hold that the agency's requirement that a claimant have been present within the land borders of Vietnam at some point in the course of his duty constitutes a permissible interpretation of the statute and its implementing regulation, and we therefore reverse the judgment of the Veterans Court.
I
In August 2001, Mr. Haas applied to the Phoenix, Arizona, regional office of the DVA seeking disability compensation for type 2 diabetes, peripheral neuropathy, and loss of eyesight. He claimed that he had been exposed to herbicides while serving *1173 in Vietnam and that based on that exposure he was entitled to a finding of service connection for his conditions.
Mr. Haas served on active duty in the United States Navy from September 1959 to September 1960 and subsequently from May 1963 to June 1970. Service records indicate that from August 1967 to April 1969, Mr. Haas served on the U.S.S. Mount Katmai, which he described as an ammunition supply ship that operated in the West Pacific off the coast of Vietnam. It is undisputed that that Mr. Haas never went ashore, and thus never set foot on the physical landmass of the Republic of Vietnam. Mr. Haas explained that his ship did not visit any ports because it carried highly explosive ammunition and would have posed a threat if docked in a port. Mr. Haas subsequently left active duty and was transferred to the Retired Reserves on July 1, 1982.
Mr. Haas's claim to service connection for his condition is based on his naval service and the presumptive service connection afforded for type 2 diabetes based upon a showing that the veteran "served in the Republic of Vietnam." See 38 U.S.C. §§ 1116(a)(1)(A), (a)(2)(H); 38 C.F.R. § 3.307(a)(6)(iii). In denying his claim, the regional office explained that in order to qualify for a presumption of service connection, Mr. Haas must have "physically served or visited in the Republic of Vietnam." For a sailor serving in the waters offshore, the regional office explained that "the ship must have come to port in the [Republic of Vietnam] and you disembarked." Mr. Haas disagreed with the regional office and contended that "service in the Republic of Vietnam," as defined by 38 C.F.R. § 3.307(a)(6)(iii), should be interpreted to include service in the offshore waters regardless of whether the servicemember's ship came to port and the servicemember disembarked.
On appeal, the Board of Veterans' Appeals affirmed the regional office's decision denying Mr. Haas the presumption of service connection. The Board applied the DVA's regulation, as interpreted by the agency, and ruled that Mr. Haas was not entitled to the statutory presumption for those who served "in the Republic of Vietnam" because he had never "set foot on land in the Republic of Vietnam." As for Mr. Haas's contention that he was actually exposed to herbicides while his ship operated near the coast of Vietnam, the Board rejected his claim on the ground that his allegation was "unsupported by any evidence demonstrating that his ship was located in waters sprayed by herbicides."
Mr. Haas then appealed to the Veterans Court. A three-judge panel of that court reversed the Board's decision. The court first found the phrase "served in the Republic of Vietnam" in 38 U.S.C. § 1116 to be ambiguous. The court explained that "[t]here are many ways in which to interpret the boundaries of a sovereign nation such as the former Republic of Vietnam" and that the "legislative history of the 1991 act ... is silent concerning what constitutes `service in the Republic of Vietnam.'" 20 Vet.App. at 263, 268. Turning to the DVA's interpretation of the statutory language, the court first examined the pertinent regulation, 38 C.F.R. § 3.307(a)(6)(iii). That regulation defines "service in the Republic of Vietnam" as including "service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." The court determined that the regulation "do[es] not clearly preclude application of the presumption [of service connection] to a member of the Armed Forces who served aboard a ship in close proximity to the landmass of the Republic of Vietnam." 20 Vet.App. at 259.
*1174 Finding that the regulation "merely has replaced statutory ambiguity with regulatory ambiguity," the Veterans Court then analyzed the DVA's interpretation of the regulation and concluded that the agency's current interpretation of its regulation conflicts with the agency's earlier interpretation of the same regulation. The court noted that the agency's original instructions to its adjudicators in the Adjudication Manual of the Veterans Benefits Administration, M21-1 ("Manual M21-1"), called for awarding presumptive service connection for specified diseases if the veteran had received the Vietnam Service Medal "in the absence of contradictory evidence," and that those provisions were not altered following the issuance of two precedential DVA General Counsel opinions on related topics. See DVA Op. Gen. Counsel Prec. 27-97 (1997) (finding that service on a deepwater vessel off the shore of Vietnam did not constitute service "in the Republic of Vietnam" under 38 U.S.C. § 101(29)(A)); DVA Op. Gen. Counsel Prec. 7-93 (1993) (finding that service in high altitude planes flying over Vietnam without any other contact with Vietnam did not constitute "service in Vietnam" under 38 C.F.R. § 3.313). Consequently, the court found that when the DVA adopted the "foot-on-land" test, it was reversing its previously established course. 20 Vet.App. at 270-72.
The Veterans Court further concluded that the agency's new interpretation was not a reasonable one. In so ruling, the Veterans Court noted that under the DVA's current interpretation of the regulation, the DVA "would afford the presumption of exposure to Agent Orange to a Vietnam-era veteran who served only in the inland waterways of the Republic of Vietnam and never set foot on land; yet, in order for a Vietnam-era veteran serving in the waters surrounding Vietnam to be entitled to the presumption, he or she must have set foot on land, without consideration as to either the length of time spent patrolling in the waters offshore, or the risks of windblown exposure to Agent Orange sprayed along Vietnam's coastline." 20 Vet.App. at 275. The court explained that
given the spraying of Agent Orange along the coastline and the wind borne effects of such spraying, it appears that these veterans serving on vessels in close proximity to land would have the same risk of exposure to the herbicide Agent Orange as veterans serving on adjacent land, or an even greater risk than that borne by those veterans who may have visited and set foot on the land of the Republic of Vietnam only briefly.
Id. at 273. Based on that reasoning, the court concluded that the DVA's interpretation of section 3.307(a)(6)(iii) was "plainly erroneous" and that the regulation "must be read to include at least service of the nature described by the appellant, that is, service in the waters near the shore of Vietnam." Id.
Finally, the Veterans Court ruled that the pertinent provisions of the DVA's Manual M21-1 were "substantive rules" and that the DVA's amendment of those provisions in February 2002 to incorporate the "foot-on-land" requirement was invalid because the DVA had failed to make that change pursuant to the notice-and-comment requirements of 5 U.S.C. § 553. 20 Vet.App. at 277. Alternatively, the court ruled that the February 2002 changes could not be applied retroactively to Mr. Haas's claim, which had been filed in August 2001, because the effect of the rule change was to narrow the scope of Mr. Haas's substantive rights. Id. at 277-78. The court therefore reversed the Board's denial of Mr. Haas's claim to service connection for diabetes and held that in Mr. Haas's case, the Manual M21-1 provision *1175 "allowing for the application of the presumption of exposure to herbicides based on the receipt of the [Vietnam Service Medal] controls." Id. at 279.
II
This court ordinarily will not hear appeals from the Veterans Court in cases that the Veterans Court remands to the Board of Veterans' Appeals. See Adams v. Principi, 256 F.3d 1318, 1320 (Fed.Cir.2001). Nonetheless, we have held that it is appropriate for us to review such cases in certain circumstances, under the principles set forth in Williams v. Principi, 275 F.3d 1361 (Fed.Cir.2002). This appeal addresses the purely legal question of the proper interpretation of a statute and its implementing regulations, a question that will not be affected by the proceedings on remand. Moreover, postponing review until after completion of the proceedings on remand could deprive the government of its right to review of the legal issue in this case, because the Secretary of Veterans Affairs has no right to seek review of a Board decision in favor of the veteran under 38 U.S.C. § 7252(a). We therefore conclude that this appeal is ripe for review even though the Veterans Court remanded the case for further proceedings before the Board. See Williams, 275 F.3d at 1364.
III
On the merits, the parties disagree about the proper resolution of virtually every issue in this case: whether the phrase "served in the Republic of Vietnam" in the Agent Orange Act of 1991 is ambiguous; whether the DVA's regulation that interprets that phrase is itself ambiguous; whether the agency's interpretation of that regulation is entitled to deference, or instead is unreasonable and inconsistent with the agency's previous, longstanding interpretation of the regulation; and whether the DVA's 2002 modification to Manual M21-1 constituted a substantive regulatory change that could not be given effect without notice-and-comment rulemaking.
A
In order to make sense of the statutory and regulatory arguments made by the parties, it is necessary to review the history of the legislative and regulatory measures directed to the issue of herbicide exposure in Vietnam. That history, both prior to and after the enactment of the Agent Orange Act of 1991, is complex.
Beginning in the late 1970s, Congress responded to widespread expressions of concern by veterans' groups regarding the health effects on Vietnam veterans of exposure to Agent Orange and other herbicides used in the conflict there. In 1979, Congress enacted a provision requiring the Veterans Administration ("VA"), as the agency was then known, to conduct an epidemiological study of persons who, while serving in the armed forces during the war in Vietnam, were exposed to dioxins produced during the manufacture of various herbicides, including Agent Orange, to determine if there might be long-term adverse health effects from such exposure. Pub.L. No. 96-151, § 307, 93 Stat. 1092, 1097-98 (1979). The responsibility for conducting that study was subsequently reassigned to the Centers for Disease Control ("CDC"). See H.R.Rep. No. 98-592, at 5 (1984), as reprinted in 1984 U.S.C.C.A.N. 4449, 4451. Congress directed the VA to publish a description of the actions that it planned to take in response to those reports. Pub.L. No. 97-72, § 401, 95 Stat. 1047, 1061-62 (1981).
In 1984, Congress enacted the Veterans' Dioxin and Radiation Exposure Compensation *1176 Standards Act, Pub.L. No. 98-542, 98 Stat. 2725 (1984). Section 5 of that Act directed the VA to prescribe regulations establishing guidelines and standards for resolving claims for benefits based on exposure during service "in the Republic of Vietnam during the Vietnam era to a herbicide containing dioxin." In particular, the statute called the VA's attention to evidence that three diseases chloracne, porphyria cutanea tarda, and soft tissue sarcoma are associated with exposure to certain levels of dioxin and directed the VA to determine whether service connection should be granted in individual cases involving each of those diseases. Id. §§ 2(5), 5(b)(2)(A)(i), 5(b)(2)(B).
In response, the VA promulgated a regulation that presumed exposure to a herbicide containing dioxin for any veteran who served "in the Republic of Vietnam" during the Vietnam era. The regulation concluded that the development of chloracne manifested within three months of exposure would be presumed to be service-connected, but that porphyria cutanea tarda and soft tissue sarcomas were not sufficiently associated with dioxin exposure to warrant similar treatment. 38 C.F.R. § 3.311a (1986); see 50 Fed.Reg. 34,452 (Aug. 26, 1985). The regulation defined "Service in the Republic of Vietnam" to include "service in the waters offshore and service in other locations, if the conditions of service involved duty or visitation in the Republic of Vietnam." 38 C.F.R. § 3.311a(a)(1) (1986). The VA explained that the regulation was adopting the VA's "longstanding policy of presuming dioxin exposure in the cases of veterans who served in the Republic of Vietnam during the Vietnam era." 50 Fed.Reg. at 34,454-55. That policy was "based on the many uncertainties associated with herbicide spraying during that period which are further confounded by lack of precise data on troop movements at the time." Id. at 34,455. "While it may be possible to approximate areas where herbicides were sprayed," the agency wrote, "it would be extremely difficult to determine with an acceptable degree of precision whether an individual veteran was exposed to dioxin." Id. Accordingly, the agency adhered to its prior policy of presuming exposure for servicemembers who had served in Vietnam. In addition, the agency provided that because some military personnel who were stationed elsewhere "may have been present in the Republic of Vietnam, `service in the Republic of Vietnam' will encompass service elsewhere if the person concerned actually was in the Republic of Vietnam, however briefly." (50 Fed.Reg. 15,848, 15,849) (Apr. 22, 1985) (proposed rule). The VA added that "[i]n view of shifting personnel deployments, absence of on-site measurement of dioxin contamination and other factors the Agency has adhered to a policy of presuming exposure if the veterans served in Vietnam during the relevant period. This section formalizes that existing policy." Id. at 15,849; see also 50 Fed.Reg. 34,452 (Aug. 26, 1985) (adopting proposed rule unamended).
Meanwhile, congressional committees continued to hold hearings to assess the epidemiological studies of Agent Orange that had been mandated in 1979. Those studies were designed to determine whether any component of Agent Orange not just dioxin affected human health, although given its notoriety dioxin often figured prominently in the research and analysis. See Veterans and Agent Orange at x; see also id. at 28-36 (discussing history of research on Agent Orange). The success of those studies depended on determining which veterans had been exposed to Agent Orange and the extent of their exposure, so that health problems among veterans who had been highly exposed could be compared to those of a control *1177 group. See id. at 58. The VA and the CDC ran into a series of problems in attempting to make that determination. Initially, it was believed that exposure could be deduced from studying ground troop movements in conjunction with records of aerial spraying of Agent Orange. See id. That approach proved unworkable, as a representative of the Centers for Disease Control explained in testimony before a subcommittee of the House Committee on Veteran's Affairs:
When CDC got into this, it was assumed there would be records that could determine exactly where an individual was on a given day, and that could be correlated with known [herbicide] use. I think with the finest use of existing records, you cannot separate between exposed and unexposed. You can get some ... approximations, but it would be a disservice to veterans and to everyone to proceed with an expensive study of this nature if you can't clearly differentiate between who's been exposed and who's not exposed. Without that, you have no basis to proceed with doing a study.
Agent Orange Studies: Hearing Before the Subcomm. on Hospitals and Health Care of the H. Comm. on Veterans' Affairs, 99th Cong. 15 (1986) ("1986 House Hearing") (statement of James O. Mason, CDC Director); see also Veterans and Agent Orange at 58.
In light of those difficulties, the CDC attempted to derive an exposure index through other means. Initially, an attempt was made to develop an index by measuring the amount of dioxin present in fat samples from veterans. 1986 House Hearing at 81-83 (statement of James O. Mason, CDC Director). Although the objective was to study Agent Orange, it was expected that determining dioxin levels would indicate the degree of exposure to Agent Orange. See Veterans and Agent Orange at 259-62 (describing use of dioxin as a "biomarker"). That procedure, however, did not bear fruit because of the practical difficulties of obtaining fatty tissue samples. Id. at 82-83. Subsequent research based on blood tests did not reveal any difference in the blood levels of dioxin between a group of veterans stationed in Vietnam and a control group of veterans stationed outside of Vietnam. The CDC ultimately concluded that it had no validated scientific method of identifying a group of veterans who were highly exposed to Agent Orange. Agent Orange Legislation and Oversight: Hearing on S. 1692, the Proposed "Agent Orange Disabilities Benefits Act of 1987"; S. 1787, the proposed "Veterans' Agent Orange Disabilities Act of 1987"; and Agent Orange Oversight Issues Before the S. Comm. on Veterans' Affairs, 100th Cong. 165-66 (1988) (statement of Thomas E. Harvey, Deputy Administrator of the VA). The CDC explained that "the Agent Orange Exposure Study ... cannot be done.... The difficulty is and has always been the inability to discriminate between exposed and unexposed ground troops." Id. at 165 (discussing the inability to derive an exposure index from military records, self-reporting, and direct measurements of dioxin from tissue samples).
Although the CDC was unable to conduct the Agent Orange exposure study as it was originally conceived by Congress in 1979 due to the inability to identify with scientific certainty which Vietnam veterans had been highly exposed to Agent Orange, there remained other sources of scientific information on the health effects of Agent Orange and dioxin in humans. One ongoing study focused on the group of Vietnam veterans who had been involved in the aerial spraying of Agent Orange, known as the "Ranch Hand study" after the name of the mission responsible for *1178 conducting the spraying operation. See Veterans and Agent Orange at 53. Further data has also been available, for example, from populations that were exposed to chemical accidents involving dioxin, workers at factories manufacturing herbicides, and agricultural or forestry workers who were exposed to herbicides similar to Agent Orange or herbicides containing dioxin before their use was largely banned in the United States. See id. at 36-45.
Against the backdrop of the ongoing scientific investigations, the VA declined to change its regulations after 1985 to provide a presumption of in-service exposure for any diseases other than chloracne, on the ground that the scientific evidence did not show a statistically probable association between Agent Orange exposure and any other disease. In litigation initiated by veterans' advocacy groups, however, a federal district court ruled that the agency, by then renamed the Department of Veterans Affairs, had applied too stringent a standard for determining which diseases to include in its regulations promulgated under the 1984 Dioxin Act. See Nehmer v. U.S. Veterans Admin., 712 F. Supp. 1404, 1420 (N.D.Cal.1989). The DVA subsequently amended its regulation, 38 C.F.R. § 3.311a, to include soft tissue sarcomas. See 56 Fed.Reg. 7632 (Feb. 25, 1991) (proposed rule); 56 Fed.Reg. 51,651 (Oct. 15, 1991) (final rule).
In October 1990, the DVA promulgated a separate regulation providing that "Service in Vietnam during the Vietnam Era," together with subsequent development of non-Hodgkin's lymphoma, "is sufficient to establish service connection for that disease." 38 C.F.R. § 3.313. That regulation was based on information in a CDC study that had been released earlier that year. See 55 Fed.Reg. 25,339 (June 21, 1990) (proposed rule). The CDC study found a statistically significantly elevated level of non-Hodgkin's lymphoma among Vietnam veterans by comparing veterans who served in Vietnam and those who served in other locations during the Vietnam era. For purposes of the analysis, the study treated veterans who were stationed off the coast of Vietnam as Vietnam veterans. See The Association of Selected Cancers with Service in the U.S. Military in Vietnam, as reprinted in Centers for Disease Control Selected Cancers Study and Scientific Reviews of the Study: Hearing before the H. Comm. On Veterans' Affairs, 101st Cong.2d Sess. 106 (1990) ("1990 CDC Study"). The study concluded that there was no evidence that the increased risk of non-Hodgkin's lymphoma among Vietnam veterans was related to exposure to Agent Orange in Vietnam. Id. at 81, 125.
In the 1990 regulation, the DVA defined "Service in Vietnam" to include "service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam." 38 C.F.R. § 3.313 (1991). That language was similar to the language previously used to define "service in the Republic of Vietnam," but it differed in two subtle, but important respects. First, the 1990 regulation referred to "Service in Vietnam" rather than using the statutory phrase "service in the Republic of Vietnam." Second, the placement of the comma before the word "or" in the definition of "service in Vietnam" in the 1990 regulation, section 3.313, suggested that the requirement of visitation or duty in Vietnam applied to "service in other locations," but not to "service in the waters offshore." Section 3.311 a used the word "and" rather than "or" and did not have a comma separating the reference to "service in the waters offshore" and "service in other locations," which suggested that the requirement of visitation or duty in the Republic of Vietnam applied to both of those forms of extraterritorial service.
*1179 The government does not dispute that the 1990 non-Hodgkin's lymphoma regulation, which is still in effect, applies to veterans who served "offshore" and never visited the landmass of Vietnam, as those veterans were among those found to have an elevated risk of non-Hodgkin's lymphoma in the 1990 CDC study. In fact, in 1993 the DVA issued a General Counsel opinion in which the agency explicitly stated that the non-Hodgkin's lymphoma regulation covers servicemembers who served in the waters off the shore of Vietnam, although the opinion concluded that the regulation does not cover servicemembers whose involvement in the Vietnam theater was limited to high-altitude missions in Vietnamese airspace. DVA Op. Gen. Counsel Prec. 7-93 (Aug. 12, 1993).
By contrast, the government asserts that under the more general 1985 dioxin exposure regulation, section 3.311 a, a veteran who served offshore must have set foot on the landmass of Vietnam in order to satisfy the regulatory definition of having served "in the Republic of Vietnam." The punctuation of the earlier definition in the 1985 regulation, section 3.311a, supports the government's position, as it suggests that the requirement of visitation or duty in the Republic of Vietnam applies to both "service in other locations" and "service in the waters offshore."
In 1991, Congress enacted the Agent Orange Act, Pub.L. No. 102-4, 105 Stat. 11, which established a more comprehensive statutory framework for herbicide-based claims. As enacted, the Agent Orange Act specified three diseases non-Hodgkin's lymphoma, certain soft tissue sarcomas, and chloracne and provided that when one of those diseases became manifest "in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era," the disease would be considered to have been incurred in or aggravated by such service.[1] Pub.L. No. 102-4, § 2(a), 105 Stat. 11, 12 (1991) (now codified, as amended, at 38 U.S.C. § 1116(a)(1)). In addition, the Act directed the DVA to identify other diseases associated with herbicide exposure. The Act provided that any veteran who "served in the Republic of Vietnam during the Vietnam era" and has a disease designated by the Secretary "shall be presumed to have been exposed during such service to an herbicide agent containing dioxin or 2, 4-dichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." Pub.L. No. 102-4, § 2(a), 105 Stat. at 12 (now codified, as amended, at 38 U.S.C. § 1116(f)).
The legislative history of the Agent Orange Act indicates that Congress sought to strike a balance between waiting for the results of scientific research regarding the effects of Agent Orange and providing benefits for Vietnam veterans with current health problems. The Chairman of the House Committee on Veterans' Affairs stated:
The question of whether compensation should be paid for disabilities allegedly *1180 related to exposure to herbicides has gone on for much too long.... It has received an inordinate amount of attention and energy. It is time to move on and, in doing so, to leave in place a mechanism for continuing scientific scrutiny which, if allowed to work, can assuage the remaining concerns of affected veterans.
137 Cong. Rec. 2348 (1991) (statement of Rep. Montgomery). The Act therefore codified the presumption of service connection for the three diseases already covered by DVA regulations, mandated independent scientific review through the National Academy of Sciences, and instructed the Secretary of the DVA to consider designating additional diseases as service-connected when recommended by the National Academy of Sciences. Importantly for present purposes, the focus of Congress's attention was on the scientific evidence as to what diseases were linked to Agent Orange exposure; there was no indication during the legislative process that Congress focused on the precise scope that should be attached to the statutory phrase "served in the Republic of Vietnam."
When the DVA drafted regulations for the Agent Orange Act, it incorporated the definition of the phrase "service in the Republic of Vietnam" from the 1985 general dioxin exposure regulation, 38 C.F.R. § 3.311a. See 58 Fed.Reg. 50,528, 50,529 (Sept. 28, 1993) (adopting amended section 3.307(a)(6)). Thus, the DVA defined "service in the Republic of Vietnam" to mean "service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." 38 C.F.R. § 3.307(a)(6)(iii) (1994). The DVA explained that in light of the enactment of the Agent Orange Act it was no longer necessary to retain the general dioxin exposure regulation, 38 C.F.R. § 3.311a. However, the DVA noted that the definition of the phrase "service in the Republic of Vietnam" in the new regulation would be incorporated directly from the definition in section 3.311a. 58 Fed.Reg. 50,528, 50,529 (Sept. 28, 1993) (proposed rule).
The following year, the DVA issued another set of regulations in which it added Hodgkin's disease and porphyria cutanea tarda to the list of diseases for which the agency would presume exposure and service connection based on presence in Vietnam during the Vietnam era. See 59 Fed. Reg. 5106 (Feb. 3, 1994). The new regulation retained the language from the general dioxin exposure regulation of 1985 and continued to define "service in the Republic of Vietnam" to include "service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." 38 C.F.R. § 3.307(a)(6)(iii) (1995).
The question whether the phrase "service in the Republic of Vietnam" included servicemembers whose service was limited to ships that had traveled in waters off the shore of Vietnam came into sharp focus in 1997. First, in a precedential General Counsel opinion issued that year, the DVA construed the phrase "served in the Republic of Vietnam" in 38 U.S.C. § 101(29)(A) not to apply to servicemembers whose service was on ships and who did not serve within the borders of the Republic of Vietnam during a portion of the "Vietnam era." The opinion stated that the definition of the phrase "service in the Republic of Vietnam" in the Agent Orange regulation, 38 C.F.R. § 3.307(a)(6)(iii), "requires that an individual actually have been present within the boundaries of the Republic to be considered to have served there," and that for purposes of both the Agent Orange regulation and section 101(29)(A), service "in the Republic of Vietnam" does not include service *1181 on ships that traversed the waters offshore of Vietnam absent the servicemember's presence at some point on the landmass of Vietnam. DVA Op. Gen. Counsel Prec. 27-97 (1997).
Later that same year, in a proposed regulation addressing incidents of spina bifida among the children of servicemembers who had served in Vietnam, the DVA proposed to use the same regulatory definition for "service in the Republic of Vietnam" that it had used in the 1985 regulation and the Agent Orange regulation. See 62 Fed.Reg. 23,724, 23,725 (May 1, 1997) (proposed rule). A commenter objected to the definitional language and urged that the phrase "if the conditions of service involved duty or visitation in the Republic of Vietnam" be eliminated from the regulation. See 62 Fed. 51,274, 51,274-75 (Sept. 30, 1997) (final rule). The DVA declined to make that change. It explained the reason for not making the suggested change as follows:
Because herbicides were not applied in waters off the shore of Vietnam, limiting the scope of the term service in the Republic of Vietnam to persons whose service involved duty or visitation in the Republic of Vietnam limits the focus of the presumption of exposure to persons who may have been in areas where herbicides could have been encountered.
62 Fed.Reg. at 51,274.
In 2001, the DVA issued a proposed regulation to include type 2 diabetes among the illnesses for which presumptive service connection would be recognized based on herbicide exposure. See 66 Fed. Reg. 2376 (Jan. 22, 2001) (proposed rule). The proposed regulation would presume herbicide exposure based on "service in the Republic of Vietnam," which would continue to be defined to cover service in waters offshore of Vietnam "if the conditions of service involved duty or visitation in the Republic of Vietnam." The DVA subsequently adopted the proposed rule including type 2 diabetes among those diseases as to which presumptive service connection would be recognized. 66 Fed.Reg. 23,166 (May 8, 2001) (final rule).
In the course of the rulemaking proceeding, a comment was made urging the DVA to use that proceeding to make clear that "service in the Republic of Vietnam" includes "service in Vietnam's inland waterways or its territorial waters." The comment was based on the assertion that U.S. military personnel had been exposed to herbicides while serving in those locations. In its final rulemaking order, the DVA responded that it is "commonly recognized" that the statutory term "in the Republic of Vietnam" includes the inland waterways. 66 Fed.Reg. at 23,166. With respect to service in the offshore waters, however, the DVA explained that even before the enactment of the Agent Orange Act, the agency had taken the position that service offshore required some duty or visitation within the Republic of Vietnam to qualify for the presumptions of herbicide exposure and service connection, and that service on a deepwater vessel offshore did not constitute such service. The DVA added that the commenter had cited "no authority for concluding that individuals who served in the waters offshore of the Republic of Vietnam were subject to the same risk of herbicide exposure as those who served within the geographical boundaries of the Republic of Vietnam, or for concluding that offshore service is within the meaning of the statutory phrase `Service in the Republic of Vietnam.'" Id. Accordingly, the agency declined to make the suggested change. Later that year, Congress followed the DVA's lead by adding type 2 diabetes to the list of diseases included in section 1116(a)(2). See Veterans Education and Benefits Expansion Act of *1182 2001, Pub.L. No. 107-103, § 201(b), 115 Stat. 967.
In early 2002, the DVA amended the language of its Adjudication Manual M21-1 to specifically incorporate the agency's "foot-on-land" interpretation of the Agent Orange regulations. Before the amendment, the Manual provided that in determining whether a veteran had "service in Vietnam," it would ordinarily be sufficient that the veteran had received the Vietnam Service Medal, but that it might be necessary in some cases to determine if the veteran's ship had been in the vicinity of Vietnam for some significant period of time. The amended version of Manual M21-1, published in February 2002, stated that, under section 3.307(a)(6) of the regulations, a veteran "must have actually served on land within the Republic of Vietnam (RVN) to qualify for the presumption of exposure to herbicides." M21-1, part III, paragraph 4.24(e)(1) (Feb. 27, 2002). It added that the fact that a veteran has been awarded the Vietnam Service Medal "does not prove that he or she was `in country,'" because servicemembers "who were stationed on ships off shore, or who flew missions over Vietnam, but never set foot in-country, were sometimes awarded the Vietnam Service Medal." Id.
In 2004, the DVA published a proposed rule, as part of a proposed wholesale revision of the DVA's regulations, in which it once again articulated its position with respect to offshore service. Citing the diabetes regulation, the DVA explained that veterans who served on the inland waterways of Vietnam "may have been exposed to herbicides" and that service on the inland waterways "constitutes service in the Republic of Vietnam" within the meaning of 38 U.S.C. § 1116. However, the agency restated that it was
not aware of any valid scientific evidence showing that individuals who served in the waters offshore of the Republic of Vietnam or in other locations were subject to the same risk of herbicide exposure as those who served within the geographic land boundaries of the Republic of Vietnam. Furthermore, we are not aware of any legislative history suggesting that offshore service or service in other locations are within the meaning of the statutory phrase, "Service in the Republic of Vietnam."
69 Fed.Reg. 44,614, 44,620 (July 27, 2004) (proposed rule). Accordingly, the DVA proposed to revise its regulation "to make it clear that veterans who served in waters offshore but did not enter Vietnam, either on its land mass or in its inland waterways cannot benefit from this presumption." Id.
The new benefits regulations, including the proposed rule regarding offshore service, have not yet been finally adopted. However, while this appeal was pending the DVA initiated a rulemaking proceeding that would amend section 3.307(a)(6)(iii) to incorporate the DVA's interpretation of the regulation as part of the regulatory text. The amended version of the regulation would define "service in the Republic of Vietnam" for purposes of section 3.307 to include "only service on land, or on an inland waterway, in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975." 73 Fed.Reg. 20,566, 20,571 (Apr. 16, 2008). In explaining the reason for the amendment, the agency referred to the litigation in this case and then stated that in its view the statutory reference to service in the Republic of Vietnam "is most reasonably interpreted to refer to service within the land borders of the Republic of Vietnam." Id. at 20,568. The agency explained its position as follows:
It is both intuitively obvious and well established that herbicides were commonly *1183 deployed in foliated land areas and would have been released seldom, if at all, over the open waters off the coast of Vietnam. The legislative and regulatory history indicates that the purpose of the presumption of exposure was to provide a remedy for persons who may have been exposed to herbicides because they were stationed in areas where herbicides were used, but whose exposure could not actually be documented due to inadequate records concerning the movement of ground troops.
Because it is known that herbicides were used extensively on the ground in the Republic of Vietnam, and because there are inadequate records of ground-based troop movements, it is reasonable to presume that any veteran who served within the land borders of Vietnam was potentially exposed to herbicides, unless affirmative evidence establishes otherwise. There is no similar reason to presume that veterans who served solely in the waters offshore incurred a significant risk of herbicide exposure.
Id. Although the DVA conceded that it was "conceivable that some veterans of offshore service incurred exposure under some circumstances due, for example, to airborne drift, groundwater runoff, and the proximity of individual boats to the Vietnam coast," it stated that for purposes of the presumption of exposure, "there is no apparent basis for concluding that any such risk was similar in kind or degree to the risk attending service within the land borders of the Republic of Vietnam." Id. Moreover, observing that offshore service "encompasses a wide range of service remote from land and thus from areas of actual herbicide use," the DVA concluded that "there is no reason to believe that any risk of herbicide exposure would be similarly pervasive among veterans of offshore service as among veterans of service within the land borders of Vietnam." Id.
B
We first address the government's argument that the pertinent language of 38 U.S.C. § 1116 is ambiguous and that the DVA's regulation issued pursuant to that statute, 38 C.F.R. § 3.307(a)(6)(iii), is entitled to deference as a permissible interpretation of the statute. Under the Chevron doctrine, "when an agency invokes its authority to issue regulations, which then interpret ambiguous statutory terms, the courts defer to its reasonable interpretations." Fed. Express Corp. v. Holowecki, ___ U.S. ___, 128 S. Ct. 1147, 1154, 170 L. Ed. 2d 10 (2008); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984) (a court will defer to an agency's regulatory interpretation of a statute if the statute is ambiguous or contains a gap that Congress has left for the agency to fill through regulation). "Step one" of the Chevron analysis considers whether "Congress has directly spoken to the precise question at issue," a question that we analyze using the traditional tools of statutory interpretation. Chevron, 467 U.S. at 842-43, 104 S. Ct. 2778; Cathedral Candle Co. v. Int'l Trade Comm'n, 400 F.3d 1352, 1362 (Fed. Cir.2005).
The relevant portion of section 1116(a)(1)(A) provides that for a veteran who suffers from one of several specified diseases, including type 2 diabetes, and who "during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975," the disease "shall be considered to have been incurred in or aggravated by such service." As applied to veterans who served in waters offshore of Vietnam but not on the landmass of Vietnam, the Veterans Court concluded that the statutory phrase *1184 "served in the Republic of Vietnam" is ambiguous.[2]
The court first noted that "[t]here are many ways in which to interpret the boundaries of a sovereign nation such as the former Republic of Vietnam." 20 Vet. App. at 263. The court then surveyed different sources that define sovereign nations in different ways, ranging from including only the nation's landmass to including the nation's "exclusive economic zone," which can extend up to 200 miles from the coastline. Id. at 263-64. The government agrees with the Veterans Court that section 1116 is ambiguous in this respect. Mr. Haas, however, argues that the statute has a plain meaning that covers servicemembers in his position.
Addressing the phrase "served in the Republic of Vietnam," Mr. Haas asserts that "[a]ll relevant definitions of the sovereign nation of the Republic of Vietnam include the territorial waters off the landmass of Vietnam." To support that assertion, Mr. Haas cites to two definitions identified by the Veterans Court, Presidential Proclamation 5928 (1989) and the United Nations Convention on the Law of the Sea ("UNCLOS"). Both definitions include the nation's "territorial sea," which is generally defined as extending 12 nautical miles from a nation's coast. Yet Mr. Haas does not explain why other definitions, such as the contrary ones cited by the Veterans Court, are not "relevant." Neither the language of the statute nor its legislative history indicates that Congress intended to designate one of the competing methods of defining the reaches of a sovereign nation. We therefore agree with the Veterans Court that the statutory phrase "served in the Republic of Vietnam" is ambiguous as applied to service in the waters adjoining the landmass of Vietnam.
Based on a textual analysis of section 1116, Mr. Haas asserts that Congress made its intention clear that active duty personnel who served on ships offshore of Vietnam should be considered to have "served in the Republic of Vietnam" within the meaning of 38 U.S.C. § 1116(a)(1)(A). His argument is that if a veteran "served in the Republic of Vietnam" and has one of the diseases listed in section 1116(a)(2), such as diabetes, the veteran does not need to provide evidence that he or she was actually exposed to herbicides. By contrast, under section 1116(a)(1)(B), service connection is presumed only if the veteran "served in the Republic of Vietnam" and "while so serving was exposed to" an herbicide. Because proof of actual exposure is not required under section 1116(a)(1)(A), Mr. Haas argues that there is no reason to require proof of actual presence on the landmass of Vietnam. He contends that the government's asserted justification for the "foot-on-land" approach that herbicides are only sprayed on land is not relevant under section 1116(a)(1)(A), which by its terms does not require direct herbicide exposure.
*1185 Contrary to Mr. Haas's contention, the statutory provision that obviates the need to prove herbicide exposure for certain diseases neither says nor implies anything about the meaning of the phrase "served in the Republic of Vietnam." Congress simply concluded that for those who served in Vietnam, it was too difficult to determine who was exposed and who was not. But in so concluding, Congress did not indicate that service "in" the Republic of Vietnam included service on the waters offshore or in any other location nearby. Nor did Congress suggest that exposure was not important to the determination of service connection. The entire predicate for the Agent Orange Act and its regulations was exposure to herbicides in general and Agent Orange in particular. The fact that Congress presumed exposure for veterans who served in Vietnam does not by any means suggest that exposure was considered unimportant and that veterans in other areas therefore do not have to prove exposure. Thus, there is no force to Mr. Haas's argument based on the difference between section 1116(a)(1)(A) and section 1116(a)(1)(B).
Mr. Haas next contends that the legislative history of the Agent Orange Act demonstrates that Congress intended to give those who served only in offshore waters the benefit of section 1116(a). His argument is based on statements in the legislative history of the Agent Orange Act that Congress intended to codify the DVA's then-existing regulations on diseases meriting a presumption of service connection for Vietnam veterans. See, e.g., 137 Cong. Rec. 2345 (1991) (statement of Rep. Montgomery) ("This compromise would codify administrative decisions of the Secretary of Veterans Affairs in deeming three conditions service-connected for compensation purposes."); id. at 2352 (statement of Rep. Stump) ("H.R. 556 codifies current VA policy regarding agent orange compensation by establishing in statute a presumption of service-connection for non-Hodgkin's lymphoma, soft-tissue sarcoma, and chloracne.").
The problem with that argument is that the references to the regulatory presumptions in the legislative history did not distinguish between the broader definition of "service in Vietnam" provided in the non-Hodgkin's lymphoma regulation (section 3.313) and the narrower definition of "service in the Republic of Vietnam" found in the chloracne/soft tissue sarcoma regulation (section 3.311a). In the absence of any clearer statement in the legislative record, which Mr. Haas has not identified, the remarks about the existing regulations do not support the construction of the statutory phrase "served in the Republic of Vietnam" that he advocates. If anything, the different circumstances that prompted the issuance of the two regulations and the fact that only the chloracne/soft tissue sarcoma regulation used the precise phrase that was later incorporated into the statute "service in the Republic of Vietnam" (section 3.311a) rather than "service in Vietnam" (section 3.313) suggest the contrary conclusion. The chloracne/soft tissue sarcoma regulation was based on scientific evidence linking those diseases to dioxin exposure. The Agent Orange Act was similarly designed to provide compensation for exposure to Agent Orange. The non-Hodgkin's lymphoma regulation, by contrast, was not predicated on exposure, but instead was based on evidence of an association between non-Hodgkin's lymphoma and service in the Vietnam theater, including service aboard ships. Thus, the Agent Orange Act closely tracked the narrower chloracne/soft tissue sarcoma regulation, which defined "service in the Republic of Vietnam" to apply to those who served in the waters offshore *1186 only if their service included "duty or visitation in the Republic of Vietnam."
C
Having concluded that the phrase "served in the Republic of Vietnam" in section 1116 is ambiguous, we next turn to "step two" of the Chevron analysis, which requires a court to defer to an agency's authorized interpretation of the statute in question if "the agency's answer is based on a permissible construction of the statute." Chevron, 467 U.S. at 843, 104 S. Ct. 2778. We therefore address the DVA regulation that defines the phrase "service in the Republic of Vietnam" to mean "service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." 38 C.F.R. § 3.307(a)(6)(iii).
First, we note that Congress has given the DVA authority to interpret the statute, both under its general rulemaking authority, 38 U.S.C. § 501, and in the Agent Orange Act itself, 38 U.S.C. § 1116(a)(1)(B). Second, we agree with the Veterans Court that the regulation reflects a reasonable interpretation of the statute in that it requires some presence in Vietnam, even if the veteran's service largely occurred elsewhere.
The government contends that the regulation makes clear that service connection is presumed only for veterans who were at some point present on the landmass of Vietnam. We believe that is probably the most natural reading of the language of the regulation that refers to "duty or visitation in the Republic of Vietnam." That is, we agree with the government that "duty or visitation" in the Republic of Vietnam seems to contemplate actual presence on the landmass of the country. However, the question as to the meaning of the phrase "duty or visitation in the Republic of Vietnam" is not free from doubt, as "duty" or "visitation" could be understood to refer to "duty" or "visitation" within the broader area encompassed, for example, by the territorial waters of the Republic. Thus, both the phrase "duty or visitation in the Republic of Vietnam" and the phrase "waters offshore" are sufficiently ambiguous that the language of the regulation cannot be said to resolve the issue with certainty.
D
For that reason, we must look to the DVA's interpretation of its own regulation and determine whether that interpretation resolves the legal issue before us. Generally, "an agency's interpretation of its own regulations is controlling unless plainly erroneous or inconsistent with the regulations being interpreted." Long Island Care at Home, Ltd. v. Coke, ___ U.S. ___, 127 S. Ct. 2339, 2346, 168 L. Ed. 2d 54 (2007) (internal quotations omitted); see also Auer v. Robbins, 519 U.S. 452, 461-63, 117 S. Ct. 905, 137 L. Ed. 2d 79 (1997). An agency's interpretation of its regulations is entitled to "substantial deference," requiring a court to defer to the agency's interpretation "unless an alternative reading is compelled by the regulation's plain language or by other indications of the [agency's] intent at the time of the regulation's promulgation." Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S. Ct. 2381, 129 L. Ed. 2d 405 (1994), quoting Gardebring v. Jenkins, 485 U.S. 415, 430, 108 S. Ct. 1306, 99 L. Ed. 2d 515 (1988).
That rule does not apply if a particular regulation merely "parrots" statutory language, because if it did, an agency could bypass meaningful rule-making procedures by simply adopting an informal "interpretation" of regulatory language taken directly from the statute in question. See Gonzales v. Oregon, 546 U.S. 243, 257, 126 S. Ct. 904, 163 L. Ed. 2d 748 (2006); Christensen *1187 v. Harris County, 529 U.S. 576, 588, 120 S. Ct. 1655, 146 L. Ed. 2d 621 (2000) (an agency cannot "under the guise of interpreting a regulation ... create de facto a new regulation"). In this case, however, we are satisfied that the DVA regulation does more than merely parrot section 1116. The Supreme Court in Gonzales v. Oregon characterized the regulation in that case as a parroting regulation because it "just repeats two statutory phrases and attempts to summarize the others." 546 U.S. at 257, 126 S. Ct. 904. The Court added that the regulation "gives little or no instruction on a central issue." Id. By contrast, the regulation at issue in this case, 38 C.F.R. § 3.307(a)(6)(iii), elaborates on the statutory phrase "served in the Republic of Vietnam" by construing it to include service offshore and service in other locations as long as the service "involved duty or visitation in the Republic of Vietnam." That language qualifies as interpretation rather than reiteration.
The fact that the regulation is itself subject to competing interpretations, depending on whether it is read to require duty or visitation on land, as opposed to duty or visitation within Vietnam's territorial waters, does not mean that the regulation merely parrots the statute. It is not unusual for an interpretive regulation to be itself ambiguous; that happens, in fact, whenever a court is required to look to an agency's interpretation of a regulation that in turn interprets a statute. See, e.g., Auer, 519 U.S. at 461-63, 117 S. Ct. 905; Cathedral Candle Co., 400 F.3d at 1352, 1363-64. In such cases, courts do not disregard the regulation and its interpretation as long as the regulation reflects the agency's exercise of its interpretive authority and does not simply "restate the terms of the statute itself." Gonzales, 546 U.S. at 257, 126 S. Ct. 904; see id. at 256, 126 S. Ct. 904 (deference was accorded to the agency's interpretation in Auer because "the underlying regulations gave specificity to a statutory scheme the [agency] was charged with enforcing and reflected the considerable experience and expertise the [agency] had acquired over time...."). For these reasons, it is appropriate to defer to the DVA's asserted interpretation unless it is plainly erroneous or inconsistent with the regulations.
The Veterans Court concluded that it did not need to grant deference to the DVA's interpretation of section 3.307(a)(6)(iii) for several reasons: because the DVA's interpretation of the regulation has been inconsistent; because the DVA's interpretation was based on what the court considered plainly erroneous statutory analysis in a precedential opinion of the DVA's General Counsel; and because the court regarded the DVA's interpretation as unreasonable in that the agency has interpreted service in Vietnam differently under two different regulations and has failed to point to scientific evidence supporting its interpretation. We address each issue in turn.
1. The Veterans Court first decided that the DVA's current interpretation of section 3.307(a)(6)(iii) conflicts with the agency's prior interpretation of the regulation, and that the agency's current interpretation therefore merits less deference than it might otherwise deserve. We agree with the Veterans Court that there has been some inconsistency in the DVA's application of section 3.307(a)(6)(iii), but we do not agree that the DVA's inconsistency deprives the agency's interpretation of entitlement to deference, particularly in light of the fact that the agency has interpreted its regulation consistently for some years, going back to a time well before Mr. Haas filed the application for benefits that is at issue in this case.
*1188 For several years after the enactment of the Agent Orange Act and the corresponding regulations, the DVA did not formally interpret the regulatory reference to service "in the Republic of Vietnam." During that period the agency did not give any explanation of the meaning of the proviso requiring "duty or visitation in the Republic of Vietnam" in cases involving servicemembers whose principal service was in the waters offshore of Vietnam.
During that period, DVA adjudicators relied on the DVA's Adjudication Manual M21-1, which instructed DVA adjudicators on how to determine whether claimants had served "in the Republic of Vietnam." That 1991 version of Manual M21-1 provided as follows in pertinent part:
(1) It may be necessary to determine if a veteran had "service in Vietnam" in connection with claims for service connection for non-Hodgkin's lymphoma, soft-tissue sarcoma and chloracne.... In the absence of contradictory evidence, "service in Vietnam" will be conceded if the records shows [sic] that the veteran received the Vietnam Service Medal.
(2) If a veteran who did not receive the Vietnam Service Medal claims service connection for non-Hodgkin's lymphoma, soft tissue sarcoma or chloracne and alleges service on a ship in the waters offshore Vietnam, review the record for evidence that the ship was in the vicinity of Vietnam for some significant period of time (i.e., more than just in transit through the area). If the veteran cannot produce evidence that the ship was in the waters offshore Vietnam, contact the Compensation and Pension Service Projects Staff. Be prepared to furnish the name of the ship, the number of the ship, and the dates that it is alleged to have been in the waters offshore Vietnam. M21-1, part III, paragraph 4.08(k). The government contends on appeal, as it did in the Veterans Court, that the "contradictory evidence" mentioned in paragraph (1) has always included evidence that a veteran did not set foot in Vietnam. The Veterans Court concluded, however, that the second paragraph addressing the special case of veterans on board ships, which never mentions a foot-on-land requirement, would not have been necessary if the first paragraph had already implicitly contained a requirement that the veteran set foot on land in order to have "served in the Republic of Vietnam." 20 Vet.App. at 276.
We agree with the Veterans Court's analysis of the Manual M21-1 provision. The government's argument that the Manual provision incorporates the requirements of section 3.307(a)(6)(iii) simply reads too much into the "contradictory evidence" provision of Manual M21-1. In particular, the government's contention that M21-1 has always contained a "foot-on-land" requirement is unconvincing given that the Vietnam Service Medal was awarded to a broader class of service members than those who served on the landmass of Vietnam. See Exec. Order No. 11231 (July 8, 1965) (establishing award of the Vietnam Service Medal "to members of the armed forces who serve[d] in Vietnam or contiguous waters or air space").
Moreover, paragraph (2) of the Manual M21-1 provision, which refers to the possible need to review evidence that a veteran's ship was in the vicinity of Vietnam for some period of time, suggests that the Adjudication Manual did not exclude the possibility of benefits being granted to a veteran who never set foot in Vietnam. We therefore reject the government's suggestion that the DVA's current interpretation of the "service in the Republic of Vietnam" language in section *1189 3.307(a)(6)(iii) could be discerned from the outset in Manual M21-1.
Even though the 1991 version of the Manual and later versions issued on several occasions during the 1990s do not reflect the DVA's present interpretation of section 3.307(a)(6)(iii), the Veterans Court was nonetheless mistaken to conclude that the inconsistency between the early versions of the Manual and the agency's current interpretation of the regulation deprives the DVA's current interpretation of the right to judicial deference. As noted above, the DVA adopted its current interpretation of section 3.307(a)(6)(iii) in 1997. Since that time, it has reiterated its interpretation on numerous occasions, including by amending Manual 21-1 in 2002 to expressly incorporate the "foot-on-land" interpretation of the Agent Orange regulations and then formally rescinding the Manual provision in 2008. See 73 Fed.Reg. 20,363 (Apr. 15, 2008). Thus, any lack of clarity or inconsistency in the DVA's interpretation of the Agent Orange regulations has long since been resolved, and the "foot-on-land" policy is now firmly in place.
The DVA made its interpretation clear first in DVA General Counsel Opinion 27-97, the 1997 General Counsel opinion that ruled that sailors on deepwater vessels who did not set foot on land in Vietnam were not "in the Republic of Vietnam" within the meaning of 38 U.S.C. § 101(29)(A). In the course of analyzing section 101(29)(A), the opinion noted that the regulatory definition in 38 C.F.R. § 3.307(a)(6)(iii) "requires that an individual actually have been present within the boundaries of the Republic to be considered to have served there." The opinion concluded that the definition of "service in the Republic of Vietnam" in the regulation was consistent with the definition of the same phrase in section 101(29)(A), which the General Counsel interpreted to require physical presence on the landmass of Vietnam.
During the same year, the DVA set forth its interpretation of the regulatory language again in its response to comments on the spina bifida regulation. See 62 Fed.Reg. 51,274 (Sept. 30, 1997). The DVA explained that "[b]ecause herbicides were not applied in waters off the shore of Vietnam, limiting the scope of the term service in the Republic of Vietnam to persons whose service involved duty or visitation in the Republic of Vietnam limits the focus of the presumption of exposure to persons who may have been in areas where herbicides could have been encountered." More significantly for purposes of this case, in the very regulation that made type 2 diabetes the subject of presumed service connection (and thus provided the basis for Mr. Haas's claim), the DVA noted that service offshore does not constitute "service in the Republic of Vietnam." 66 Fed.Reg. 23,166, 23,166 (May 8, 2001).
To be sure, during the 1990s the DVA was not entirely consistent in its adjudications of claims arising under the Agent Orange Act. Mr. Haas cites four Board of Veterans' Appeals decisions that he contends support his position that a servicemember is entitled to presumptions of exposure to herbicides and service connection based on service offshore of Vietnam. The two earliest Board decisions support his argument, but the other two are at best unclear as to their interpretation of section 3.307(a)(6)(iii). For its part, the government cites a number of other decisions in which the Board applied the regulation as urged by the government, i.e., requiring proof of some duty or visitation onshore in Vietnam. The dates of the decisions cited by the government range from 1998 to 2005; both of the Board decisions that support Mr. Haas's position are from 1997.
*1190 While it is true that "[a]s a general matter ... the case for judicial deference is less compelling with respect to agency positions that are inconsistent with previously held views," Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 698, 111 S. Ct. 2524, 115 L. Ed. 2d 604 (1991) (citing Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212-13, 109 S. Ct. 468, 102 L. Ed. 2d 493 (1988)), the DVA never formally adopted the position urged by Mr. Haas either in General Counsel opinions or in the rulemaking process. And even though the agency's current interpretation of its regulations differs from the position it took in some previous adjudications and seemed to take in its Adjudication Manual, that inconsistency does not mean that its current interpretation does not deserve deference. The Supreme Court made that point clear in its recent decision in Long Island Care at Home, 127 S.Ct. at 2349:
[W]e concede that the Department may have interpreted these regulations differently at different times in their history.... But as long as interpretive changes create no unfair surprise and the Department's recourse to notice-and-comment rulemaking in an attempt to codify its new interpretation ... makes any such surprise unlikely here the change in interpretation alone presents no separate ground for disregarding the Department's present interpretation.
See also Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 742, 116 S. Ct. 1730, 135 L. Ed. 2d 25 (1996) (change under the Chevron doctrine is "not invalidating, since the whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency").
In this instance, the agency's position has been consistent for more than a decade, and there is "no reason to suspect that the interpretation does not reflect the agency's fair and considered judgment on the matter in question." Auer, 519 U.S. at 462, 117 S. Ct. 905. Moreover, because the agency adopted its current interpretation long before Mr. Haas filed his claim, and long before the statute and regulations were amended to include type 2 diabetes among the diseases entitled to special consideration, there is no issue of "unfair surprise" here. Accordingly, we conclude that the DVA's interpretation of section 3.307(a)(6)(iii) merits deference unless that interpretation is plainly erroneous or inconsistent with the language of the regulation.
2. The Veterans Court concluded that the DVA's interpretation of section 3.307(a)(6)(iii) is "plainly erroneous" in part because it is based on what the court regarded as flawed legal analysis in DVA General Counsel Opinion 27-97. As noted, that General Counsel opinion construes 38 U.S.C. § 101(29), a related statute that defines the term "Vietnam era" for purposes of title 38 and in the course of the discussion sets forth the DVA's interpretation of section 3.307(a)(6)(iii). We find nothing in the opinion's analysis that renders the DVA's interpretation plainly erroneous.
The General Counsel opinion examines the question whether veterans who served on deepwater Navy vessels in the vicinity of Vietnam between 1961 and 1975 are considered to have served "during the Vietnam era," as that phrase is used in 38 U.S.C. § 101(29). That question arose because the Veterans' Benefits Improvements Act of 1996 enlarged the statutory period of the "Vietnam era" to the period beginning on February 28, 1961, to May 7, 1975, "in the case of a veteran who served in the Republic of Vietnam during that period." Pub.L. No. 104-275, § 505, 110 Stat. 3322, 3342 (1996). The General Counsel opinion addresses whether service *1191 on an aircraft carrier would constitute service in the Vietnam era for purposes of section 101(29) during the period between February 28, 1961, and August 5, 1964, the period for which service "in the Republic of Vietnam" was required. DVA Op. Gen. Counsel Prec. 27-97 (1997). Focusing on legislative history that emphasized Congress's concern with ground troops who had been present on the landmass of Vietnam before August 1964, the General Counsel determined that service offshore was not included within the meaning of service "in the Republic of Vietnam."
Although the General Counsel opinion does not directly support the DVA's interpretation of section 3.307(a)(6)(iii), it makes clear that the agency viewed the regulatory definition of "service in the Republic of Vietnam" in section 3.307(a)(6)(iii) as closely parallel to the definition of that term in 38 U.S.C. § 101(29)(A). Having interpreted section 101(29)(A) as requiring actual service "within the borders of the Republic of Vietnam" during the pertinent period, i.e., on the landmass of Vietnam, the opinion noted that section 3.307(a)(6)(iii) also requires that individuals "not actually stationed within the borders of the Republic of Vietnam" have been "present within the boundaries of the Republic to be considered to have served there."
We do not agree with the Veterans Court that the General Counsel opinion was legally flawed. While it is true that the amendment to section 101(29)(A) was meant to encompass veterans who may have been at risk for exposure to herbicides prior to 1964, as the Veterans Court stated, the General Counsel opinion merely pointed out that in addressing soldiers who may have been exposed to herbicides during that time period, Congress's express focus was on ground troops. The opinion correctly noted that there was no indication in the legislative history that Congress intended for the definition of section 101(29)(A) to include service on a deep-water vessel off the shores of Vietnam within the scope of the phrase "served in the Republic of Vietnam."
What is particularly important about the General Counsel opinion is that it made clear at least as early as 1997 that the agency interpreted section 3.307(a)(6)(iii) to require presence on the landmass of Vietnam. We see nothing in the General Counsel opinion that renders that interpretation of section 3.307(a)(6)(iii) plainly erroneous.
3. The Veterans Court then found the DVA's interpretation of "service in the Republic of Vietnam" in 38 C.F.R. § 3.307(a)(6)(iii) to be unreasonable because it was not the product of "valid or thorough reasoning." 20 Vet.App. at 273.
First, the court criticized the DVA's interpretation of the phrase "service in the Republic of Vietnam" in section 3.307(a)(6)(iii) because it differs from the DVA's interpretation of the phrase "service in Vietnam" in the non-Hodgkin's lymphoma regulation, 38 C.F.R. § 3.313. 20 Vet.App. at 274. The court's criticism of that inconsistency, however, fails to account for the differences in language, scientific basis, and legal authorization between the two regulations. Section 3.307 (formerly section 3.311 a) was the regulatory predecessor of the Agent Orange Act; it was based on the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, and it included diseases that had been found to be linked to herbicide exposure. Section 3.313, however, was based on the agency's more general authority to adopt regulations "with respect to the nature and extent of proofs and evidence ... in order to establish the right to benefits." 38 U.S.C. § 210(c) (1982). It was not based on herbicide exposure, but *1192 on a CDC study of the occurrence of non-Hodgkin's lymphoma in different groups of veterans, which was specifically found not to be related to herbicide exposure. See 55 Fed.Reg. 25,339 (June 21, 1990) (proposing section 3.313); 1990 CDC Study at 81, 125. Because the CDC study included veterans who served exclusively aboard ships that traveled off the coast of Vietnam among the tested group of Vietnam veterans, it made sense for section 3.313 to include those veterans as beneficiaries of the regulation. Under these circumstances, it was not unreasonable for the agency to interpret the two regulations differently.[3]
Second, the Veterans Court also found the DVA's interpretation of section 3.307(a)(6)(iii) unreasonable based on the agency's failure to offer scientific evidence in support of the line it drew at the Vietnamese coast and the seeming arbitrariness of some results produced by that line. 20 Vet.App. at 274-75.
Due in part to problems of testing for herbicide exposure and in part to the difficulties in tracking troop movements, it has proved difficult to determine which groups of veterans were exposed to herbicides and to what extent. Congress and the DVA have therefore resorted to a line-drawing process that concededly does not closely track levels of actual exposure. Thus, Congress has determined that for certain diseases, all veterans who served for any period of time in Vietnam will be presumed to have established service connection, even if there is no showing that they were exposed to herbicides or were in areas of herbicide use. The DVA, required to draw a line where Congress's intention was unclear, has construed the statute not to extend presumed service connection to those who were in the Vietnam theater but who served only offshore or in other locations. The DVA has explained the rationale for its line-drawing, which is that Agent Orange was sprayed only on land, and therefore the best proxy for exposure is whether a veteran was present within the land borders of the Republic of Vietnam. In a statement accompanying its recent proposed amendment to section 3.307(a)(6)(iii), the DVA explained:
As a factual matter, our legislative interpretation accords with what is known about the use of herbicides during Vietnam. Although exposure data is largely absent, review of military records demonstrate[s] that virtually all herbicide spraying in Vietnam, which was for the purpose of eliminating plant cover for the enemy, took place overland.... Regarding inland waterways, Navy riverine patrols reported to have routinely used herbicides for clearance of inland waterways.... Blue water Navy service members and other personnel who operated off shore were away from herbicide spray flight paths, and therefore were not likely to have incurred a risk of exposure to herbicide agents comparable to those who served in foliated areas where herbicides were applied.
73 Fed.Reg. at 20,568. In light of that explanation, which accords with the position taken by the DVA for the past decade, *1193 and in the absence of evidence that the line drawn by the DVA is irrational, we are not prepared to substitute our judgment for that of the agency and impose a different line.
The Veterans Court pointed out that service on land could be fleeting and could occur far from the area where herbicides were used, while service on the water could include extended service in coastal waters close to areas where herbicides were used. Under the DVA's interpretation of its regulation, a servicemember in the first category would be entitled to a presumption of service connection for one of the designated diseases, while a servicemember in the second category would not, even though the second servicemember would seem intuitively more likely to have been exposed to herbicides than the first. 20 Vet.App. at 273.
There are no doubt some instances in which the "foot-on-land" rule will produce anomalous results. That is not surprising. Line-drawing in general often produces instances in which a particular line may be overinclusive in some applications and underinclusive in others. As the Supreme Court has explained, "any line must produce some harsh and apparently arbitrary consequences." Mathews v. Diaz, 426 U.S. 67, 83, 96 S. Ct. 1883, 48 L. Ed. 2d 478 (1976). But just because some instances of overinclusion or underinclusion may arise does not mean that the lines drawn are irrational. See Vance v. Bradley, 440 U.S. 93, 108, 99 S. Ct. 939, 59 L. Ed. 2d 171 (1979) (line-drawing is upheld even if the classification "is to some extent both underinclusive and overinclusive, and hence the line drawn by Congress is imperfect"); Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 314, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976) ("Perfection in making the necessary classifications is neither possible nor necessary.").
The asserted arbitrariness of the line-drawing done by the agency in this case is in part the result of Congress's decision to extend the presumption of service connection to all persons who served for any period and in any area within the Republic of Vietnam. Because that blanket rule provides a presumption of service connection to some persons who were unlikely to be exposed, it makes virtually any line-drawing effort appear unreasonable as applied to those who were outside of Vietnam but near enough to have had some chance of exposure.
In our view, it was not arbitrary for the agency to limit the presumptions of exposure and service connection to servicemembers who had served, for some period at least, on land. Drawing a line between service on land, where herbicides were used, and service at sea, where they were not, is prima facie reasonable. Moreover, the line drawn by the agency does not cut off all rights of sea-going veterans to relief based on claims of herbicide exposure, in that even servicemembers who are not entitled to the presumption of exposure are nonetheless entitled to show that they were actually exposed to herbicides, as Mr. Haas has endeavored to do in this case. See 38 C.F.R. § 3.309(e). The DVA's interpretation of section 3.307(a)(6)(iii) as excluding servicemembers who never set foot within the land borders of Vietnam thus was not unreasonable, and it certainly did not rise to the level of being "plainly erroneous or inconsistent with the regulation." Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S. Ct. 1215, 89 L. Ed. 1700 (1945); see Smith v. Nicholson, 451 F.3d 1344, 1349-51 (Fed.Cir.2006).
In an effort to demonstrate that the DVA's interpretation was not only unsupported by science but was contrary to scientific studies, Mr. Haas argues that servicemembers serving offshore could have *1194 been exposed to Agent Orange through several mechanisms, such as "runoff" carrying toxic chemicals into the sea, "spray drift" transporting toxins via the wind, and the shipboard consumption of drinking water produced by evaporative distillation. As support for the last of those contentions, he cites to a study conducted for the Australian Department of Veterans Affairs suggesting that Vietnam veterans of the Royal Australian Navy may have been exposed to herbicide compounds by drinking water distilled on board their vessels. Nat'l Research Ctr. for Envtl. Toxicology, Queensland Health Scientific Servs., Examination of the Potential Exposure of Royal Australian Navy (RAN) Personnel to Polychlorinated Dibenzodioxins and Polychlorinated Dibenzofurans via Drinking Water (Dec. 12, 2002).
The Australian study and the other cited sources were not part of the record below and were not considered either by the Veterans Court or by the DVA in its prior rulemaking proceedings. Judgments as to the validity of such evidence and its application to the particular problem of exposure to herbicides in Vietnam are properly left to Congress and the DVA in the first instance; this court is not the proper forum for an initial analysis of such evidence and its implications for the DVA's policies. We note, however, that in its most recent rulemaking proceeding the DVA made the following observations with respect to the Australian study:
VA scientists and experts have noted many problems with the study that caution against reliance on the study to change our long-held position regarding veterans who served off shore. First, as the authors of the Australian study themselves noted, there was substantial uncertainty in their assumptions regarding the concentration of dioxin that may have been present in estuarine waters during the Vietnam War.... Second, even with the concentrating effect found in the Australian study, the levels of exposure estimated in this study are not at all comparable to the exposures experienced by veterans who served on land where herbicides were applied.... Third, it is not clear that U.S. ships used distilled drinking water drawn from or near estuarine sources or, if they did, whether the distillation process was similar to that used by the Australian Navy.
73 Fed.Reg. 20,566, 20,568 (Apr. 16, 2008). Based on that analysis, the DVA stated that "we do not intend to revise our long-held interpretation of `service in Vietnam.'" Id. As to other cited studies, the DVA stated in connection with the publication of the rescission of the Manual M21-1 provision at issue in this case that none of those studies "bears significantly on the specific question whether herbicides used, and as administered, by the U.S. military during the Vietnam Era could have been blown by the wind into the ocean, or into inland waters that then carried the chemical into the ocean, to reach a boat offshore and result in any significant risk of herbicide exposure." 73 Fed.Reg. 20,363, 20,364 (Apr. 15, 2008).
Without reference to evidence, the Veterans Court stated that "it appears that these veterans serving on vessels in close proximity to land would have the same risk of exposure to the herbicide Agent Orange as veterans serving on adjacent land." 20 Vet.App. at 273. The dissenting judge in this court likewise concludes, also without reference to supporting evidence, that veterans such as Mr. Haas "have asserted a reasonable claim that they may have been exposed to herbicides." But focusing on the facts of Mr. Haas's claim, including his assertion that his ship was within 100 feet of the coast of Vietnam, does little to help answer the question of how the statutory phrase "served in the Republic of Vietnam" *1195 should be interpreted. The Veterans Court, for example, did not suggest what would constitute the proper interpretation of the statute, but merely concluded that the DVA's regulation "must be read to include at least service of the nature described by the appellant, that is, service in the waters near the shore of Vietnam." A standard such as "near the shore" is unmanageably vague, not to mention its lack of mooring in the statutory or regulatory language. By contrast, the DVA's interpretation is a plausible construction of the statutory language and it is based on a simple but undisputed factthat spraying was done on land, not over the water. Applying the substantial deference that is due to an agency's interpretation of its own regulations, we uphold the DVA's interpretation of section 3.307(a)(6)(iii).
E
Finally, the Veterans Court concluded that the pertinent provision of the DVA's Manual M21-1, although styled as an interpretation of the law, was actually a substantive rule that could not be changed without compliance with formal notice-and-comment rulemaking procedures. Accordingly, the Veterans Court concluded that the 2002 change in Manual M21-1, in which the DVA made clear that "service in the Republic of Vietnam" would not apply to servicemembers who had not visited the landmass of Vietnam, was not valid because the change was not effected through notice-and-comment rulemaking. 20 Vet. App. at 277. On appeal, the government contends that the Manual M21-1 provisions are properly viewed as interpretive rules, and thus could be changed by the agency without formal rule-making procedures.[4]
Sections 4 of the Administrative Procedure Act ("APA"), 5 U.S.C. § 553, requires agencies to publish proposed rules in the Federal Register for notice and comment. Although that requirement does not apply by its terms to matters "relating to ... benefits," 5 U.S.C. § 553(a)(2), the "benefits" exception does not apply to rules and regulations promulgated by the DVA, 38 U.S.C. § 501(d). The DVA's rules relating to benefits are therefore subject to the notice and comment requirements of the APA. Importantly, however, those requirements do not apply to "interpretative rules, general statements of policy, or rules of agency organization, procedure or practice." 5 U.S.C. § 553(b)(3)(A). Because interpretive rules are not substantive rules having the force and effect of law, they are not subject to the statutory notice-and-comment requirements. See Shalala v. Guernsey Mem'l Hosp., 514 U.S. 87, 99, 115 S. Ct. 1232, 131 L. Ed. 2d 106 (1995); Chrysler Corp. v. Brown, 441 U.S. 281, 301-02 & n. 31, 99 S. Ct. 1705, 60 L. Ed. 2d 208 (1979).
While substantive rules are those that effect a change in existing law or policy or that affect individual rights and obligations, interpretive rules "clarify or explain existing law or regulation and are exempt from notice and comment under section 553(b)(A)." Paralyzed Veterans of Am. v. West, 138 F.3d 1434, 1436 (Fed. Cir.1998); see also Animal Legal Def. Fund v. Quigg, 932 F.2d 920, 927 (Fed.Cir.1991); Am. Hosp. Ass'n v. Bowen, 834 F.2d 1037, 1045 (D.C.Cir.1987). An interpretive rule "merely `represents *1196 the agency's reading of statutes and rules rather than an attempt to make new law or modify existing law.'" Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 260 F.3d 1365, 1375 (Fed.Cir. 2001), quoting Splane v. West, 216 F.3d 1058, 1063 (Fed.Cir.2000).
We conclude that the pertinent provision of Manual M21-1 is an interpretive statement, not a substantive rule. As the DVA has explained, Manual M21-1 "is an internal manual used to convey guidance to VA adjudicators. It is not intended to establish substantive rules beyond those contained in statute and regulation." 72 Fed.Reg. 66,218, 66,219 (Nov. 27, 2007). The provision at issue in this case did not set forth a firm legal test for "service in the Republic of Vietnam," but simply provided guidance as to how an adjudicator should go about gathering information necessary to determine whether the regulatory test had been satisfied. As such, the Manual provided reasonably easily applied guidance for adjudicators in an effort to obtain consistency of outcome; it did not define the boundaries of the DVA's legal responsibility with precision.
The 1991 version of Manual M21-1 noted that ordinarily the statutory and regulatory test would be satisfied by proof of receipt of the Vietnam Service Medal. The reference to the Vietnam Service Medal did not displace the legal test for service "in the Republic of Vietnam," but merely directed adjudicators to perform a simple initial analysis, which was sufficient to determine compliance with that test in the great majority of cases. For that reason, we conclude that the pre-2002 version of Manual M21-1 was not a substantive rule that could be amended only by notice-and-comment rulemaking.[5] Indeed, to treat receipt of the Vietnam Service Medal as a "test" of eligibility for the statutory presumption would be clearly contrary to the Agent Orange Act, because it is undisputed that some servicemembers who received the Vietnam Service Medal were never either in Vietnam or in its territorial waters; accordingly, those servicemembers could not properly be regarded as having served "in the Republic of Vietnam" under any definition of that phrase.
Importantly, it was through notice-and-comment rulemaking that the DVA set forth its position with regard to offshore service in connection with the very regulation that is at issue in this case. In May 2001, the DVA issued the regulation in which it made type 2 diabetes a disease subject to the regulatory presumption of service connection. In so doing, the agency clearly set forth its view as to the status of servicemembers who had served in the waters off Vietnam and had not set foot on shore. Those servicemembers, the agency explained, were not within the scope of the regulatory presumption. See 66 Fed.Reg. 23,166 (May 8, 2001).
That regulation became effective in July 2001, a month before Mr. Haas filed his claim for service connection for diabetes. The agency had thus formally taken a position by then that excluded Mr. Haas from the scope of the regulation. The fact that the DVA did not also subject the amended version of Adjudication Manual M21-1, which followed the position taken in the 2001 rulemaking proceeding, to notice-and-comment rulemaking did not make the agency's actions with regard to *1197 Mr. Haas's claim unlawful. In sum, the agency's formal position with respect to the requirement of visitation or duty on land was established well before Mr. Haas's application for benefits and was reiterated in the diabetes rulemaking proceeding in May 2001. Contrary to the suggestion of the Veterans Court, it was not necessary for the agency to conduct a parallel rulemaking proceeding before incorporating the same rule into its more informal Adjudication Manual.
Because the DVA properly followed its established interpretation of statutory section 1116 and regulatory section 3.307(a)(6)(iii) when it rejected Mr. Haas's claim, we also disagree with the Veterans Court's ruling that the DVA's decision in Mr. Haas's case represents an impermissible retroactive application of the 2002 amendment to Manual 21-1. The agency's interpretation of the statute and regulation were clear by 2001, before Mr. Haas filed his claim. The fact that the agency waited until early 2002 to amend its internal Adjudication Manual to correspond with that interpretation did not prejudice Mr. Haas and does not confer any rights on him.
IV
For the foregoing reasons, we reverse the Veterans Court's ruling rejecting the DVA's interpretation of section 3.307(a)(6)(iii) of the agency's regulations as requiring the servicemember's presence at some point on the landmass or the inland waters of Vietnam. We remand to the Veterans Court for further proceedings consistent with this opinion. Before the Veterans Court on remand, Mr. Haas is free to pursue his claim that he was actually exposed to herbicides while on board his ship as it traveled near the Vietnamese coast. However, he is not entitled to the benefit of the presumptions set forth in 38 U.S.C. § 1116 and the corresponding DVA regulations, which are limited to those who "served in the Republic of Vietnam."
Each party shall bear its own costs for this appeal.
REVERSED and REMANDED.
FOGEL, District Judge, dissenting.
Although I agree with much of the majority's thorough analysis of the relevant legislative and regulatory history, I respectfully disagree with its ultimate holding. Because I conclude that the VA's refusal to apply the presumption of 38 U.S.C. § 1116(a) to Haas and others similarly situated is inconsistent with the intent of the statute and thus is based upon an unreasonable interpretation of the subject regulation, I would affirm the judgment of the Veterans Court. See Haas v. Nicholson, 20 Vet. App. 257 (2006).
While judicial deference to the experience and expertise of administrative agencies is an important principle of our jurisprudence, the historical context in which both courts and agencies act also is important. The present case is the latest skirmish in a decades-long dispute between Vietnam-era veterans and the VA over the health effects of Agent Orange. In 1984, Congress enacted the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub.L. No. 98-542, 98 Stat. 2725 (1984) ("Dioxin Act"), the purpose of which was "to ensure that Veterans' Administration disability compensation [was] provided to veterans who were exposed during service in the Armed Forces in the Republic of Vietnam to a herbicide containing dioxin...." Id. Following its enactment, a group of Vietnam-era veterans and surviving spouses brought suit against the VA for its alleged failure to comply with the Act's provisions. Nehmer v. U.S. Veterans *1198 Admin., 712 F. Supp. 1404 (N.D.Cal. 1989).
Specifically, the veterans challenged the VA's final rule, 38 U.S.C. § 3.311a(d), which stated that "`sound scientific and medical evidence does not establish a cause and effect relationship between dioxin exposure' and any other disease but chloracne." Nehmer, 712 F.Supp. at 1408. The district court held that the "cause and effect test" employed by VA in 38 C.F.R. § 3.311a(d) to determine the relationship between dioxin exposure and various diseases was inconsistent both with the VA's prior practice and with the purpose of the Act. Nehmer, 712 F.Supp. at 1418. In reaching this conclusion, the court relied on the statement of one of the Act's principal supporters, Senator Alan Simpson, that the "[Dioxin] Act was intended to ensure that veterans `have their exposure claims adjudicated under uniform and consistent regulations that incorporate rational scientific judgments', as opposed to the prior system, in which the claims are `committed to the sound judgment of the VA's adjudication officers' who decide them on `a case-by-case basis.'" Id. at 1422.
The statute at issue in this case, the Agent Orange Act, Pub.L. No. 102-04, 105 Stat. 11 (1991), was adopted subsequent to and informed by the issues raised in Nehmer. The Agent Orange Act required that the National Academy of Sciences conduct a comprehensive review of "all the available and future evidence on the long-term health effects of exposure" to herbicides. Haas, 20 Vet.App. at 268. It codified, in similar form, the 1984 note to 38 U.S.C. § 354, which the Dioxin Act amended, at 38 U.S.C. § 316(a)(3), which provided:
For the purposes of this subsection, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era and has a disease referred to in paragraph (1)(B) of this subsection shall be presumed to have been exposed during such service to an herbicide agent containing dioxin or 2,4-dichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.
See Haas, 20 Vet.App. at 268.
As the majority points out, the legislative history of the Agent Orange Act is silent as to what constitutes "service in the Republic of Vietnam." However, both the legislative history and the language of the statute itself indicate the intent of Congress that a fair and independent system be established to determine the relationship between herbicide exposure and the manifestation of certain diseases. Congress was seeking to make it easier, not more difficult, for Vietnam veterans to assert claims arising from exposure to Agent Orange. In this context, it is reasonable to expect that an administrative interpretation limiting the benefits of the presumption at issue here would be based on at least some scientific evidence.
I agree with the majority that in the present case the VA's interpretation of its own regulation is entitled to controlling weight unless that interpretation is plainly erroneous or inconsistent with the regulation. Majority Opinion, slip op. at ___ However, an interpretation is reasonable only if it "`sensibly conforms to the purpose and wording of the regulations.'" Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 150-51, 111 S. Ct. 1171, 113 L. Ed. 2d 117 (1991) (quoting N. Indiana Pub. Serv. Co. v. Porter County Chapter of Izaak Walton League of Am., Inc., 423 U.S. 12, 15, 96 S. Ct. 172, 46 L. Ed. 2d 156 (1975) (emphasis added)). *1199 I agree with the Veterans Court that in the absence of any scientific evidence in the record that supports a "foot on land" requirement, the VA's position is unreasonable.
Congress created the presumption at issue both because exposure to Agent Orange could not be determined by tracking troop movements and because the VA could not pinpoint which veterans were deployed at or near locations where Agent Orange was sprayed, facts which as a practical matter made it very difficult for veterans to prove their claims. Although the plain purpose of the statute is to ensure that all veterans who risked exposure have their claims adjudicated in accordance with uniform, scientifically-based standards, the "foot on land" requirement arbitrarily excludes from the benefits of the statutory presumption an identifiable group of veterans who the available evidence suggests risked exposure.
For example, the VA's interpretation grants the presumption to a veteran who served on a vessel that traveled on inland waterways but not to a veteran who served on a vessel in the waters immediately off the coast of Vietnam, even at no greater distance from land. A veteran whose only contact with Vietnam was a one-hour stop at an airfield would have the benefit of the presumption, while a veteran who spent months on a coastal patrol boat would not. Citing to the administrative record, the Veterans Court noted that "[u]sing VA's risk-of-exposure test outlined in its June 2001 notice of final rulemaking, given the spraying of Agent Orange along the coastline and the wind borne effects of such spraying, it appears that these veterans serving on vessels in close proximity to land would have the same risk of exposure to the herbicide Agent Orange as veterans serving on adjacent land, or an even greater risk than that borne by those veterans who may have visited and set foot on land of the Republic of Vietnam only briefly." Haas, 20 Vet. App. at 273. The Veterans Court concluded that "[t]he Secretary has provided no rational distinction between these types of service and the Court can divine none." Id. Appropriately, the Veterans Court held that:
Absent any discussion regarding the scientific studies mandated by Congress on this subject or any other evidence that contributed to VA's decision to limit the definition, the Court can only conclude that VA's asserted interpretation of this regulation is not the product of agency expertise.
Id. at 275.
Perhaps anticipating that this Court might equally be concerned with the absence of relevant scientific evidence, the VA submitted to the Court during the pendency of this appeal proposed amendments to the regulation that expressly adopt the "foot on land" test and explain the agency's rationale for the amendments. The VA acknowledges the possibility that some veterans who were deployed immediately offshore may have been exposed to herbicides but at the same time asserts there is no evidence that the risk of such exposure was comparable to that faced by veterans who were deployed on land. The VA reaches this conclusion not on the basis of any affirmative data but by discounting the findings of the Australian study upon which Haas and others similarly situated rely. Like the VA's most recent interpretation of the regulation, the proposed amendments appear to be based on uncertainty rather than the careful scientific assessment required by the statute. Thus, despite the clarifying language, I remain convinced that the VA's interpretation is not entitled to deference.
The majority concludes that the "foot on land" rule is rational because there appears to be no clear scientific evidence defining the extent to which different *1200 groups of veterans were exposed, leaving the task of line-drawing to Congress and the VA. Majority Opinion at 1192. Indeed, an interpretation that excludes veterans whose only contact with the Republic of Vietnam was a high-altitude flyover or service in deep offshore waters would be perfectly sensible, as such individuals would not have had a potential risk of exposure. See DVA Op. Gen. Counsel Prec. 27-97 (1997) (finding that service in a deepwater vessel off the shore of Vietnam did not constitute "service in the Republic of Vietnam" under 38 U.S.C. § 101(29)(A)); DVA Op. Gen. Counsel Prec. 7-93 (1993) (finding that service in high altitude planes flying over Vietnam without any further contact with Vietnam did not constitute "service in the Republic of Vietnam" under 38 C.F.R. § 3.313). However, veterans like Haas who have asserted a reasonable claim that they may have been exposed to herbicides deserve to have such claims "adjudicated under uniform and consistent regulations that incorporate rational scientific judgments." See Nehmer, 712 F.Supp. at 1422.[1] It is the VA's burden, not the veterans', to show that the VA's line-drawing was both informed by scientific evidence and consistent with the remedial purposes of the statute. Because I agree with the Veterans Court that the VA has not met that burden, I respectfully dissent.
NOTES
[*] Honorable Jeremy Fogel, District Judge, United States District Court for the Northern District of California, sitting by designation.
[1] Congress included non-Hodgkin's lymphoma on the list of diseases specifically identified in the Agent Orange Act based on evidence that, contrary to the conclusion of the 1990 CDC study, non-Hodgkin's lymphoma was in fact associated with exposure to Agent Orange. See Report to the Secretary of Veterans Affairs on the Association Between Adverse Health Effects and Exposure to Agent Orange, reprinted in Links Between Agent Orange, Herbicides, and Rare Diseases: Hearing before the Human Resources and Intergovernmental Relations Subcomm. of the Comm. on Gov't Relations, 101st Cong., 2d Sess. 22, 41 (1990).
[2] In its brief, the government mistakenly refers to section 1116(f) as the provision at issue in this case. Because Mr. Haas's disease is one of those listed in section 1116(a)(2), it is section 1116(a)(1), not section 1116(f), that governs his claim. Section 1116(f) was originally enacted as subsection (a)(3) of the first section of the Agent Orange Act, and it applied to diseases referred to in subsection (a)(1)(B). When the Act was amended in 2001, subsection (a)(3) became section 1116(f), and it was modified to apply to diseases other than those referred to in subsections (a)(1) or (a)(2). The legislative history of the 2001 amendment makes it quite plain that the new section 1116(f) was designed to make the Act applicable to new diseases, not to affect the preexisting scope of subsection (a)(1). S.Rep. No. 107-86, at 10-12 (2001). The erroneous reference makes no difference to the analysis in this case, however, as the pertinent phrase "served in the Republic of Vietnam" appears in both sections 1116(a)(1) and 1116(f).
[3] Mr. Haas argues that the non-Hodgkin's lymphoma regulation, section 3.313, not the general dioxin exposure regulation, section 3.311 a, was the true predecessor to section 3.307(a)(6)(iii). That contention is plainly wrong. When proposing section 3.307(a)(6)(iii), the Secretary of Veterans Affairs specifically stated that the definition of "service in the Republic of Vietnam" was taken from section 3.311 a, see 58 Fed.Reg. 50,528, 50,529 (Sept. 28, 1993), and the text of the two regulations is virtually identical (and significantly different from the text of section 3.313).
[4] As we have noted, while not changing its legal position the DVA has recently acted to obviate this issue for the future by publishing a formal notice in the Federal Register rescinding the pertinent provision of Manual M21-1. See 73 Fed.Reg. 20,363 (Apr. 15, 2008).
[5] Mr. Haas argues that Fugere v. Derwinski, 972 F.2d 331 (Fed.Cir. 1992), supports his argument regarding the amendment of Manual M21-1. In that case, however, the only issue before this court was whether a provision of the Manual conflicted with a statute. This court did not address whether the Manual provision in question constituted a substantive rule that could be amended only through notice-and-comment rulemaking.
[1] The majority notes that the Veterans Court did not cite any specific record evidence in support of Haas's position and opines that any interpretation other than the "foot on land" test would be "unmanageably vague." Majority Opinion at 1195. Haas received the Vietnam Service Medal for his service in the Republic of Vietnam. As the Veterans Court pointed out and as the majority acknowledges, id. at 1187-88, the VA itself previously applied the presumption in cases in which a veteran received the Vietnam Service Medal or the veteran's "ship was in the vicinity of Vietnam for some significant period of time." See Haas,, 20 Vet.App. at 271-272 (citing M21-1, part III, paragraph 4.08(k)(1)-(2)). I have no reason to doubt that the VA could develop a manageable and consistent standard that would include veterans such as Haas. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316753/ | 148 S.E.2d 210 (1966)
267 N.C. 317
STATE of North Carolina ex rel. NORTH CAROLINA UTILITIES COMMISSION et al.
v.
The SOUTHERN RAILWAY COMPANY et al.
No. 537.
Supreme Court of North Carolina.
May 25, 1966.
*214 Joyner & Howison, by W. T. Joyner, Jr., Maupin, Taylor & Ellis, by Frank W. Bullock, Jr., Simms & Simms, by R. N. Simms, Jr., Raleigh, for defendant appellants, Henry J. Karison, Washington, D. C., Southern Railway System, Charles B. Evans, Jacksonville, Fla., Atlantic Coast Line Railroad Co., James L. Howe, III, Va., Richmond, Seaboard Air Line Railroad Co., of counsel.
Thomas Wade Bruton, Atty. Gen., George A. Goodwin, Asst. Atty. Gen., for North Carolina Department of Agriculture.
Edward B. Hipp, Raleigh, for North Carolina Utilities Commission.
Cicero P. Yow, City Atty., Wilmington, by Edward B. Hipp, Raleigh, for City of Wilmington.
Bryant, Lipton, Bryant & Battle, by Victor S. Bryant, Durham, for protestant, The American Tobacco Co.
Boyce, Lake & Burns, by F. Kent Burns, Raleigh, for F. S. Royster Guano Co., Smith-Douglass Co., Inc., W. R. Grace & Co., V-C Chemical Co., Carolina Nitrogen Co., and Heide Warehouse Co.
Albert W. Kennon, Durham, for protestant appellee, Wm. Muirhead Construction Co., Inc.
PLESS, Justice.
In determining this appeal the railroads are confronted with the statutes and decisions of the Court, which provide that the burden of proving the justification for increased rates is on them. They are required, too, to show that the proposed rate is just and reasonable. "G.S. § 62-75. BURDEN OF PROOF.In all proceedings instituted by the Commission for the purpose of investigating any rate, service, classification, rule, regulation or practice, the burden of proof shall be upon the public utility whose rate, service, classification, rule, regulation or practice is under investigation to show that the same is just and reasonable. In all other proceedings the burden of proof shall be upon the complainant." They must also overcome the presumption that the order of the Commission is prima facie correct, G.S. § 62-94(e) provides the scope of review on appeal, in part, as follows:
"Upon any appeal, the rates fixed, or any rule, regulation, finding, determination, or order made by the Commission under the provisions of this chapter shall be prima facie just and reasonable * * *"
*215 Stated another way, the shippers and customers of the railroads have no burden of proving anything; the previous rates are presumed to be fair and reasonableso are the orders of the Commission.
This Court is not expected to determine freight rates, that is to the function of the Commission. The right to fix or approve the rates to be charged by public service corporations for the services rendered the public rests in the Legislature. The General Assembly may act directly or delegate its authority to a Legislative Agency or Commission for that purpose. "It is the prerogative of that agency to decide that question. It is an agency composed of men of special knowledge, observation, and experience in their field, and it has at hand a staff trained for this type of work. And the law imposes on it, not us, the duty to fix rates." State ex rel. Utilities Com. v. Southern Bell Telephone & Telegraph Co., 239 N.C. 333, 80 S.E.2d 133.
In 73 C.J.S. Public Utilities § 32, p. 1056 it is said that: A Utilities Commission "is an expert, technical body which devotes its time and talents to the administration of some of our largest and most complex businesses."
"That a specially trained body of experts in charge of public utility matters is necessary and should be expected and permitted to dispose of such questions in the exercise of their best judgment unless their action is arbitrary or unreasonable is the basis of the principle of commission control as expressed in the case of State Public Utilities Commission ex rel. City of Springfield v. Springfield Gas & Electric Co., 291 Ill. 209, 125 N.E. 891, P.U.R.1920C, 640: `The law is settled in this state that the matter of rate regulation is essentially one of legislative control. The fixing of rates is not a judicial function, and the right to review the conclusion of the Legislature or administrative body, acting under authority delegated by the Legislature, is limited to determining whether or not the Legislature or the administrative body acted within the scope of its authority, or the order is without substantial foundation in the evidence, or a constitutional right of the utility has been infringed upon by fixing rates which are confiscatory or insufficient to pay the cost of operating expenses and give the utility a reasonable return on the present value of its property. Chicago, Milwaukee & St. Paul Railway Co. v. State Public Utilities Com., 268 Ill. 49, 108 N.E. 729, [P.U.R.1915D, 133]; State Public Utilities Com. ex rel. Mitchell v. Chicago & West Towns Railway Co., 275 Ill. 555, 114 N.E. 325, Ann.Cas.1917C, 50, [P.U.R. 1917B, 1046]. The Public Utilities Act gives the courts power to determine whether or not evidence has been properly received or rejected, and whether there is sufficient evidence in the record to support the finding of the commission. If the order does not contravene any constitutional limitation and is within the constitutional and statutory authority of the commission and has a substantial basis in the evidence, it cannot be set aside by the courts. The court is without authority to set aside such an order unless it is against the manifest weight of the evidence. * * * It is clear from the salary fixed for the commissioners and the great power vested in the commission by the Public Utilities Act that the Legislature intended to create an office of dignity and great responsibility. It is, therefore, not to be expected that through fear of popular disfavor the commission will coyly toy with the situation. It sits to administer justice to individual and corporation, the weak, the strong, the poor, the wealthy, indifferently, fearing none and fawning on none. The notion that commissions of this kind should be closely restricted by the courts, and that justice in our day can only be had in courts, is not conducive to the best results. There is no reason why the members of the Public Utilities Commission of this state should not develop and establish a system of rules and precedents as wise and beneficial, within their sphere of action, as *216 those established by the early common-law judges. All doubts as to the propriety of means or methods used in the exercise of a power clearly conferred should be resolved in favor of the action of the commissioners in the interest of the administration of the law. There should be ascribed to them the strength due to the judgment of a tribunal appointed by law and informed by experience. * * * The necessity of public regulation of rates arises out of the monopoly of the public service company. The unregulated price of the service ceases, except so far as some substitute for the particular service may be found, to be determined by competition, and the individual consumer is unable to contract on equal terms. Fixing rates by public authority may secure to each individual the advantage of collective bargaining by or in behalf of the whole body of consumers, and result in such rate as might properly be supposed to result from free competition if free competition were possible. A just and reasonable rate, therefore, is necessarily a question of sound business judgment rather than one of legal formula, and must often be tentative, since exact results cannot be foretold.'" Pond, Public Utilities, 3rd ed., § 904, p. 936.
On review, this Court is limited in scope to the questions involved. As stated in 73 C.J.S. Public Utilities § 64 j. (1), p. 1157:
"The powers to be exercised by a court on appeal from an order of a public utility or similar commission are restricted to those conferred by constitution or statute. The reasonableness and lawfulness of an order are subject to review on appeal; and the order may be set aside if it is unlawful or unreasonable or both unlawful and unreasonable.
"* * * (T)he only issue before the reviewing court is whether the commission has acted reasonably and legally or has exceeded or abused its powers, and the review is limited to the questions whether the commission acted within the scope of its authority, whether the order is supported by evidence, and whether any constitutional right of a party is infringed thereby, these questions being included in the issue of the reasonableness and lawfulness of the order."
As stated in Pond, Public Utilities, vol. 2, 4th Ed., Sec. 548, p. 984:
"The court * * * is restricted to the question of determining whether any particular rate already fixed is reasonable or otherwise and can not itself fix such rate because this power inheres entirely in the legislative department of the state."
In re the legislative character of fixing rates, the following from 73 C.J.S. Public Utilities § 41a, p. 1081, is applicable:
"Although, in establishing rates for public utilities, a public utility commission does not exercise the full power of the legislature in that regard, the action of a public utility commission in regulating rates is legislative in character, and is subject to the same tests and commands the same regard as a legislative enactment."
With respect to the presumption of validity of rates established by the Utilities Commission, the general rule is stated in 43 Am.Jur. Sec. 186, p. 695:
"In general, a rate fixed by an authorized rate-making body for a public utility is presumed to be valid and reasonable. Accordingly, the courts will not enjoin or interfere with the collection of rates established under legislative sanction unless they are plainly and palpably unreasonable, confiscatory, or excessive, and clearly proved to be such, or unless there was fraud or arbitrariness in fixing such rates."
In effect, this Court occupies the same relative position to the Utilities Commission that it does to the Workmen's Compensation *217 Commission. That is, if the order of the Commission is supported by any reasonable construction of the evidence it is not to be disturbed because a different interpretation could have been placed upon it. We feel that upon a consideration of the evidence before it, the Commission was well justified in failing to find that the proposed increased rates were fair and reasonable.
It has been accepted by all parties that this is not a general rate case. The parties apparently agree that it is one in which the railroads seek a uniform increase on switching charges. While the increase sought appears to be uniform with all of the railroads at all switching points, there the uniformity ceases. Neither the switching charges nor the costs are uniform throughout the State and, as stated previously, the rates extend from $11.98 to $20.14 while the costs claimed by the railroads fluctuate from $32.95 to $43.24, so that only an average cost or an average rate can be presented. The evidence of the railroads shows that an identical increase at every switching point has to be arbitrary and discriminatory. It would put into effect increases in charges for a number of unrelated services at unrelated localities by unrelated railroads. We cannot accept evidence of costs in a seaport town such as Wilmington with its docks, wharves and drawbridges as valid in a hilly or mountain section, such as Asheville or even Winston-Salem. The six appellees, whose operations are in Wilmington, have no interest or concern with costs or rates in Charlotte or Durham.
The carriers contend that they can fairly use National figures as to operations, wages, fuel, maintenance, repairs, depreciation and other business expenses which are the same everywhere. If that be true, we can see no reason why they can make a profit with the proposed increases at Reidsville but will continue to lose varying and widespread amounts at other terminals. While they seek a flat rate increase for switching services at all cities, Mr. Simpson testified that due to the more expensive equipment in use in Charlotte, the switching is more expensive there than at Wilmington.
The Commission was well justified in failing to accept the contentions of the railroads. At one point in their evidence their witness said, "It would be impossible to develop the intrastate engine hours in any state. I do not know how much is attributable to North Carolina all total, interstate and intrastate. I do not know how much is attributable to switch operation in North Carolina. * * * It is a physical impossible (sic) element to develop the separate costs of North Carolina." However, in their briefs, the railroads say that after the Commission's order, they made a study to determine if it were possible to allocate switching costs to North Carolina by reasonably sound and acceptable methods and had determined that this was possible. In view of this statement, it is apparent that the evidence in the record could not be entirely accurate. Taking this situation into consideration and in view of the disparity in costs, as well as revenue, in the six cities tested, we can see no more reason for a uniform increase throughout the State than for the substantial difference in the present charges. The railroads chose the yards to be tested and presumably picked the six they expected to support most favorably their claims. Even from this "chosen few" one will show a profit. We can only surmise that tests at the forty-five other yards would have yielded less favorable results.
The railroads are at liberty to make further application for increased charges which do not have to be uniform but could very properly be based upon actual costs and charges under the prevailing conditions.
The Court has considered all of the exceptions brought forth by the fourteen railroads appealing the order of the Utilities Commission and the judgment signed by *218 Judge Riddle. We are of the opinion that they should not be sustained.
Affirmed.
MOORE, J., not sitting.
LAKE, J., did not participate in the consideration nor the decision of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316353/ | 253 S.E.2d 662 (1979)
Glenna Jennings McMILLAN
v.
David Allen McMILLAN.
Record No. 771349.
Supreme Court of Virginia.
April 20, 1979.
*663 Carl E. McAfee, Norton (Cline, McAfee, Adkins & Gillenwater, Norton, on brief), for appellant.
Charles B. Flannagan, II, Bristol (Woodward, Miles & Flannagan, P. C., Bristol, on brief), for appellee.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
COMPTON, Justice.
In resolving conflicts of laws, the settled rule in Virginia is that the substantive rights of the parties in a multistate tort action are governed by the law of the place of the wrong. Maryland v. Coard, 175 Va. 571, 580-81, 9 S.E.2d 454, 458 (1940). Today in an intra-family suit, we are invited to reject that lex loci delicti principle and to follow the so-called "modern trend" by applying the law of the domicile of the parties. We decline the invitation and reaffirm "the place of the wrong" rule.
Glenna Jennings McMillan was injured on December 26, 1975, while riding in an automobile which collided with a bridge in Hawkins County, Tennessee. The vehicle was operated by her husband, defendant David Allen McMillan. Subsequently, plaintiff instituted this suit in the court below charging that defendant negligently caused the accident and her injuries. The parties were domiciled in Virginia both at the time of the accident and when this suit was filed.
In Tennessee, no right of action arises and no suit may be maintained for a tort committed during coverture by one spouse against the other. Wooley v. Parker, 222 Tenn. 104, 107, 432 S.W.2d 882, 883 (1968). See Childress v. Childress, 569 S.W.2d 816, 817 (Tenn.1978). In Virginia, this common-law rule of interspousal immunity as it affects actions for personal injuries arising from motor vehicle accidents was abolished in Surratt v. Thompson, 212 Va. 191, 183 S.E.2d 200 (1971), and such actions may now be maintained in this state.
In the present case, the trial court, in an August 1977 order from which plaintiff appeals, sustained the husband's motion to dismiss. The court below, ruling that Tennessee law applied, decided that it was bound to follow the established Virginia rule that the law of the situs of the tort governs the substantive rights of the parties.
The plaintiff contends on appeal that Virginia should abandon the orthodox place-of-the-wrong rule in a case such as this and embrace a "modern" rule, which has been followed in a number of states and in recent years has been adopted by the American Law Institute. See Restatement (Second) of Conflicts of Laws §§ 145 & 169 (1971) [hereinafter cited as Restatement]; Annot., 29 A.L.R. 3d 603, 622-52 (1970); Annot., 96 A.L.R. 2d 973, 987-96 (1964). The advocates of this "modern" approach express dissatisfaction with the mechanical application of the place-of-the-wrong rule and impose a duty on the forum court to make an analytical examination of the facts of each case to determine what law should govern the parties' substantive rights. 29 A.L.R.3d at 622-23. While no definitive statement of this "modern" view can be made because of the many variants resulting from this case-by-case approach, the present Restatement rule is illustrative of the concept. This "center of gravity" or "grouping of contacts" theory provides:
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6 [setting forth certain basic choice-of-law maxims].
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
*664 (a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.
Restatement, supra, § 145.
Urging us to adopt this concept, plaintiff argues that disabilities to sue and immunities from suit stemming from the family relationship are more appropriately determined by reference to the law of the state of the family domicile. She contends that "Virginia is clearly the state with the prevailing interest in this action, and therefore should apply its own law with respect to intra-family immunity." We disagree.
We recognize that there has been an increase in the number of jurisdictions which have adopted the contended-for "most significant relationship" test in personal injury actions. We also note that in the cases of this type involving intra-family disputes, the courts employing such theory usually apply the substantive tort law of the state of the domicile. See Restatement, supra, § 169. But after consideration of that concept as compared to our place-of-the-wrong rule, we have concluded to adhere to this court's former position on the question.
Even though the "center of gravity" formula sets up a more flexible rule than the lex loci delicti concept, the components of the formula can be viewed differently from case to case thereby creating uncertainty and confusion in application of the theory. This inconsistency can be illustrated by comparing the leading torts case using such a theory, Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963), with another New York case, Kell v. Henderson, 47 Misc. 2d 992, 263 N.Y.S.2d 647 (1965), aff'd., 26 App.Div.2d 595, 270 N.Y. S.2d 552 (1966). See R. Leflar, American Conflicts Law § 91, at 183, 184 (3rd ed. 1977).
In Babcock, an automobile guest sued her host in New York for injuries sustained in Ontario caused by the defendant's ordinary negligence. Under New York law, the guest could recover for injuries caused by the host's lack of ordinary care, but the Ontario guest statute barred such a recovery. The court abandoned its adherence to the place-of-the-wrong rule and permitted recovery. It decided that, on the guest-host issue, New York had the "dominant contacts" because the parties were domiciled in New York, were on a trip which began in New York and was intended to end in New York, and were travelling in a vehicle registered and regularly garaged in New York. The court noted that Ontario had no connection with the cause of action except that the accident happened to take place there.
Kell presented the converse of Babcock. There, the question was also whether the New York ordinary negligence rule applied or whether the Ontario guest statute controlled. The guest was injured by the host's ordinary negligence while the parties, both residents of Ontario, were on a trip in New York which was to begin and end in Ontario. The New York court purported to follow Babcock but held that Ontario law would not apply. As Professor Leflar notes, while the case did not reach the New York Court of Appeals and "therefore was not conclusive, it indicates the manipulative possibilities that inhere in the Babcock approach." Leflar, supra, at 184.
Thus, we do not think that the uniformity, predictability, and ease of application of the Virginia rule should be abandoned in exchange for a concept which is so susceptible to inconstancy, particularly when, as here, the issue involves the substantive existence of a cause of action in tort.
Plaintiff also relies on Hodgson v. Doe, 203 Va. 938, 128 S.E.2d 444 (1962). But that case is not pertinent here. No conflict of laws question relating to substantive rights was involved in Hodgson. There, the injured party suing in Virginia on a Tennessee *665 accident caused by an unknown motorist had certain contractual rights stemming from a Virginia automobile liability policy and the Virginia uninsured motorists statute. We held that the obligation assumed by the insurance company was not confined to accidents occurring in Virginia and that, for the purpose of venue, the action against the fictitious person, John Doe, was to be determined under the general venue statutes as if the action was against the insurer itself.
For the reasons assigned, we find no error in the action of the trial court. Consequently, the judgment in favor of the defendant will be
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316360/ | 253 S.E.2d 304 (1979)
40 N.C. App. 456
Barbara L. LINDSEY
v.
THE CLINIC FOR WOMEN, P. A., Dr. A. H. Westfall and Dr. Hugh McAllister, Individually.
No. 7716SC927.
Court of Appeals of North Carolina.
April 3, 1979.
*307 Daughtry, Hinton & Woodard by N. Leo Daughtry and W. Kenneth Hinton, Smithfield, for plaintiff appellee.
Anderson, Broadfoot & Anderson by H. W. Broadfoot, Fayetteville, for defendant appellants.
PARKER, Judge.
Defendants first assign error to the denial of their motion for a directed verdict made when plaintiff rested her case and renewed at the close of all of the evidence. Plaintiff contends that this assignment of error should be disregarded because defendants failed to state the grounds for their motion as required by G.S. 1A-1, Rule 50(a). That rule provides that "[a] motion for a directed verdict shall state the specific grounds therefor." We have held this provision to be mandatory. Wheeler v. Denton, 9 N.C.App. 167, 175 S.E.2d 769 (1970). "However, the courts need not inflexibly enforce the rule when the grounds for the motion are apparent to the court and the parties." Anderson v. Butler, 284 N.C. 723, 729, 202 S.E.2d 585, 588 (1974). In the present case it seems obvious that the motion was made on the grounds that the evidence was insufficient to show actionable negligence on the part of the defendants. This must have been apparent to the court and to the plaintiff. Certainly nothing in the record suggests to the contrary. Therefore, we elect to review the trial court's action in denying defendants' motion. In the trial court's ruling, we find error.
Plaintiff's theory of this case, as expressed in her brief and by her counsel on oral argument, is that, viewing the evidence in the light most favorable to the plaintiff, it was sufficient to warrant a jury in finding the following facts. Defendants, physicians specializing in obstetrics and gynecology, accepted plaintiff as their patient and agreed to care for her through her pregnancy. On the evening of 3 June 1974 her membrane ruptured. On the following day she reported this to defendant McAllister by telephone. On 5 June she was examined by defendant Westfall. At that time she was not in pain and he sent her home. On 6 June she started having labor pains. She also experienced a discharge of meconium, which could not have occurred unless her membrane had first been ruptured. On 7 June she reported this to defendants' nurse and was examined by Dr. McAllister. He sent her home. She continued to have labor pains until 13 June, at which time the child was stillborn. The macerated condition of the child's skin indicated it had been dead twenty-four to forty-eight hours before delivery. *308 The fetus died of severe amnionitis which went undetected by defendants. Amnionitis also prolonged plaintiff's recovery and prolonged her pain and suffering. In the opinion of plaintiff's expert witness, the course of conduct pursued by defendant doctors did not conform with approved medical practices and treatment by physicians specializing in the field of obstetrics and gynecology in Lumberton, N.C.
The difficulty with plaintiff's theory is that, even if it be granted that the evidence would support a finding of the foregoing facts, still there is no evidence that anything which defendants did or failed to do in the course of their care of the plaintiff either caused or could have prevented the amnionitis, which plaintiff contends caused the death of her child and her own prolonged suffering. Her expert witness testified that in his opinion the course of treatment outlined in long hypothetical questions "did not conform with approved medical practices and treatment of a physician specializing in the field of Obstetrics and Gynecology," but he never testified what in his opinion "approved medical practices" would have been in this case. He never testified as to precisely what the defendants did that in his opinion they should not have done or as to what they did not do that in his opinion they should have done. More importantly, he never testified that had what he considered to be "approved medical practices" been followed by the defendants in their treatment of the plaintiff in this case, her child would not have been stillborn and her own recovery would not have been prolonged by amnionitis. In short while the evidence may have been sufficient to support a jury finding that defendants were negligent in failing to furnish plaintiff with the standard of care which it was their duty to provide, there was no evidence to show that any failure on the part of defendants to furnish the requisite degree of care was the proximate cause of any of the plaintiff's injuries. "To establish liability upon the surgeon or physician in malpractice cases, there must be proof of actionable negligence by the defendant, which was the proximate cause of the plaintiff's injury or worsened condition." Starnes v. Taylor, 272 N.C. 386, 391, 158 S.E.2d 339, 343 (1968). The evidence in the present case, even when considered in the light most favorable to the plaintiff and even when the plaintiff is given the benefit of every legitimate inference to be drawn in her favor, simply fails to show that anything defendants did or failed to do caused her injuries. The trial court erred in denying defendants' motion for directed verdict made at the close of all the evidence.
Defendants in this case made a timely motion for judgment notwithstanding the verdict in accordance with G.S. 1A-1, Rule 50(b)(1), which motion the trial court also denied. Since this motion was duly made, this court, having found that the trial judge should have granted the motion for directed verdict made at the close of all the evidence, could direct entry of judgment in accordance with the motion. G.S. 1A-1, Rule 50(b)(2). We are not, however, required to do so. G.S. 1A-1, Rule 50(d) provides:
(d) Motion for judgment notwithstanding the verdictdenial of motion.If the motion for judgment notwithstanding the verdict is denied, the party who prevailed on that motion may, as appellee, assert grounds entitling him to a new trial in the event the appellate division concludes that the trial court erred in denying the motion for judgment notwithstanding the verdict. If the appellate division reverses the judgment, nothing in this rule precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.
Speaking of Federal Rule 50(d), which is in all material respects identical with G.S. 1A-1, Rule 50(d), the United States Supreme Court pointed out that even "[i]f appellee presents no new trial issues in his brief or in a petition for rehearing, the court of appeals may, in any event, order a new trial on its own motion or refer the matter to the district court, based on factors encountered in its own review of the case." Neely v. Eby Construction Co., 386 U.S. 317, 329, 87 S. Ct. 1072, 1080, 18 L. Ed. 2d 75, 84-5 (1967).
*309 Under all of the circumstances of this case, it is our opinion, and we so decide, that instead of directing entry of judgment directing verdict for defendants, the plaintiff appellee should be granted a new trial.
Since we have decided there must be a new trial and since it is probable that opinions of expert witnesses in response to hypothetical questions will again be offered, we deem it appropriate to discuss some of defendants' assignments of error directed to the trial judge's actions in overruling their objections to hypothetical questions which plaintiff's counsel asked of Dr. May, plaintiff's expert witness. Certain of defendants' objections to the form of these questions are well taken. The questions were unduly long and prolix. They contained reference to matters which were irrelevant to the purposes for which the questions were asked. In some instances they failed to include reference to matters which were highly relevant. One illustration will suffice. To show that the stillborn child might have died as a result of amnionitis, plaintiffs counsel asked Dr. May the following question:
Q. Doctor May, I ask you, assuming that if the jury should find from the evidence in this case and by its greater weight thereof that Barbara Lindsey, in her last month of pregnancy, having been checked on May the 29th, 1974, by Doctor Westfall, and having been informed by him at that time that she had opened up slightly and that her child could be born at any time thereafter and that Barbara Lindsey, approximately five days thereafter, on June the 3rd, 1974, experienced a discharge of fluid from her vagina which ran down and soaked both legs of her slacks and that same night approximately one hour thereafter, she experienced another discharge from her vagina which she described as "a gush of fluid containing approximately three to four quarts of fluid" which soaked two bath towels, which she had positioned between her legs, and that Barbara Lindsey, early the following morning on June the 4th 1974, called and spoke with Doctor McAllister and informed him that in her words "her water had broken" and that Doctor McAllister asked her when was her regularly scheduled appointment and informing him that it was the following morning, he asked her to wait and come in at that time at her regularly scheduled appointment on June 5th, 1974, and that Doctor McAllister did not mention to Barbara Lindsey to take her own temperature, nor did Barbara Lindsey take her own temperature; that Barbara Lindsey, on June 5th, 1974, was seen by Doctor Westfall for an examination of from two to four minutes and that neither Doctor Westfall nor his nurses took Mrs. Lindsey's temperature, nor did Doctor Westfall or any of his nurses ask Mrs. Lindsey to check her own temperature, nor did Barbara Lindsey take her own temperature, nor did Doctor Westfall prescribe any medication for Mrs. Lindsey, nor did the records of the clinic introduced into evidence indicate that any test was given by Doctor Westfall, Doctor McAllister or anyone in the clinic to determine if the membranes had ruptured nor do the records indicate that her temperature was taken; that Mrs. Lindsey, having had no problem with swelling and having lost by her doctor's records five pounds since May the 29th, 1974, and that Doctor Westfall sent her home to return on Friday, the 7th of June, 1974;
That on June the 6th, 1974, Barbara Lindsey began having a bloody discharge, red in nature, and on the day of June 6, 1974, Mrs. Lindsey began having sharp pains at regular intervals approximately twenty minutes apart and that on the morning of June 7, 1974, Mrs. Lindsey began having a discharge from her vagina which was green and black in color and which she described as "thick in nature so that it remained above the water level in her commode for her to plainly see" prior to flushing that commode and that Barbara Lindsey went to see Doctor McAllister a few hours later on the morning of June 7, 1974, and described to Doctor McAllister and his nurses both the bloody discharge and the green and black *310 discharge as well as the sharp pains at regular intervals which she was having approximately twenty minutes apart and that neither Doctor McAllister nor any of his nurses took the temperature of Mrs. Lindsey on June 7, 1974, nor did Doctor McAllister nor any of his nurses tell Mrs. Lindsey to check her own temperature, nor did Barbara Lindsey check her own temperature and that Mrs. Lindsey, according to her doctor's records had lost eight and one-half pounds at this time, since May 29, 1974, and that Doctor McAllister examined Mrs. Lindsey for approximately two to four minutes and Doctor McAllister noted on his notes on that day of June 7, 1974, "contractions began yesterday; some bloody show; no dilation," and that Doctor McAllister did not prescribe any medication for Mrs. Lindsey nor did the records of the clinic introduced into evidence indicate that any test was given by Doctor Westfall, Doctor McAllister or anyone in the clinic to determine if the membranes had ruptured, nor do the records indicate that her temperature was taken, and that he stated to Mrs. Lindsey, "I could not feel the baby and it is so high up at this time that if I were to induce labor your baby would die," and that Doctor McAllister told Mrs. Lindsey to come back in one week on the following Friday and that Mrs. Lindsey had not felt her baby move since June 5th, 1974;
That on June 8th, 1974, Mrs. Lindsey continued to have sharp pains although at irregular intervals and that her discharge of black and green substance continued as well as did her discharge of bloody substance and that her pain on June 9th and June 10th continued to be severe and on June 11th, Barbara Lindsey called her Obstetricians and Gynecologist, Doctor McAllister and Doctor Westfall, three separate and distinct times and none of her calls were returned and that she could not contact either Doctor McAllister or Doctor Westfall by phone and she did not receive any calls from Doctor Westfall or Doctor McAllister on or after June 11th, 1974, and that Barbara Lindsey had stayed off her feet unable to perform her normal daily activities and that on June 12th, 1974, early on that afternoon, Mrs. Lindsey of her own free will went to the offices of Doctor McAllister and Doctor Westfall.
Do you have an opinion satisfactory to yourself and to a reasonable medical certainty as to whether or not Angela Lindsey, the deceased fetus in this instance, could or might have died as the result of amnionitis?
Defendants' objection to the question was overruled. To this question, the witness replied that in his opinion "the infant might have died from infection." Defendants' motion to strike was denied.
The question was undoubtedly an effective summation before the jury by plaintiff's counsel of his view of his client's case, but that in itself was not a legitimate purpose to be served in asking a hypothetical question. In addition, it contains reference to so many irrelevant matters that defendant's objection should have been sustained on that ground alone. See Ingram v. McCuiston, 261 N.C. 392, 134 S.E.2d 705 (1964). For example, defendants' failure to return plaintiff's telephone calls, which was also referred to in two other long hypothetical questions, might have been relevant to show a lack of concern for the plaintiff on the part of the defendants, but it could hardly have been relevant to determine whether the deceased fetus "could or might have died of amnionitis." On the other hand the question fails to include reference to many obviously relevant facts shown by uncontradicted evidence in this case. For example, the question does not state as assumed facts that the child was stillborn, that it was delivered by a breech extraction, that the umbilical cord was wrapped tightly around its leg, that amnionitis was observed by the delivering doctor at the time of the delivery, or that plaintiff ever had amnionitis. With all deference to the impressive credentials of plaintiff's expert witness, it is difficult for this court to understand how, solely on the basis of the facts assumed in the above quoted hypothetical question, Dr. *311 May could express the opinion "to a reasonable degree of medical certainty" that "the infant might have died from infection." It seems probable that he based his opinion, at least in part, by assuming the existence of facts not stated in the question.
It was error for the trial court not to sustain defendants' timely objection to the question and error to deny defendants' motion to strike the answer.
For the reasons stated, this case is remanded for a
New Trial.
CLARK and ERWIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316369/ | 149 Ga. App. 54 (1979)
253 S.E.2d 444
PERRYMAN
v.
THE STATE.
57032.
Court of Appeals of Georgia.
Submitted January 3, 1979.
Decided February 13, 1979.
Billy L. Spruell, for appellant.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, R. David Petersen, Assistant District Attorneys, for appellee.
BANKE, Judge.
The defendant appeals his conviction for armed robbery.
The victim was in his nursery greenhouse when an *55 assailant approached him from behind, put a knife to his throat, and took approximately $23 from his pocket. The assailant then fled, removing a ski mask as he did so. The victim recognized the assailant as a former employee at this time and furnished his name and address to the police. A "lookout" was issued for him, and about a week later a patrolman received a radio call that the defendant had been located inside a drugstore. The defendant was apprehended, and during a pat-down search, a knife was discovered in his coat pocket.
This case was tried twice, with the first trial resulting in a mistrial due to the jury's inability to reach a verdict. The second trial resulted in the defendant's conviction. This appeal is from the denial of his motion for new trial. Held:
1. There is evidence to authorize the verdict, and we will not disturb it. See generally Ridley v. State, 236 Ga. 147, 149 (223 SE2d 131) (1976).
2. Enumerations of error 2 and 8 are not supported by either argument or citation of authority and are therefore considered abandoned under Rule 18 (c) (2) of this court. Code Ann. § 24-3618 (c) (2).
3. The defendant enumerates as error the trial court's refusal to grant a hearing on his motion to suppress evidence on the knife. The motion was filed on the day the first trial began but prior to the joining of issue. Thus, it was a timely motion. See Thomas v. State, 118 Ga. App. 359 (2) (163 SE2d 850) (1968); Gray v. State, 145 Ga. App. 293 (1) (243 SE2d 687) (1978). Although the trial judge initially disallowed the motion on the ground that it was not timely filed, he nevertheless held a hearing on it during the trial, outside the presence of the jury. After hearing the testimony of the arresting officer, the court overruled the motion on its merits. Immediately prior to the beginning of the second trial, defense counsel renewed the motion; and, once again, it was denied.
It is the defendant's contention that the trial court denied the motion on the basis of the erroneous conclusion that it had not been timely filed. However, as stated above, the trial court did hear the merits of the motion during the course of the first trial. The transcript of that *56 hearing shows that the arresting officer learned from a police report that the defendant was wanted "in connection with an armed robbery" and that immediately prior to the arrest he received a radio communication that the defendant had been located at a drug store. The officer testified that he responded to the call with the intention of merely detaining the defendant for questioning by detectives since, at the time, he did not know whether the defendant was actually wanted for the robbery or whether he was merely wanted as a witness. In fact, of course, the police had probable cause to arrest the defendant for the robbery on the basis of the victim's report. Upon approaching the defendant, the officer conducted a protective pat-down search, discovered the knife, and arrested him for violating a municipal knife ordinance.
"`[P]robable cause can rest upon the collective knowledge of the police, rather than solely on that of the officer who actually makes the arrest,' when there is `some degree of communication between the two.'" United States v. Ashley, 569 F2d 975, 983 (5th Cir. 1978), citing Moreno-Vallejo v. United States, 414 F2d 901, 904 (5th Cir. 1969), cert. den. 400 U.S. 841 (91 SC 82, 27 LE2d 76) (1970). Accordingly, regardless of how the arresting officer may have understood the basis for his instructions to take the defendant into custody, he had probable cause to make the arrest, and the resulting seizure of the knife was lawful as the fruit of a search incident to a lawful arrest. Thus, the trial court did not err in denying the motion to suppress. See Thomas v. State, 118 Ga. App. 359 (2), supra.
4. The defendant claims error in the admission of evidence of two previous robberies committed by him. Hamilton v. State, 239 Ga. 72, 75 (235 SE2d 515) (1977) delineates the conditions which must be met to permit the admission of uncharged crimes. First, the evidence must show that the defendant was the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and that charged so that proof of the former tends to prove the latter. When these tests have been met, testimony concerning the independent crime is admissible to show identity, motive, plan, scheme, bent of mind, and course of *57 conduct. In the instant case, it is not disputed that the defendant was the perpetrator of the two previous robberies. The crimes were similar in that each was an armed robbery, all were committed within the same neighborhood, and no words were spoken during any of the robberies. While the manner of execution of the robberies was somewhat dissimilar in that the first two were carried out with a rifle and the one on trial was carried out with a knife, we hold that the trial court did not abuse its discretion in determining that there was sufficient similarity to allow the evidence.
5. The court's charge on the consideration to be given the two prior offenses was not erroneous for any reason assigned.
6. The trial court expressed no opinion on the evidence when, prior to defining the term "reasonable doubt" in his charge to the jury, he stated, "Now, I will define the term reasonable doubt, but I don't think it is necessary to do it." He was merely stating the law. See Foster v. State, 240 Ga. 858 (4), 860 (242 SE2d 600) (1978).
Judgment affirmed. Webb and Birdsong, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316368/ | 149 Ga. App. 258 (1979)
253 S.E.2d 878
J. C. PENNEY CASUALTY INSURANCE COMPANY
v.
WILLIAMS et al.
57238.
Court of Appeals of Georgia.
Submitted February 7, 1979.
Decided March 8, 1979.
Dunaway, Haas & Broome, George A. Haas, Norris *263 C. Broome, for appellant.
Long & MacDowell, Nick Long, Fred MacDowell, Carter, Ansley, Smith & McLendon, Ben Kingree, for appellees.
QUILLIAN, Presiding Judge.
This appeal is brought by the J. C. Penney Casualty Insurance Company from the grant of summary judgment to the defendant Preston Williams.
Miss Zenobia Leavell was insured by the J. C. Penney Casualty Insurance Company (hereinafter called "Insurance Company"). She and a friend attended a reunion of a college fraternity at the Atlanta Hilton on the night of August 6-7, 1977. Plaintiff Leavell departed the Hilton during the early morning hours of Sunday, August 7, and was enroute to the Marriott for breakfast when she was struck on the left side by a car exiting the Marriott parking area. That area was "[v]ery well lit." The cars were touching and Miss Leavell had a close, clear view of the other driver. The other driver did not leave the car. Miss Leavell got out of her car and was of the opinion that the driver of the other car was a male "dressed as a female." "He was brown-skinned, had on a reddish-brown wig, very kind of keen features, makeup, lipstick, the powder and all, bangs, long hair." The other car backed up and "sped" away. Miss Leavell obtained the license number of the other car, "LDS 435," a black, new 1977 automobile. The defendant Preston Williams had leased a black, 1977 Ford, with license number "LDS 435" from a car leasing agency. When the police served the summons on the defendant it was determined that his car had been damaged on the "right-front bumper."
Mr. Williams testified that he was "a female impersonator entertainer by profession." He stated that he had damaged the front bumper when he struck an island at a service station when he was attempting to drive up close enough to get gasoline. He said that he was performing on the night of Saturday, August 6, and early morning hours of Sunday, August 7, 1977, in Columbia, South Carolina. The club stayed open until around 2:30 a. m. It took about 15 minutes to gather up his equipment, and approximately 3 hours to drive to Atlanta, arriving around 5:30 a. m. He and Michael Bookman, Cheryl Jones, and Jane Gann, were in his 77 Ford, "license LDS 435," *259 that he used to make the trip.
Earlier he had been asked: "Then you were not driving any automobile involved in this collision? A. No, I wasn't Q. There on the Marriott premises, on the street around the Marriott there? A. Right. Q. Fairlie Street I believe. A. No, I wasn't Q. Who had access to your automobile? A. Michael Bookman and another girl by the name of Cheryl Jones. She had my car." Later in the deposition Williams was asked: "... assume for the moment possibly you left Columbia, South Carolina in time to have been in Atlanta around 3:00 o'clock on Sunday morning ... Q. Did you go by the Marriott or stop there for any reason yourself? A. No, not when I dropped Jane Gann off I had to go by there. Q. Had to go by the Marriott? A. But I didn't go by the Marriott because I took after I dropped her off, I came in on I came in on 20... no, I didn't even go close to the Marriott." (Emphasis supplied.)
Plaintiff Leavell testified in her deposition that at the traffic court she could not identify the defendant Williams. She explained: "He was dressed as a female impersonator [at the time of the accident] and at this particular point in time [in the traffic court] since he did not have on his getup, no."
The Insurance Company was served with a duplicate original summons and answered as an uninsured motorist insurance carrier under Code Ann. § 56-407.1 (Ga. L. 1963, p. 588; as amended through 1976, pp. 1195, 1196). Defendant Williams moved for summary judgment on the basis that "he was not operating said motor vehicle at the time of the accident set forth in the complaint." Plaintiff Leavell's response stated: "plaintiff has been unable to establish and/or prove that allegations of her petition alleging that the defendant, Preston Williams, was operating said vehicle." The Insurance Company's response alleged that "there is ample evidence for the jury to find that the complaint correctly names Preston Williams as the tort feasor who caused and is responsible for plaintiff's injuries and damages." Defendant's motion was granted. The Insurance Company brings this appeal. Held:
1. The appellee, Preston Williams, contends that the *260 Insurance Company has no standing to appeal the granting of his motion for summary judgment. We do not agree. He argues that "[o]ne of several defendants in an action, not a joint cause of action, cannot complain of the direction of a verdict for the other defendants. Wilhite v. Mays, 140 Ga. App. 816 (232 SE2d 141)." Appellee Williams also cites Avis Rent A Car System v. Rice, 132 Ga. App. 857 (209 SE2d 270), and Hall v. First Nat. Bank of Atlanta, 145 Ga. App. 267 (243 SE2d 569), as supporting his position that "[w]e cannot perceive that appellant (was) adversely affected."
It is unusual where a defendant brings a motion for summary judgment against the plaintiff and the plaintiff concurs. Under the circumstances of this case, that procedure could leave the uninsured motorist carrier liable for the plaintiff's damages. This court held in Doe v. Moss, 120 Ga. App. 762, 765 (172 SE2d 321) that because "the insurer may be adversely affected by the judgment" it was a "party at interest" and it was provided the remedies contained in Code Ann. § 56-407.1. See also Railey v. State Farm &c. Ins. Co., 129 Ga. App. 875 (3) (201 SE2d 628). Further, "[a] company carrying this coverage is now permitted to `file pleadings and take any other action allowable by law' whether the operator or owner of the vehicle causing injury be known. or unknown." Doe v. Moss, 120 Ga. App. 762, 765, supra. We construe the provisions of Code Ann. § 567-407.1, as making the uninsured motorist insurance carrier a party at interest. It may take any action permitted by our Code that is allowed to other parties in interest including the right of appeal from an adverse judgment. Home Indem. Co. v. Thomas, 122 Ga. App. 641 (178 SE2d 297); Londeau v. Davis, 136 Ga. App. 25 (220 SE2d 43). See also United States &c. Co. v. Bishop, 121 Ga. App. 75, 77 (172 SE2d 855).
One of the options granted to the uninsured motorist insurer by Code Ann. § 56-407.1 is that it may elect to "file pleadings, and take other action allowable by law in the name of either the known owner or operator or both or itself." (Emphasis supplied.) Thus, the insurer may plead or assert any available defense in the name of the owner, operator, or itself (Doe v. Moss, 120 Ga. App. 762, 763, *261 supra; Railey v. State Farm &c. Ins. Co., 129 Ga. App. 875 (3), supra) and will not be bound by the actions of the other defendant even if the other defendant defaults for a default can not defeat "the insurer's statutory right to defend the action in its name." Unigard Ins. Co. v. Kemp, 141 Ga. App. 698 (234 SE2d 539).
Thus, in the instant case, even though the plaintiff acquiesced in the defendant's motion for summary judgment, and "a person may waive or renounce what the law has established in his favor, when he does not thereby injure others or affect the public interest" (Code Ann. § 102-106 (Code § 102-106)), such acquiescence in the motion for summary judgment did injure the defendant insurer and plaintiff's nonfeasance will not be permitted to prevail just as a defendant's voluntary default will not be permitted to prejudice the defendant insurer. See Glover v. Davenport, 133 Ga. App. 146, 147 (210 SE2d 370).
2. Accordingly, we will reach the merits of defendant's motion for summary judgment. Even though a plaintiff has the burden to prove his cause of action by a preponderance of the evidence, if the defendant moves for summary judgment he has the burden of clearly establishing the lack of any triable issue of fact and must take the initiative of introducing evidence so showing. Ellington v. Tolar Const. Co., 237 Ga. 235, 236 (227 SE2d 336). In order for the defendant to prevail, he must "through uncontroverted evidence," effectively pierce any state of facts contained in the plaintiff's complaint, that may be proven in connection therewith, so as to preclude as a matter of law the plaintiff's right to prevail. Ringer v. Lockhart, 240 Ga. 82, 83 (239 SE2d 349).
One further rule must be considered. All ambiguities and conclusions must be construed most favorably toward the respondent and against the movant. Equity Nat. Life Ins. Co. v. Shelnutt, 128 Ga. App. 849, 852 (198 SE2d 350). Thus, where from inherent weakness in testimony or from apparent inconsistencies, questions of credibility arise, summary judgment should be denied and the matter submitted to the jury for resolution of the credibility issue. Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639 (3) (171 SE2d 782).
*262 Defendant's testimony that he was in Columbia, South Carolina, at the time of the accident is not conclusive. It is opposed by the direct and circumstantial evidence of the plaintiff. Of the three people who were supposed to have been with defendant at the time of this incident, two have left the area and he does not know how they can be located. The defendant did not produce the third person and refused to give out her telephone number because it was unlisted, but did agree to provide plaintiff later with her address. The defendant's first testimony that on the morning of this incident that he "had to go by there," was immediately changed to: "I didn't even go close to the Marriott." This is equivocal testimony. If there is a contradiction in the testimony of a party, it must be construed in favor of the opposing party, which may "create a conflict in the evidence as well as a question of credibility, which is solely for the jury." Giant Peanut Co. v. Carolina Chemicals, 129 Ga. App. 718, 720 (200 SE2d 918).
Plaintiff's evidence of being struck by a black 1977 auto, bearing license LDS 435, driven by a man dressed as a woman, presents both direct and circumstantial evidence which is contrary to a professional female impersonator's testimony that his black 1977 Ford, license LDS 435, was not involved, so that the jury should be permitted to decide the contrary inferences and credibility of the witnesses. The Supreme Court, in McCurry v. Bailey, 224 Ga. 318 (1) (162 SE2d 9), held that circumstantial evidence of identity of a driver, was sufficient to make an issue of fact to deny a motion for summary judgment even when opposed by the direct testimony of the defendant as to the identity of the driver. We find the trial court erred in granting summary judgment to the defendant Williams.
Judgment reversed. Smith and Birdsong, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316362/ | 996 P.2d 113 (1999)
196 Ariz. 312
The STATE of Arizona, Appellee,
v.
Edward Wayne THOMAS, Appellant.
No. 2 CA-CR 98-0221.
Court of Appeals of Arizona, Division 2, Department B.
July 29, 1999.
Review Denied February 8, 2000.
Reconsideration Denied April 4, 2000.
Janet Napolitano, Arizona Attorney General By Paul J. McMurdie and Diane M. Acosta, Tucson, Attorneys for Appellee
Isabel G. Garcia, Pima County Legal Defender By Joy Athena, Tucson, Attorneys for Appellant
OPINION
ESPINOSA, Chief Judge.
¶ 1 Appellant was convicted of unlawful possession of a narcotic drug and was placed on probation for four years. A petition to revoke probation was filed, and following a hearing, the trial court found petitioner had violated conditions of probation and placed him on intensive probation. A second petition for revocation was filed and, after another *114 hearing, the court again found appellant had violated probation. The court revoked probation and sentenced petitioner to a 2.5-year prison term. Appellant contends that the trial court was precluded from sentencing him to prison by A.R.S. § 13-901.01, enacted as part of the Drug Medicalization, Prevention and Control Act of 1996, or Proposition 200. Additionally, he challenges the sufficiency of the evidence to support the court's finding that he violated the terms of his probation.
Violation of Probation
¶ 2 We address appellant's second argument first. The petition to revoke probation alleged that appellant had violated probation by failing to remain at his residence except as authorized, failing to abide by his weekly schedule, failing to notify the intensive probation team that he was employed and failing to obtain approval for the job first, using cocaine, failing to report to and obey the probation officer, and twice failing to attend or participate in substance abuse and cognitive skill programs. That a probationer violated conditions of probation must be established by a preponderance of the evidence. Ariz. R.Crim. P. 27.7(b)(3), 17 A.R.S.
¶ 3 We will uphold a trial court's finding that a probationer has violated probation unless the finding is arbitrary or unsupported by any theory of evidence. State v. Moore, 125 Ariz. 305, 609 P.2d 575 (1980). The evidence is not insufficient simply because the testimony is conflicting. State v. Ballinger, 110 Ariz. 422, 520 P.2d 294 (1974). It is for the trial court to resolve such conflicts and to assess the credibility of witnesses in doing so. State v. Hunter, 112 Ariz. 128, 539 P.2d 885 (1975). We address each of appellant's alleged violations.
a. Failure to remain at his residence on four occasions. The probation officer testified that either he or the intensive probation services officer went to appellant's home on four different dates and tried to find appellant, but were unable to do so. The court was free to disbelieve appellant that he was home sleeping and could infer that he was not there.
b. Failure to abide by the weekly schedule. The probation officer testified that appellant did not report to the probation officer as required and did not complete certain required forms. Again, the trial court was free to reject appellant's explanations.
c. Failure to notify the probation team and obtain approval for employment. Appellant admitted he did not contact the probation officer until after he had obtained employment.
d. Use of cocaine. Appellant tested positive for cocaine. The probation officer testified that, when he had asked appellant to submit to the test, appellant told him he had used cocaine two days earlier. The court was free to reject appellant's protestations to the contrary and to reject his claim that he was taking prescription medications only. In addition, there was sufficient evidence that the urinalysis report was reliable, see generally State v. Tulipane, 122 Ariz. 557, 596 P.2d 695 (1979), and that the laboratory technician's testimony about the test results was credible.
e. Failure to obey probation officer's orders and to report to him. The probation officer testified that, during a specific period, appellant was required to propose written weekly schedules to the probation officer for approval; however, appellant only completed one. The officer also stated that his partner told appellant to report to the office on a specific date, that although he saw appellant in the parking lot when he was there for another appointment, appellant did not wait for him or go back to his office. The probation officer explained that their visual contact was not considered a meeting and that appellant had never called or filled out the contact sheet as required. There was more than sufficient evidence to prove this allegation.
f. Failure to attend or participate in programs. The probation officer testified that appellant was scheduled for substance abuse treatment on January 28 and a cognitive skills program on February 3. The probation officer spoke to one of the counselors and was told that appellant had not appeared; in fact, appellant was arrested on February 3, about thirty-five minutes after his scheduled session. The trial court was free to disregard *115 appellant's claim that the February session was scheduled for the next day. And, as the state points out, appellant did not explain his failure to attend the January substance abuse treatment session. The court correctly found this violation was established.
Sentence of Imprisonment
¶ 4 Having determined that there was ample evidence to support the trial court's finding that appellant violated the terms of probation as alleged in the petition, we now turn to the question whether the trial court erred when it sentenced him to a term of imprisonment. We conclude that it did.
¶ 5 As previously noted, § 13-901.01 was enacted as part of the Drug Medicalization, Prevention and Control Act of 1996, or Proposition 200, approved by voters during the general election of that year. The governor proclaimed the initiative law, and the Act became effective on December 6, 1996. 1997 Ariz. Sess. Laws, pp. 2883-84. The Act significantly changed this state's treatment of defendants convicted of nonviolent, first-time drug offenses. Included among the changes was § 13-901.01, which requires courts to suspend sentencing for such defendants, place them on probation, and order them to participate in an appropriate drug treatment or education program as a condition of probation.
¶ 6 The question raised herewhat may a trial court do when such a defendant has violated the terms and conditions of probationis answered by § 13-901.01(E). It provides that, if the court determines that the defendant has violated probation, the defendant
shall have new conditions of probation established by the court. The court shall select the additional conditions it deems necessary, including intensified drug treatment, community service, intensive probation, home arrest, or any other sanctions short of incarceration.
The state contends that the statute merely gives the defendant a second chance, after which probation may be revoked and the defendant may be incarcerated. We disagree.
¶ 7 It is our duty to ascertain the electorate's intent underlying the initiative in interpreting the statute. See Soto v. Superior Court, 190 Ariz. 450, 949 P.2d 539 (App. 1997). "[I]f a statute's language is clear and unambiguous, we must give effect to that language and need not employ other rules of statutory construction." State v. Riggs, 189 Ariz. 327, 333, 942 P.2d 1159, 1165 (1997). The language in this statute is clear and unequivocal. It contains no limit on the number of times a court is required to modify the conditions of probation in the event the defendant violates those conditions and expressly precludes the court from incarcerating the defendant. Although Division One of this court has construed the term "incarceration" in § 13-901.01 to prohibit commitment to prison but to allow imposition of a jail term as a condition of probation, the court found that, in all other respects, "Proposition 200 prohibits imposing incarceration... as a sanction for violating other terms of probation." Calik v. Superior Court, 194 Ariz. 188, ¶ 9, 979 P.2d 1 (App.1998); see Mejia v. Irwin, 195 Ariz. 270, 987 P.2d 756 (App.1999) (court could not impose prison term after revoking probation because offense to which defendant pleaded guilty required probation pursuant to Proposition 200).
¶ 8 The state argues, however, that once the trial court placed appellant on intensive probation, A.R.S. §§ 13-913 through 13-917 controlled and that § 13-917(B) required the court to revoke appellant's probation because he committed a new felony by using cocaine, in violation of A.R.S. § 13-3408(A)(1), (B)(1). The state suggests that § 13-901.01 is ambiguous because it conflicts with § 13-917(B). And, the state argues, to construe § 13-901.01(E) as prohibiting a court from incarcerating a defendant who has violated intensive probation by committing a felony essentially repeals § 13-917(B).
¶ 9 Division One rejected a similar argument in Calik. There, the defendant's argument would have required the court to find that Proposition 200 repealed § 13-901, the general probation statute, at least in part. As the court pointed out: "[T]he law does not favor construing one statute as repealing an earlier statute by implication. Whenever *116 possible, we will interpret two apparently conflicting statutes in a way that harmonizes them and gives rational meaning to both." Calik, 194 Ariz. 188, ¶ 11, 979 P.2d 1.[1]See also Baker v. Gardner, 160 Ariz. 98, 101, 770 P.2d 766, 769 (1988) (we are required to "construe seemingly conflicting statutes in harmony when possible").
¶ 10 Sections 13-901.01(E) and 13-917(B) can be harmonized. The latter is a general provision relating to intensive probation. Section 13-901.01(E), however, is a subsequently enacted, more specific provision relating only to persons placed on probation under the very limited circumstances outlined by the statute. See State v. Behl, 160 Ariz. 527, 774 P.2d 831 (App.1989). To the extent there is a conflict between the two statutes, the terms of § 13-901.01(E) apply to persons placed on intensive probation pursuant to the Act.
¶ 11 To the extent any conflict between the two statutes may render § 13-901.01 ambiguous, we must try to give effect to the "legislative intent by reading the statute as a whole ... and by considering factors such as the statute's context, subject matter, historical background, effects and consequences, and spirit and purpose." Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996); see Gray v. Irwin, 195 Ariz. 273, 987 P.2d 759 (App.1999). Although the language unequivocally evinces the electorate's intent, embodied in subsequent legislation, to keep persons eligible for probation or parole under the Act out of prison and to ensure that they receive drug treatment, that intent has otherwise been made undeniably clear. "The aims of Proposition 200, as stated in the initiative itself, include freeing up space `in our prisons to provide room for violent offenders' and expanding `the success of pilot drug intervention programs which divert drug offenders from prison to drug treatment, education, and counseling.'" Calik, 194 Ariz. 188, ¶ 6, 979 P.2d 1, quoting Proposition 200 at §§ 3(E) and (F) (emphasis omitted). And, in the "findings and declarations" section of the proposition, the electorate stated that drug treatment programs "are more effective than locking non-violent offenders up in a costly prison" and that "eliminating prison time" would save tax dollars. Proposition 200 at §§ 2(D) and (F), 1997 Ariz. Sess. Laws, p. 2896.
Disposition
¶ 12 We conclude there was sufficient evidence to support the trial court's finding that appellant violated the conditions of his probation. However, we find that the trial court erred by revoking probation and imposing the prison term it did. We recognize that trial courts' options for noncompliant probationers placed on probation pursuant to the Act are limited; nevertheless, courts may not circumvent the mandate of the Act but only alter or add conditions of probation. We therefore vacate the disposition order and remand this matter for further proceedings consistent with this decision.
CONCURRING: WILLIAM E. DRUKE, Judge, and JOSEPH W. HOWARD, Judge.
NOTES
[1] Division One found in Calik that its interpretation of § 13-901.01 as permitting a defendant to serve time in jail as a condition of probation but prohibiting imprisonment gave effect to that statute and § 13-901 as well. But see Drug Medicalization, Prevention and Control Act of 1996, Analysis by Legislative Council (person sentenced to probation "does not serve any time in jail or prison"); Laos v. Arnold, 141 Ariz. 46, 685 P.2d 111 (1984) (taking note of legislative council's analysis of proposed constitutional amendment). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260805/ | 632 F. Supp. 706 (1986)
Kenneth E. LAMONTAGNE, Plaintiff,
v.
Robert F. CRAIG, Defendant.
No. C-83-2002-JPV.
United States District Court, N.D. California.
April 25, 1986.
Albert M. Kun, San Francisco, Cal., for plaintiff.
John E. Droeger, Hall, Henry, Oliver & McReavy, San Francisco, Cal., for defendant.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FOR LACK OF ADMIRALTY JURISDICTION
VUKASIN, District Judge.
I. INTRODUCTION
This action arises from events transpiring aboard the SS MOBILE, a merchant vessel operating between the Philippine Islands and the Republic of China in the South China Sea. Plaintiff Kenneth Lamontagne was at all relevant times the Chief Mate of the craft, defendant Craig its Chief Engineer. The MOBILE was owned by SeaLand Corporation, a Delaware entity with offices, among other places, in Hong Kong. SeaLand's Far East Regional Manager, one G.H. Whittaker, was stationed at the Hong Kong Office.
As Chief Engineer, Craig was responsible for all fuel oil transfer operations. Craig Decl., Ex. "A" [SeaLand Master's Policy Manual, ¶¶ 2, 6.] Deck officers, such as the Chief Mate, had no engine department authority, hence no responsibility for such operations. Nonetheless, on several occasions prior to November 3, 1982, Lamontagne did in fact order certain fuel oil transfers, once directing that a *707 partially-depleted deck diesel fuel container be put ashore in Kao, on another voyage deciding not to dump the remainder of the deck tank into the Vessel's "permanent" diesel tank. Neither decision was made in consultation with the Chief Engineer: evidently Lamontagne merely decided on his own to initiate these actions.
Viewing this conduct as a usurpation of his duties and responsibilities, Craig sent an inter-office letter to the aforesaid Whittaker, complaining of Lamontagne's behavior and asking that he be privately and discreetly remonstrated as to the distinction between the respective duties of the Chief Engineer and Mate. This letter, written on board the SS MOBILE on November 3, 1982, was received and read by Whittaker in Hong Kong some time later. It is this correspondence which forms the basis of the present defamation action.
Lamontagne claims this letter is libelous. He does not dispute the contents of the communication, rather its tone,[1] and he argues that the acts referred to therein do not, in fact, constitute "usurpation" of the Chief Engineer's duties. As "special damages," plaintiff proffers his belief that, when the Master of the MOBILE was subsequently removed (apparently for dipsomania, see Plaintiff's Statement of Material Facts Not In Dispute, at 1:24-27), Lamontagne was passed over for the job despite his claimed possession of the necessary qualifications.
The Complaint was filed on April 19, 1983, purportedly under the admiralty jurisdiction of this Court. Defendant now having moved for dismissal of the Complaint under the theory that this is not properly a suit in admiralty, the Court hereby grants the motion for the reasons set forth below.[2]
II. DISCUSSION
The jurisdictional basis for the Complaint is 28 U.S.C. § 1333(1), which provides:
The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases other remedies to which they are otherwise entitled.
In the area of maritime torts, this venerable statute has engendered considerable litigation on the question of when an action falls within the ambit of the District Court's admiralty jurisdiction. See generally 2 Benedict, Admiralty, § 2 (7th Ed. Rev'd 1985).
The place where the tort was committed, generally speaking, is determinative of admiralty jurisdiction. Such jurisdiction is ordinarily limited to torts that occur on navigable waters, as distinguished from those occurring on land. See generally 2 Am.Jur.2d, "Admiralty," § 81, at p. 765. This, the so-called "locality test," was for many years the sole basis in determining whether an action could be brought "in admiralty." See Benedict, supra, § 2, at 1-6 and n. 7. "In regard to torts ... the jurisdiction of the admiralty is exclusively dependent upon the locality of the act." Thomas v. Lane, 23 F. Cas. 957 (C.C.D.Me. 1813), cited in Smith v. Pan Air Corp., 684 F.2d 1102, 1105 (5th Cir.1982).
Because admiralty jurisdiction has eluded precise statutory delineation, "and difficulties attend every attempt to define its exact limits," 2 Am.Jur.2d, supra, § 15, at p. 729, the locality test predictably gave rise to myriad problems of its own. See Benedict, supra, § 2. In 1972, the Supreme Court addressed these difficulties, concluding in Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 93 S.Ct. *708 493, 34 L. Ed. 2d 454 (1972), that "the mere fact that the alleged wrong `occurs' or `is located' on or over navigable waters" is not in itself sufficient; to create a maritime tort it is also required that "the wrong bear a significant relationship to traditional maritime activity." Id., 409 U.S. at 268, 93 S. Ct. at 504; cf. Nelson v. United States, 639 F.2d 469, 472 (9th Cir.1980). This has become known as the "locality plus" test.
In the present instance, the second prong of the "locality plus" test whether the wrong bears a significant relationship to traditional maritime activity is clearly met. It is undisputed that the MOBILE was so engaged at the time of the alleged libel. It is the primary point, the "locality" of the tort, which is more significant, and it is upon this analysis that defendant grounds his motion to dismiss.
Craig submits that this case cannot possibly fall within the Court's admiralty jurisdiction because the "tort" did not occur on navigable waters, but was in fact committed, if at all, only upon publication of the November 3, 1982 letter an event which occurred only upon its reception and consideration by G.H. Whittaker, in Hong Kong, on land. In support of this position, defendant cites to the Court a pair of cases, Clinton v. Joshua Hendy Corp., 285 F.2d 199 (9th Cir.1960) and Clinton v. Int'l Org. of Masters, Mates & Pilots, 254 F.2d 370 (9th Cir.1958).
The Clinton dyad is distinguishable from the facts here, but the rationale may to a certain degree be adopted by this Court in deciding the merits of defendant's motion to dismiss. In Joshua Hendy, an allegedly libelous letter about Clinton, a mariner, was written on board a vessel and published thereon to members of Clinton's union; this purportedly resulted in his dismissal from his union. While admittedly close to the situation here, Joshua Hendy is not on all fours, as the publication there took place aboard the ship. The Ninth Circuit nonetheless took the view that the tort, if any, was consummated on shore (with Clinton's dismissal) and held that admiralty jurisdiction did not exist. Id., at 200. Masters, Mates & Pilots is more remote from the facts here. That matter found the litigious Clinton complaining of alleged violations of union by-laws, including failure to provide him a proper allocation of available jobs. The Court found that the complaint involved "a labor contract, entered into upon the land, to be performed upon the land, and breached, if at all, upon the land." Stating that "[any] relationship to vessels and the sea is at best remote and indirect," the Ninth Circuit held that Clinton had failed to establish a basis for federal admiralty jurisdiction. Id., at 372.
There appears to be no authority involving the specific question presented here. An extension of the rule in Joshua Hendy to these facts would not, however, be inapposite. The difference between a libel, published abroad a ship and resulting in on-shore injuries (Joshua Hendy), and a libel, written on board but not published until it reaches its land destination, with injuries of debatable locus (the case here), is merely one of degree. To pursue this reasoning would comport not only with the "locality" requirement of the "locality plus" test, see Parker v. South La. Contr., Inc., 537 F.2d 113, 115 (5th Cir.1976); Roberts v. United States, 498 F.2d 520, 523 (9th Cir.1974); Earles v. Union Barge Line Corp., 486 F.2d 1097, 1100 (3rd Cir. 1973); Chapman v. City of Grosse Pointe Farms, 385 F.2d 962, 964 (6th Cir.1967), but would be consistent with the dictates of logic and common sense as well. As the Court stated in Chapman, supra, "the governing principle ... is that reference should properly be made to the locality where `the substance and consummation' of the occurrence which gave rise to the cause of action took place...." Id., at 964 (emphasis added). In a defamation action, the place of publication the last event necessary to render the tortfeasor liable is, for venue purposes, the place of the wrong. St. Clair v. Righter, 250 F. Supp. 148, 150 (W.D.Va.1966); see also Jaffe v. Dolan, 264 F. Supp. 845, 848 (E.D.N.Y.1967). The Court can discern no reason why a similar rule should not be applicable to jurisdictional questions, venue being but a subset of *709 jurisdiction overall. Since "publication," in libel law, connotes the communication of defamatory material to a third person, Black's Law Dictionary, at 1105 (5th Ed. 1979), it is self-evident that the "substance and consummation" of the tort occurs when and where the third person receives, reads, and comprehends the libelous matter. In this case, therefore, it is clear that the place of publication was not aboard the SS MOBILE, regardless of the fact that the interoffice communication of November 3, 1982, was indicted there, but in Hong Kong, where the document came into G.H. Whittaker's hands. Accordingly, the "tort" alleged here took place, if at all, at SeaLand's Hong Kong offices; it thus follows that this is not properly a case of admiralty jurisdiction. Defendant's motion to dismiss is therefore meritorious.[3]
III. ORDER
The Court finding that publication of defendant Robert Craig's letter of November 3, 1982, occurred in Hong Kong, and that the tort complained of, if any, arose therefore on land, the Court further finds that this is not a case within its admiralty jurisdiction under 28 U.S.C. § 1333(1). Good cause appearing, then
IT IS HEREBY ORDERED that defendant's motion to dismiss the Complaint for lack of admiralty jurisdiction is GRANTED in full.
NOTES
[1] The Court is constrained to note that, having reviewed the subject letter, it appears to be a document of singular inoffensiveness, characterized chiefly by Craig's insistence that the matter be handled with tact and discretion.
[2] Said motion was calendared for hearing on February 27, 1986. Owing to a calendaring confusion, it was the belief of plaintiff's counsel that argument was in fact scheduled for the following day. Defendant having appeared through counsel on February 27, the Court declined to hear oral argument and ruled from the bench that day.
[3] Defendant Craig has moved in the alternative for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. In view of the ruling on the motion to dismiss, this alternate motion will be addressed only briefly.
Defendant raises two key points. First, he states, there is no genuine issue of material fact on the question of whether or not plaintiff did indeed usurp his duties with reference to the fuel oil transfer operations; the truth of the allegations in the November 3, 1982, letter, therefore, constitutes a complete defense. Second, Craig argues that plaintiff has failed to demonstrate any special damages arising from the purported libel, since his letter did not affect the company's failure to promote Lamontagne to the position of Master.
Defendant's first argument is well taken. As noted earlier, see p. 706 supra, the Master's Policy Manual of the SeaLand corporation clearly states that the engineering department, headed by the Chief Engineer, is responsible for fuel transfers. Thus, for example, § 2 states that "[a]n inspection is to be made by the Senior Deck Officer in charge and by the Chief Engineer, together, before commencing [fuel] bunker transfer." Similarly, ¶ 6 dictates that "... the Chief Engineer is in charge and responsible for the physical taking on of bunker fuels and is required to be present during this operation." [Emphasis added ¶ 2; emphasis in original ¶ 6.] Plaintiff's response is an unpersuasive argument that, although responsible for one of the incidents charged in the November 3rd letter, he had consulted with the engineering department's second-in command, one Kuhn, prior to issuing the order. Since this clearly reflects an abridgement, not to say violation, of the plain terms of the Manual, plaintiff's theory appears to be that his acts constituted some kind of "justifiable arrogation" of Craig's duties as Chief Engineer. Little comment is due this pertinacious bit of fiction.
Defendant's second argument also appears compelling. When the bibulous Master of the MOBILE was relieved of his duties in December, 1982, the decision to remove him was made by Robert Fall, SeaLand's Vice President for Vessel Operations. Droeger Decl., Ex. [Garner Dep. at 10:11-15]. Fall has testified that, at the time the former Master was replaced, he had not even seen the Craig letter. Droeger Decl., Ex. [Fall Dep., at 45:21-25 through 46:2]. Indeed, plaintiff himself concedes that the letter had nothing to do with Fall's decision to pass over Lamontagne, see Plaintiff's Statement of Material Facts Not In Dispute, ¶ 8. Plaintiff's subsequent failure to attain the Master's post is less easily accounted for, but appears to have been based on a number of tepid performance evaluations he has received, most of them antedating the events at issue in this lawsuit. Evidently, the general perception of Kenneth E. Lamontagne at SeaLand was that of a capable enough deck officer, but also something of a hotspur, with a disposition to spontaneously volunteer rather brusque pronouncements on any topic he chose, including the conduct of superior officers. This temperment, the Court infers, suggested to SeaLand management that plaintiff was an inappropriate candidate for promotion to a vessel command position.
Thus, although no ruling under F.R.Civ.Proc 56 is therefore required, defendant's alternate motion appears to be meritorious, and could easily stand as a separate ground upon which Craig might prevail. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260814/ | 632 F. Supp. 895 (1986)
UNITED STATES of America, Plaintiff,
v.
Jose OLAVARRIETA, Defendant/Third Party Plaintiff,
v.
The BOARD OF REGENTS OF the DIVISION OF UNIVERSITIES OF the FLORIDA DEPARTMENT OF EDUCATION and/or the University of Florida, Third Party Defendant.
No. 85-0438-Civ-Spellman.
United States District Court, S.D. Florida.
January 14, 1986.
Order of Dismissal January 14, 1986.
Order Granting Motion for Summary Judgment April 9, 1986.
*896 *897 B.B. Allen, Asst. U.S. Atty., Miami, Fla., for plaintiff.
Jose Olavarrieta, pro se.
Arthur Wallberg, Asst. Atty. Gen., Tallahassee, Fla., for third party defendants.
Order of Dismissal as to the Board of Regents January 14, 1986.
Order Granting Plaintiffs Motion for Summary Judgment April 9, 1986.
MEMORANDUM OPINION AND ORDER OF DISMISSAL AS TO THE UNIVERSITY OF FLORIDA
SPELLMAN, District Judge.
THIS CAUSE is before the Court on Third Party Defendant University of Florida's Motion to Dismiss, filed on May 14, 1985. The Court will also address the memoranda submitted by the Plaintiff and Defendant/Third Party Plaintiff. The Court having reviewed the record and for the reasons set forth below, it is hereby
ORDERED AND ADJUDGED that the Motion to Dismiss is GRANTED.
This action was commenced by the United States on February 15, 1985 to recover the unpaid balance and interest on student loans made to Olavarrieta by a local bank under the mechanism set forth in the Federal Insured Student Loan Program, Tit. IV-B of the Higher Education Act of 1965, 20 U.S.C. §§ 1071-1088 (1980). Olavarrieta does not dispute the Government's allegations that he executed three promissory notes to Inter-National Bank of Miami, now known as Royal Trust Bank of Miami, for a total of $4,000.00. These notes were made January 28, 1974, July 29, 1974 and January 10, 1975, in the amounts of $1,100.00, $900.00 and $2,000.00 respectively. Each of the notes bore simple interest at the rate of 7% per annum on the outstanding balance, and each provided for repayment of principal, together with interest thereon, to begin nine months after the date on which the maker ceased to carry at least one-half the normal full-time academic workload at an eligible institution. Olavarrieta ceased to carry at least one-half the full-time workload in June, 1975. The Defendant did make a sole payment of $79.21, although when that payment was made is not clear from the record. Demands for payment were made by the bank, but to no avail. The United States then took over the task of sending demand letters, which also proved fruitless. Finally, Royal Trust Bank sought payment from the Government for the loans now in default, and was paid $4,165.45 on March 3, 1979. The Government, barely less than six years later, sought reimbursement from Olavarrieta by filing this suit.[1]
*898 Olavarrieta has taken the position that he is not obligated to pay back the Government because, he claims: the loans were illegal, the action is time barred by the statute of limitations under Florida law, there was no consideration, and that because the Defendant did not receive a Juris Doctor degree, but only a "Certificate" signifying completion of his studies in the program for which he borrowed the funds, that the funding itself was for an illegal purpose. The Defendant has filed a Third Party Complaint (and Amended Complaint) against the "Board of Regents of the Division of Universities of the Florida Department of Education, a.k.a. the Board of Regents, and/or the University of Florida." The University of Florida has moved to dismiss the Amended Complaint on the grounds that: the University does not have the capacity to sue or be sued, insufficiency of process, lack of jurisdiction by this Court under the Eleventh Amendment, statute of limitations, and failure to state a cause upon which relief can be granted. The Court need not address all of the aforementioned grounds in detail because it is clear each one would be sufficient reason for this case to be dismissed.[2]
Part II of Chapter 240 of the Florida Statutes discusses the State University System. The Board of Regents may sue or be sued. Fla.Stat. § 240.205(4). There is no comparable statute which empowers a University to sue or be sued. Also see Byron v. University of Florida, 403 F. Supp. 49 (N.D.Fla.1975) (an individual University lacks the capacity to be sued and must be dismissed). Thus, the University of Florida is not a proper party in this action.
Although the University does not have the capacity to be sued in its own name, the Court notes that even if it did, service of process has been ineffective. The Defendant/Third party Plaintiff served a copy of the Complaint on the resident agent of the University of Florida Central Florida Gator Club, Inc. This organization is made up of Gators (the name of the football team at the university) fans and is not related to the University in any other respect.
It appears that the statute of limitations would bar Olavarrieta's action against the University of Florida, should he be able to sue it in the first place. In his Complaint, the Defendant alleges that the University breached a contract it had with him, and that the school violated the intent and requirements of the Higher Education Act of 1965. Because the contract is apparently an oral one, it would fall under the four year limitation pursuant to Fla.Stat. § 95.11(3)(k). Although it is not totally clear, the Complaint intimates that these oral promises were made prior to the Defendant's enrollment in the program. Thus, the action accrued in 1975 at the latest, and is clearly time barred. As for the Defendant's allegations that the University "violated Federal Rules and Regulations" (emphasis in the original), the Court simply cannot discern a cause of action. It is possible that the Defendant is alleging that, by virtue of the school's failure to award him a J.D. or academic credits, the University had in effect breached an agreement with the federal government. In fact, Olavarrieta claims that he is a "beneficiary" of the Federal Financial Assistance program. Given tremendously liberal application of the law of contracts, the Defendant is still time barred from bringing this action under Fla.Stat. § 90.11(3)(k).
Finally, the Court notes that even if the allegations in the Third Party Complaint were true, and even if the Defendant were not precluded from bringing suit *899 against the University, the Defendant's claim would fail. The United States' obligations under the Federal Insured Student Loan Program bring it squarely within hornbook definitions of a guarantor. United States v. Bellard, 674 F.2d 330, 333 (5th Cir.1982) (footnote omitted). As guarantor, the United States' obligation arise only upon the principal's failure to perform. United States v. Griffin, 707 F.2d 1477, 1480 n. 3 (D.C.Cir.1983). It is undisputed that Olavarrieta defaulted on the loan, the bank sought payment from the United States, and the government now seeks reimbursement from the Defendant. The University does not have a role to play in this action. One of the few cases in which a defaulting student raises defenses to the demand for reimbursement is anomalous to the case at hand. In Griffin, supra, the student had received the loan directly from a for-profit vocational school, and had raised certain defenses to repayment directly with the school's collection agency. It was later discovered that the school had numerous problems of which the government was aware. The government nonetheless paid the school for the defaulted loan. The Court in Griffin, supra, held that the court below had erred in granting summary judgment in favor of the government since Griffin had raised his defenses against the school prior to payment by the government, thus preserving them. Although the facts in Griffin differ significantly from those before the Court, the case does make one point clear. The defaulting student's defenses are to be made against the government, not the school, regardless of the school's status as lender. Once the defaulted loan is paid, the government, as guarantor, is the party Olavarrieta must deal with, not the University or the bank. The Third Party Plaintiff fails to cite any authority under which he may have a cause of action against the Third Party Defendant, or under which the Third Party Defendant is or may be liable to him for the amount claimed by the government against him.
In considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6) the Complaint is liberally construed and viewed in the light most favorable to the plaintiff. Stephenson v. Gaskins, 539 F.2d 1066 (5th Cir. 1976). Where the plaintiff appears pro se, allegations in the Complaint are held to a less stringent standard than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972), reh'g denied, 405 U.S. 948, 92 S. Ct. 963, 30 L. Ed. 2d 819 (1972). These well settled tenets do not, however, preclude dismissal of a Complaint that cannot withstand any legal scrutiny. This is, in effect, what is before the Court. The Third Party Complaint fails to withstand the motion to dismiss, and therefore must be dismissed.[3]
ORDER OF DISMISSAL AS TO THE BOARD OF REGENTS
THIS CAUSE is before the Court on the Motion to Dismiss filed by the Third Party Defendant, the BOARD OF REGENTS ("Board") and the Defendant/Third Party Plaintiff's, JOSE OLAVARRIETA ("Olavarrieta") response thereto. For judicial economy's sake, the Court hereby incorporates the factual background provided in this order's companion order dismissing the University of Florida from the suit.
Initially, the Board's assertion that the Third Party Complaint must be dismissed because the Eleventh Amendment divests the Court of jurisdiction is without merit. There is no question that under Fla.Stat. § 240.205 (1979), the Board has the "capacity to sue or be sued." Additionally, it appears that the case law cited is somewhat inapplicable in that it is the Board and not an individual university which is invoking the protection of the Eleventh Amendment in the case at bar.
*900 Despite the inapplicability of the Eleventh Amendment as to this Third Party Defendant, the Board is correct that the action is barred by any of the statutes of limitations conceivably pertinent. The Board cites 28 U.S.C. § 2415 (six year limitation on actions brought by the United States); Fla.Stat. § 95.11(2)(b) (five year limitation on a written contract action); and Fla.Stat. § 95.11(3)(k) (four year limitation an action brought on an oral contract). As stated in the companion order, Olavarrieta states that statements were made to him by the Third Party Defendants prior to his enrollment. Thus, the action accrued in 1975 at the latest, and is therefore barred by any of the statutes of limitations listed above. Olavarrieta's response that the Board cannot invoke the time bars applicable "because the Third Party Defendant is in violation of F.S. 95.051(c) by not been [sic] registered as the person to be sued" is inaccurate and meritless. Therefore, Olavarrieta could not recover from the Board even if he had made a claim upon which relief could be granted.
This brings the discussion to the point that Olavarrieta has failed to state a claim upon which relief can be granted regardless of the statutes of limitations. In the Amended Third Party Complaint, he simply fails to produce any factual or legal basis whereby he may be entitled to indemnification or any of the other relief requested. His claims against the Third Party Defendants cannot insulate him from the realities of this case, no matter how strenuously he makes them. Olavarrieta's claim that the Third Party Defendants have acted contemptuously is wholly absurd.[1]
Based on the above analysis of the Board's Motion to Dismiss and the response thereto, the Court can reach only one conclusion. In considering the Amended Third Party Complaint most liberally and in the light most favorable to the Plaintiff as Stephenson v. Gaskins, 539 F.2d 1066 (5th Cir.1976) directs, the Court, nonetheless must dismiss the Amended Third Party Complaint against the Board. It is therefore
ORDERED AND ADJUDGED that the Third Party Defendant's Motion to Dismiss is GRANTED.[2] In granting said motion, the third party action is now dismissed in its entirety.[3]
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE comes before the Court on the government's Motion for Summary Judgment against Jose L. Olavarrieta. The government seeks to prove that Olavarrieta failed to repay student loans for which the government acted as guarantor.
FACTUAL BACKGROUND
Several years ago, Olavarrieta sought funds in the form of student loans in order to enroll in the Cuban American Lawyers' Institute ("CALI") program offered at the University of Florida. The Supreme Court of Florida oversaw the creation of a program of course work administered by the University whereby Cuban refugees who had practiced law in Cuba could expedite their legal training in this country before sitting for the Florida bar examination.[1]
*901 In order to be able to pay the fees and tuition, Olavarrieta applied for a Federally Insured Student Loan on three occasions.[2]
On or about October 18, 1973, Olavarrieta applied for a loan in the amount of $1,100.00 to cover the academic term commencing September, 1973 and continuing through March, 1974. On January 28, 1974, the Defendant executed a promissory note to InterNational Bank of Miami, now known as the Royal Trust Bank of Miami, N.A. ("Royal Trust") for a Federally Insured Student Loan ("FISL") for $1,100.00.
This procedure was repeated on two more occasions. On July 29, 1974, Olavarrieta executed a promissory note to the bank for $900.00. A third note was executed on January 10, 1975 in the amount of $2,000.00. Olavarrieta does not dispute that these notes were made, signed and valid, and that he received and used the funds.
Each of the promissory notes bore simple interest at the rate of 7% per annum on the outstanding balance, and each provided for repayment of principal, together with interest thereon, to begin nine months after the date on which the maker ceased to carry, at an eligible institution, at least one-half the normal full-time academic workload, as determined by that institution.
As of June, 1975, Olavarrieta ceased to carry at least one-half the academic workload, and was therefore obligated to begin making payments on the notes, beginning in March, 1976. At that time, the total unpaid principal amounted to $4,000.00.
At some point prior to the assignment of the notes, the Defendant made a single payment of $79.21.
Once it became clear that Olavarrieta was obligated to begin his repayments, and failed to do so, Royal Trust sent several demand letters to him. Meeting with failure, the bank requested the assistance of the Department of Health, Education and Welfare in obtaining repayment. On June 1, 1977, HEW sent a demand letter to Olavarrieta; the letter was ignored.
In the interim, the statutory functions of the HEW were reassigned to the United States Department of Education. From March 18, 1979 through March 19, 1982, additional demand letters were sent to Olavarrieta from the Department of Education.
The government's attempts to recover payment on the notes also had proven futile. On February 7, 1979, Royal Trust submitted its application for the amounts due in unpaid principal and accrued interest to the Department of Education for payment, pursuant to 20 U.S.C. § 1080. Also on that date, the bank assigned each promissory note to the United States of America.
As of February 7, 1979, the total amount due to the bank was $4,575.36; $3,920.79 in unpaid principal and $654.57 in accrued interest. On March 3, 1979, HEW, through the Department of Education, payed to Royal Trust the full amount claimed by the bank on the notes.
Olavarrieta does not argue with the preceeding narrative on the facts. Instead, he challenges the government's position that it is entitled to summary judgment on the following grounds: that unanswered questions remain; the CALI program was not qualified under the Higher Education Act of 1965, 20 U.S.C. §§ 1071-1088 (1980); that Olavarrieta was deceived by the material contained in the pamphlet entitled "Your Guaranteed Student Loan: Rights and Responsibilities" and a letter dated January 22, 1975 sent to him by the University of Florida; that the Supreme Court of Florida set up the CALI program with the intention of creating a "diminished or handicapped class of attorneys"; and that the government's claim is barred by the statute of limitations in 28 U.S.C. § 2415(a).
DEFENDANT'S CHALLENGES
First, this discussion of the Defendant's defenses must be prefaced with the point *902 that no factual issues remain in this case. Olavarrieta does not challenge the government's motion on a factual dispute, despite his iterated contention that there are "unanswered questions". Whatever questions remain, they are not factual.
Second, the Court finds that the Defendant has offered no proof, nor even a suggestion, that the CALI program cannot be eligible under the Higher Education Act, as amended, for purposes of those enrolled in it receiving student loans. Its purpose was to benefit persons such as Olavarrieta and help them circumvent the very time consuming and arduous training that attorneys in this country must endure. The Defendant admits that he received his certificate from the program upon completion of his work. The program never made any promises that said certificate would entitle him to become a member of the Bar without passing the examination.
Third, the Court cannot glean from a thorough reading of Defendant's exhibits # 2 and # 3 how the material contained in either document could deceive an intelligent adult such as the Defendant. They are both basic documents which provide the reader with a brief outline of the terms of the loan and some technical details for completion of the program. They are, in effect, irrelevant to this action.
Fourth, the Defendant alleges that the Supreme Court of Florida, by providing a class of refugees benefits over and beyond those offered to any other group of exiles, actually intended to create a "diminished or handicapped class of attorneys". The Court will not respond to this allegation.
Fifth and finally, the Defendant states that this action is time barred. The Court finds that since the government paid in full its obligation as guarantor to the bank on March 3, 1979, and this suit was filed on February 15, 1985, the action was timely filed. The provisions of 28 U.S.C. § 2415(a) state in pertinent part:
Subject to the provisions of Section 2416 of this title, and except as otherwise provided by Congress, every action for money damages brought by the United States or an officer or agency thereof, which is founded upon any contract express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action accrues.
Case law is clear that a guarantor's right to reimbursement accrues once it has paid the creditor in full for the principal's debt. United States v. Frisk, 675 F.2d 1079, 1082 (9th Cir.1982); United States v. Tilleraas, 709 F.2d 1088, 1092 (6th Cir.1983). Upon payment to the bank by the government, the Defendant became liable for the sums paid. United States v. Bellard, 674 F.2d 330, 335-56 (5th Cir. 1982); United States v. Tilleraas, 538 F. Supp. 1, 6 (N.D.Ohio 1981), aff'd 709 F.2d 1088 (6th Cir.1983).
Throughout this case, Olavarrieta has alleged that there was no consideration for the loans and that they should be found to be without legal effect. The Court is a mite incredulous at this proposition of the Defendant's. Aside from the fact that the CALI was created for his benefit as an attorney and officer of the Court, surely the Defendant could not think that he would be advanced funds for his educational edification and not have a legal, if not moral, obligation to repay the lender. As stated in United States v. Wilson, 478 F. Supp. 488, 490 (M.D.Pa.1979): "the [student] debtor also benefits from the insurance because the program makes loans which might not otherwise be available or would be available at higher rates of interest." There is no question that the Defendant received significant advantages by being privileged to participate in the FISL and CALI programs.
CONCLUSION
The Court does not recall offhand a case that is more cut and dry. The Defendant took out three student loans under the FISL program and participated in the CALI program at the University of Florida. Olavarrieta received his certificate upon completion of the CALI program. *903 His course work ended, and he became obligated to begin repaying his loans. He refused to do so. The bank sought repayment; the government sought repayment. He has had the benefit of over $4,000.00 and no detriment other than having to defend a lawsuit lawfully waged against him by the United States which now seeks repayment of the monies due.
There is no genuine issue of material fact remaining in this case. The facts were never in dispute, actually. Olavarrieta merely contested the government's legal rights to recover the money. There being no question that the government is in fact entitled to the funds, summary judgment must be entered in its favor. Accordingly, it is hereby
ORDERED AND ADJUDGED that the government's Motion for Summary Judgment is GRANTED and summary judgment is entered in its favor and against the Defendant, JOSE L. OLAVARRIETA. The government shall submit to the Court a Final Judgment within ten days from the date of this Order.
NOTES
[1] The Court had directed the parties to the original action to file memoranda of law discussing, among other topics, any relevant statutes of limitations. The Court finds that since the government paid in full its obligation as guarantor to the bank on March 3, 1979, and this suit was filed on February 15, 1985, the action was timely filed. The provisions of 28 U.S.C. § 2415(a) state in pertinent part: "Subject to the provisions of Section 2416 of this title, and except as otherwise provided by Congress, every action for money damages brought by the United States or an officer or agency thereof, which is founded upon any contract express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action accrues." Case law is clear that a guarantor's right to reimbursement accrues once it has paid the creditor in full for the principal's dept. United States v. Frisk, 675 F.2d 1079, 1082 (9th Cir.1982); United States v. Tilleraas, 709 F.2d 1088, 1092 (6th Cir.1983). Thus, the government's cause of action accrued on March 3, 1979, and was timely filed.
[2] Although the Defendant/Third party Plaintiff was certified as having completed the Cuban American Lawyers Program at the University of Florida, his memoranda of law and pleadings have left almost every legal issue present in this case virtually untouched. Although read very closely and liberally, Olavarrieta's response to the motion to dismiss was ineffectual.
[3] Defendant/Third Party Plaintiff's Motion to Strike and/or Motion for Judgment on the Pleadings is DENIED. The motion is without a shred of merit. This case shall proceed without delay.
[1] It is true that the Board of Regents did not file its Motion to Dismiss until December 5, 1985 although the Motion to Dismiss filed on behalf of the University of Florida was filed May 14, 1985. This disparity, however, was a result of confusion as to the efficacy of service of process on the Board's part rather than its desire to thwart the smooth resolution of this case.
[2] The United States has recently filed its Motion for Summary Judgment; Olavarrieta's response thereto has just been filed. The original action is now ready for disposition.
[3] The additional relief requested by Olavarrieta such as causing an involuntary dissolution of the Board of Regents is summarily denied.
[1] See In Re: Proposed Amendment to Article IV, Section 22, Rules of the Supreme Court Relating to the Admission to the Bar, Case No. 43,040 (Fla. July 31, 1973).
[2] The mechanism by which the student loans were made to Olavarrieta is set forth in the Federal Insured Student Loan Program, Tit. IV-B of the Higher Education Act of 1965, 20 U.S.C. §§ 1071-1088 (1980). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260823/ | 632 F. Supp. 997 (1986)
Dwight COLEMAN, Lester Crowsheart, Sharon Crowsheart, Russel Folmer, Anna Mae Folmer, George Hatfield, June Hatfield, Donald McCabe, Diane McCabe, Gary Barrett, Rosemary K. Barrett, Richard L. Harmon, Betty J. Harmon, Larry L. Robertson, Nancy K. Robertson, Ross Wade and Maureen Wade, on behalf of themselves and others similarly situated, Plaintiffs,
v.
John R. BLOCK, Secretary of Agriculture; Charles W. Shuman, Administrator of the Farmers Home Administration; Ralph W. Leet, State Director of the Farmers Home Administration; Harold T. Aasmundstad, Glen W. Binegar, Allen G. Drege, Dennis W. Larson, Odell O. Ottmar, and Joseph J. Schneider, as District Directors of the Farmers Home Administration for North Dakota; and Samuel Delvo, Lorace Hakanson, Larry Leier, Charles Schaefer and James Well, as County Supervisors of the Farmers Home Administration in North Dakota, Defendants.
Civ. No. A1-83-47.
United States District Court, D. North Dakota, Southwestern Division.
March 3, 1986.
*998 Robert Vogel, Grand Forks, N.D., William R. King, Atlanta, Ga., Burt Newborne, American Civil Liberties Union, New York City, Alan Kanner, Philadelphia, Pa., William, Reesman & Tate, Booneville, Mo., Martha A. Miller, Atlanta, Ga., James T. Massey, Lynn A. Hayes, Minneapolis, Minn., for plaintiffs.
Arthur R. Goldberg, Merril Hirsh, Dept. of Justice, Civil Div., Washington, D.C., Gary Annear, Asst. U.S. Atty., Fargo, N.D., for defendants.
MEMORANDUM AND ORDER
VAN SICKLE, Senior District Judge.
Plaintiffs move to amend and modify this court's final injunctive order of February 17, 1984 by striking the following underscored language:
[T]he defendants, their agents, subordinates, and employees are enjoined from proceeding to liquidate, or to terminate the living and operating allowance previously determined in the administration of any existing loan unless [prescribed notice and hearing requirements are followed],
and by substituting for the underscored phrase:
language which makes it clear that all farmer-borrowers have a statutory and regulatory entitlement to reasonable family living and farm operating allowances and that those allowances cannot be terminated until the borrower has been provided the due process protections listed under Paragraph B of the Court's February 17, 1984 Order.
*999 Plaintiffs' motion follows this court's denial of a motion to find contempt filed by Joe Nelson and Louise Nelson. In an order filed in the contempt action on June 17, 1985, this court held that the injunction's language ("previously determined in the administration of any existing loan") was directed only to existing farm and home plans. Plaintiffs contend that that interpretation of the final injunction allows FmHA to effectively "starve out" borrowers without providing due process protections.
FACTS
The facts supporting the Nelson motion for contempt are summarized as follows. The Nelsons borrowed $40,000.00 for operating expenses from FmHA in 1983. In conjunction with that loan, they and the FmHA county supervisor developed and signed a farm and home plan for the period from April 6, 1983 through December 21, 1983. In September, 1983, the Nelsons borrowed an additional $22,000.00 to finance planting an additional 500 acres of 1984 winter wheat. Proceeds from sale of the 1984 wheat were to be applied to the $22,000.00 loan. Because the yield on the 1984 crop was lower than expected, sale of the crop netted only approximately $16,000.00. The FmHA county supervisor insisted that all the proceeds be applied to the $22,000.00 loan, and thus refused to release any of the proceeds for living or operating expenses. FmHA denied further financing to the Nelsons on April 6, 1984. A proposed farm and home plan was submitted in conjunction with the application for another loan, but was not approved by FmHA officials.
Plaintiffs submitted written declarations of several FmHA borrowers in support of their motion. Robert Smith, of Murdoch, Minnesota, stated that he did not have a current farm and home plan approved by an FmHA official, that he had received no operating loans from FmHA during the current production cycle, and that if FmHA refuses to release farm production income for living and operating expenses, his family cannot continue to operate the farm. Robert Hansen, of Belgrade, Minnesota, stated that he did not have a current farm and home plan approved by an FmHA official, that he had received no operating loans from FmHA during the current production cycle, and that if FmHA refuses to release farm production income for living and operating expenses, his family cannot continue to operate the farm. Dwight Coleman, of Dunseith, North Dakota, filed a declaration making statements virtually identical to those made by Hansen and Smith.
FmHA farmer-borrower Betty Puckett, of Lecompte, Louisiana, stated that when she applied for a 1984 FmHA operating loan, she signed a blank farm and home plan at FmHA's request and that the county supervisor later completed and signed that form. Puckett's request for a 1984 operating loan was denied. Puckett states that the county supervisor then refused to authorize releases from proceeds of a 1983 soybean crop for living and operating expenses. Puckett received a written response from the state FmHA office indicating it would not make the requested releases because the farm and home plan prepared in conjunction with the 1984 loan application stated the crop proceeds would be applied to the debt to FmHA. Puckett states further that if FmHA continues to refuse to authorize release of farm production income for living and operating expenses, continued operation of the farm will be jeopardized.
FmHA farmer-borrower Gloria Ridenhour, of Delaware, Oklahoma, filed a declaration stating that she is currently indebted to FmHA, but does not have a current farm and home plan because the county supervisor, in 1984, suggested a quiet liquidation of the farming operation. She stated further that FmHA had subordinated its security interest in a wheat crop to a local bank, and that though the bank had agreed to release a portion of those crop proceeds to pay living and operating expenses, FmHA has refused to authorize that release under the subordination agreement. *1000 Ridenhour states finally that if FmHA continues to refuse to authorize releases of farm production income for living and operating expenses, the family cannot continue to operate the farm.
Paul Menzies, of East Prairie, Missouri, filed a declaration stating that he received a 1984 FmHA operating loan and that the proceeds from that loan, as well as all income from sale of the 1984 crop, were placed in a bank account over which FmHA had control. Menzies further stated that FmHA has refused to release proceeds from sale of the 1984 crop to pay living and operating expenses, that his request for a 1985 FmHA operating loan was denied, and that he has never received a notice of acceleration from FmHA.
In addition to the declarations of FmHA borrowers, Plaintiffs filed an affidavit of Thomas A. Dickson, an attorney who has represented FmHA borrowers. He states that an FmHA county supervisor told him it was the policy of his county office to not release farm production income until a crop lien for the following growing season was signed, regardless of FmHA's extension of operating loans.
Finally, Plaintiffs submitted a declaration of Larry G. Smith, a farm credit counselor for the State of North Dakota. He stated that at least two FmHA borrowers had told him that FmHA officials had requested the borrowers' signatures on 1986 crop security agreements prior to releasing funds from 1985 crop proceeds covered by FmHA security agreements. Attached to Smith's declaration was a copy of a letter Smith believed was sent to all FmHA borrowers in at least one North Dakota county. The letter states that 1986 crop security agreements must be signed before releases are made on 1985 farm proceeds and outlines priorities for release:
1. Chattel and crop subordinations,
2. Operating expenses according to farm and home plan,
3. FmHA annual installments,
4. Real estate payments and real estate taxes,
5. Planned secured debts,
6. Delinquencies on secured debts and delinquent taxes,
7. Unsecured debts.
Defendants submitted declarations of several FmHA officials. Bernie E. Kyllo, Chief of Farmer Programs for the North Dakota state FmHA office, stated that FmHA employees in North Dakota have been instructed "to release proceeds from the sale of chattel security normally sold in the operation of the farm based on a prior year's plan regardless of whether the plan has expired or not." Further, Kyllo responded to Coleman's declaration by stating that Coleman had a farm and home plan approved for 1985, that on March 7, 1985 FmHA released proceeds from Coleman's sale of his 1984 grain crop for operating expenses, that FmHA believes Coleman has sold livestock on which FmHA holds a security interest without reporting receipt of the sale proceeds to FmHA, and that Coleman had requested no releases of crop proceeds during the years 1982 through 1984. James P. Moen, Chief of Farmer Programs for the Minnesota state FmHA office, stated that FmHA employees in Minnesota had been instructed "to release proceeds from the sale of chattel security normally sold in the course of operating the farm in accordance with the most recent farm and home plan even if that plan has expired." Moen responded to Hansen's declaration; he stated that Hansen's most recently approved farm and home plan was for 1983, that FmHA had not received the payments which it was projected to receive in the 1983 plan, that the only money FmHA had received from Hansen from 1983 through September 30, 1985 was small amounts for use of cash collateral as ordered by a bankruptcy court, and that FmHA has not refused any requests for release of farm proceeds to Hansen during 1984 or 1985. Moen also responded to Smith's declaration; he stated Smith's most recent farm and home plan was for 1984, that Smith's proposed 1985 plan was not approved because FmHA felt projected income and operating expenses *1001 were unrealistically high, that FmHA approved Smith's January 1, 1985 request for release of proceeds, and that FmHA has not refused to release proceeds from the sale of chattel security to Smith.
Glenn J. Hertzler, Jr., Acting Assistant Administrator for Farmer Programs for the national FmHA office, stated that a current year's farm and home plan, if one exists, forms the basis for FmHA's decisions on release of chattel proceeds. He stated that FmHA does not require an annual farm and home plan unless a borrower is receiving an FmHA loan or other FmHA assistance, provided a borrower is not making major changes in farm operation. Hertzler stated further that when there is no current farm and home plan, "releases may be made based on the County Supervisor's knowledge of the borrower's current operations, plus inquiry and verification of the facts about the borrower's current operation in the running case record (§ 1962.17(d)(2)). The release decision is an informal one that is made when the borrower reports the disposition of normal income security, or asks the County Supervisor to endorse a check received as proceeds from a sale."
DISCUSSION
Plaintiffs argue that the injunction, as presently worded and interpreted, allows FmHA to effectively force borrowers to liquidate or terminate farming operations without affording mandated procedural due process. Many members of the Plaintiff class, as a condition for receiving loans from FmHA, have granted FmHA a security interest in all farm proceeds, i.e., livestock, crops, milk production. Many members of the Plaintiff class depend on FmHA's release of its security interest in those proceeds to pay essential family living and farm operating expenses. Many members of the Plaintiff class do not have current farm and home plans, even though FmHA continues to hold a security interest in their farm production income. Plaintiffs do not allege FmHA has refused to grant releases incorporated into a farm and home plan. Rather, they challenge FmHA's refusal to release proceeds for living and operating expenses when a borrower, who has no current farm and home plan, has unexpected living expenses or when a borrower's income is less than projected.
FmHA regulations in effect prior to November 1, 1985 established priorities for the use of farm production proceeds when income was lower than projected. The first priority was for payment of family living and farm operating expenses and the second priority was for payments on debts to FmHA:
Distribution of income from normal income security. On finding that the amount of income originally planned for the year will not be received, the County Supervisor will determine, in consultation with the borrower, how to use the income that is available during the remainder of the planned year as shown on Form FmHA 431-2 or FmHA 431-4.... Priorities in distributing the income that will be available are as follows:
(i) Pay necessary farm, home, and other expenses planned for payment by cash as incurred.
(ii) Prorate repayments or credit advance for necessary farm, home, and other operating expenses to FmHA and other creditors.
(iii) Make planned payments on other debts as shown on Table K of Form 431-2 [Farm and Home Plan] or Part I of Form FmHA 431-3....
7 C.F.R. § 1962.17(c) (1985). See also 7 C.F.R. § 1924.57(c)(4) (1985).
Plaintiffs argue that FmHA borrowers have a constitutionally protected property interest in the release of farm production income which arises from FmHA's regulations and from FmHA loan agreements, and which exists without regard to whether a current farm and home plan exists. They argue their position is consistent with the social welfare goals of the FmHA loan program. Plaintiffs argue also that a borrower's agreement to apply farm proceeds to an FmHA debt (such as on "Schedule K" of the standard FmHA farm and home *1002 plan) cannot be considered a knowing and voluntary waiver of the right to due process protections should actual farm production income fall below projected farm production income.
Defendants raise several arguments in opposition to the motion to modify the injunction. They argue that Plaintiffs have demonstrated no actual injuries justifying the relief they seek, that Plaintiffs have demonstrated no "changed circumstances" or failure of the final injunction's purpose justifying modification of the injunction, and that Plaintiffs should not now be allowed to raise matters they could have raised initially. Further, they argue Plaintiffs' waiver analysis is irrelevant, because a borrower and FmHA are actually negotiating a contractual agreement for the release of farm production income in negotiating a farm and home plan. Finally, they argue FmHA's new regulations, adopted November 1, 1985, require agreement between a borrower and FmHA on release of farm production income regardless of whether there is a current farm and home plan and that the new regulations would prevent termination of release of those proceeds without notice and a hearing.
This court will first address Defendants' assertion that Plaintiffs have not demonstrated changed circumstances justifying modification of the injunction. A district court has inherent power to modify a permanent injunction when warranted by changed circumstances. U.S. v. Swift & Co., 286 U.S. 106, 114, 52 S. Ct. 460, 462, 76 L. Ed. 999 (1932). Where modification is sought by the party in whose favor the injunctive relief was granted, the standard for determining whether modification is appropriate is whether the purposes of the litigation as incorporated into the injunctive decree have been fully achieved. See U.S. v. United Shoe Machinery Corp., 391 U.S. 244, 248, 88 S. Ct. 1496, 1499, 20 L. Ed. 2d 562 (1968); see also U.S. v. City of Chicago, 663 F.2d 1354, 1360 (7th Cir.1981). This court concludes that Plaintiffs have shown facts sufficient to allow this court to consider whether a modification of the injunction to fully effectuate its purposes is necessary.
In their extensive briefs on this motion, both parties discussed the November 1, 1985 regulations, though Plaintiffs took the position that those regulations are not relevant to this motion. This court recently granted Plaintiffs' motion to file a supplemental complaint to raise allegations concerning those new regulations. The instant motion will be decided without regard to those regulations.
FmHA distinguishes between "termination" of releases of farm production income and "refusals to release" farm production income. "Termination" occurs when all releases of farm production income are frozen at the time a borrower's farming operation is liquidated; FmHA asserts this practice has not been followed since this court's injunction of November 14, 1983. A "refusal to release" is made during the course of loan servicing when FmHA denies a borrower's individual request for release.
A decision on the instant motion requires an analysis of the nature of an FmHA borrower's constitutionally protected interest. In its order issuing a preliminary injunction on Plaintiffs' principal complaint, this court observed:
The defendants argue that the plaintiffs' interest in continuing their participation in the farmer loan program is not a legitimate property interest. They argue that this interest is merely an abstract need or desire and under the holding of Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701 [2709] 33 L. Ed. 2d 548 (1972) does not qualify as a property right. However, this court finds otherwise. When a borrower begins a loan program he has a strong expectation that it will continue to its scheduled date of completion. Further, when he makes up his Farm and Home Plan with the FmHA the borrower has a strong expectation he will receive the necessary living and operating expenses called for in the plan. That the borrower's *1003 plan may be terminated for default does not defeat these expectations anymore than such possible termination for ineligibility would defeat the expectation of persons receiving social assistance and food stamps. Just so, the Supreme Court has recognized that welfare recipients have a legitimate expectation that their benefits will continue. Goldberg v. Kelly, 397 U.S. 254, 261-62, 90 S. Ct. 1011, 1016-17, 25 L. Ed. 2d 287 (1970). (Emphasis in original).
Coleman v. Block, 562 F. Supp. 1353, 1364 (D.N.D.1983). In that same order, as well as in the later order for permanent injunctive relief, Defendants were enjoined from "repossessing chattels of the plaintiffs or in any way proceeding against or depriving the plaintiffs of property in which the defendants have a security interest," id. at 1367, unless specified due process protections are provided. See also Coleman v. Block, 580 F. Supp. 194, 211 (D.N.D. 1984). In its order granting permanent injunctive relief, this court wrote:
Eldridge [Matthews v. Eldridge, 424 U.S. 319 [96 S. Ct. 893, 47 L. Ed. 2d 18] (1976)] suggests that a threshold problem is still whether the interest is protected by due process, i.e., whether there exists in the mortgaged chattels a property interest protected by the Fifth Amendment. [Citation omitted.] Whether such a threshold problem is advisable or not, a property interest clearly exists in a chattel mortgage. The distinction between a possessory interest and a security interest, and the relative rights attendant to each interest need not be elaborated here. See, e.g., U.C.C. § 9-501. And even if a property interest is not found, FmHA is obligated to set up a meaningful appeal process. Anything less would be contrary to the Constitution as well as the administrator's legal authority.
Coleman, 580 F.Supp. at 207.
Also relevant is the principle, which this court has recognized in earlier orders, that the fruits of a person's labor are entitled to certain protections from creditors:
There is deeply embedded in the law ... a distinction between farm products on the one hand, and equipment and inventory on the other hand. This difference, although not precise, is important because it points us towards a fundamental element of our social thinking, i.e., the biblical injunction that "a laborer is worthy of his [or her] hire."
Id. at 203.
FmHA borrowers have a strong expectation that releases of FmHA's security interests in farm production income for necessary living and operating expenses will be made, whether or not a current farm and home plan exists; their interest in those releases is protected by the due process clause of the fifth amendment. That interest arises from the special protections afforded farm income as a form of wages, as well as from FmHA's regulations. A farm and home plan based on projected farm income which is higher than actual farm income cannot be considered a borrower's agreement to FmHA's later refusal to release its security interest when income is less than expected. Though not basing its decision on this provision, this court notes the protection for "normal income security" afforded by the Food Security Act of 1985, Pub.L. No. 99-447 (1985), which amended 7 U.S.C. § 1985.
This court concludes that the language of the permanent injunction is inadequate to insure FmHA borrowers' rights in "normal income security" or farm production income are protected as guaranteed by the due process clause of the fifth amendment. Because of that inadequacy, the purposes of the litigation as incorporated into the injunctive decree have not been fully achieved and modification of that decree is in order.
Modification of the decree will not take the form of deleting a phrase and inserting another as suggested by Plaintiffs; rather it will take the form of adding *1004 a paragraph addressed solely to those situations where FmHA holds a security interest in a borrower's "normal income security" or farm production income, the borrower does not have a current farm and home plan approved by an FmHA official, and FmHA denies a request for release of FmHA's security interest for purposes of paying living and operating expenses. While a borrower is entitled to an opportunity to request a hearing to contest a refusal to release FmHA's security interest, a borrower is not entitled to such a hearing prior to FmHA's denial decision. The procedural protections to which a borrower is entitled must be tailored so as to be practical. See Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975). The decisions at issue are a part of the daily operation of the FmHA county offices. The decisions can be made only after borrowers request releases. FmHA cannot, as a practical matter, be compelled to hold a hearing prior to making a decision to deny the requested release. However, the borrower must be given a written notice outlining the right to a hearing to be held at the earliest date practicable, and in no event more than twenty days after the denial of the requested release. That hearing, like the hearings required under the present language of the injunction, may be informal; notes of the hearing, as distinguished from a verbatim record, must be preserved by FmHA.
In reaching this decision, as in its earlier orders, this court does not pass judgment on the wisdom of FmHA's decisions in the cases of individual borrowers. This order is addressed only to Plaintiffs' rights to notice of, and an opportunity to contest, FmHA's decisions.
CONCLUSION
For the foregoing reasons, IT IS ORDERED:
1). Plaintiffs' motion to amend and modify this court's final injunctive order of February 17, 1984 is granted.
2). This court's order of February 17, 1984 is amended by adding the following paragraph F:
Where FmHA holds a security interest in a borrower's "normal income security" or farm production income and a borrower does not have a current farm and home plan approved by an FmHA official, defendants are enjoined from refusing to release FmHA's security interest to provide an allowance for necessary living and operating expenses unless:
1. Defendants give any plaintiff as to whom a requested release for necessary living and operating expenses is refused a notice:
a. That informs the borrower of the right to a hearing, within twenty days, to contest the refusal and to establish eligibility for loan deferral pursuant to 7 U.S.C. § 1981a;
b. That provides the borrower with a statement that gives the reasons for the refusal to grant the requested release;
c. That informs the borrower of the factors that determine eligibility for loan deferral;
d. That informs the borrower of the official who would preside at the hearing. The official designated shall not have been actively involved in the initial decision to deny the requested release.
2. The official presiding at any hearing shall present his or her decision in writing, giving the reasons therefor. The written decision shall be furnished to the borrower. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260827/ | 125 Cal. Rptr. 2d 155 (2002)
101 Cal. App. 4th 1354
Harry W. LOW, as Insurance Commissioner, etc., Plaintiff,
v.
GOLDEN EAGLE INSURANCE COMPANY et al., Defendants and Respondents,
Fred Gluckman, et al. Claimants and Appellants.
No. A095698.
Court of Appeal, First District, Division Three.
September 12, 2002.
Rehearing Denied October 11, 2002.
*158 Michael M. Angello, San Diego, for Appellants Fred Gluckman and Dr. Margot Aiken.
Richard P. Edwards, Koeller, Nebeker, Carlson & Haluck, for Respondent Golden Eagle Insurance Company.
Mitchell L. Lathrop, Kathy P. Waring, and Andrew R. McCloskey, Luce, Forward, Hamilton & Scripps, San Diego, for Respondent Golden Eagle Insurance Company Liquidating Trust.
PARRILLI, J.
The procedural convolutions of this 15-year-old case have resulted in what *159 appears to be a question of first impression in insurance subrogation law: When the amount of an insured's recovery from a tortfeasor is capped due to an error in the insured's complaint, does this cap also limit the recovery of an insurer that intervenes to claim subrogation? While we recognize the long-standing rule that a subrogated insurer stands in the shoes of its insured and is subject to all defenses that may be asserted against the insured's claim, under the unique circumstances of this case we conclude the insurer's default judgment against a tortfeasor for subrogation may not be reduced in a later proceeding under Insurance Code section 11580, subdivision (b)(2)[1] because of a pleading error that limited amounts the insured parties could recover.
In this appeal, claimants Fred Gluckman and Dr. Margot Aiken seek relief from a judgment denying their application for an order to show cause against the California Insurance Commissioner, as conservator of Golden Eagle Insurance Company (Golden Eagle). Claimants contend the trial court erred in limiting the amount of their recovery on one default judgment and in disallowing recovery on a second default judgment, which they had obtained by an assignment from their insurer. They also claim they were wrongly denied a full hearing on their bad faith claim against Golden Eagle. We reverse the judgment insofar as it precludes claimants from recovering the full amount of the default judgment they obtained by assignment from their insurer and we affirm the remainder of the judgment.
BACKGROUND
In February 1989, S & W Associates (S & W) negligently started a fire while constructing a roof on claimants' home, causing approximately $130,000 in damage. Claimants filed claims for this loss with Allstate Insurance (Allstate), their homeowners' insurer, and Golden Eagle, the insurer of S & W. Upon investigating the claim, Golden Eagle determined S & W had fraudulently obtained coverage by misrepresenting itself as a janitorial service, rather than a roofing business. Golden Eagle denied the claim and rescinded the S & W policy. Claimants did successfully obtain $130,000 from Allstate under their homeowners' insurance policy.
Claimants sued S & W and others, alleging $130,000 in property damage and $180,000 in lost property value and praying for compensatory damages "in an amount in excess of $25,000.00." Allstate intervened in this lawsuit. In its complaint-in-intervention against S & W, Allstate claimed a priority right of subrogation and sought to recover the $130,000 it had paid to claimants. After Golden Eagle refused to defend S & W, claimants obtained a default judgment against S & W for slightly over $2.2 million. Allstate later obtained its own default judgment against S & W for $190,429.88 (representing the payment to claimants plus costs and interest).
Seeking to recover on the $2.2 million default judgment, claimants filed suit against Golden Eagle under section 11580, subdivision (b)(2), which allows a judgment creditor to bring a direct action for recovery against the liability insurer.[2] Golden Eagle answered the complaint but successfully moved to reduce the amount of the judgment to the $25,000 sum set forth in the prayer of claimants' complaint against S & W. During the next four months, *160 claimants obtained an assignment of Allstate's rights against S & W and amended their complaint against Golden Eagle to pursue collection of the $190,429.88 default judgment as Allstate's assignees. The case proceeded to trial. A jury found that S & W had made material misrepresentations to Golden Eagle in applying for coverage, but Golden Eagle was estopped from rescinding the policy because Golden Eagle continued to accept premiums and even increased the policy limits after it had notice of S & W's roofing activities. However, the jury also found claimants were not entitled to recover from Golden Eagle under section 11580.
Claimants appealed the judgment entered on this jury verdict. They claimed the trial court erred in (1) reducing the amount of their default judgment against S 6 W to the $25,000 set forth in the prayer of their complaint, and (2) permitting Golden Eagle to litigate the issue of S & W's liability. Division One of the Fourth District Court of Appeal upheld the reduction in claimants' default judgment but reversed on the second ground (because the default judgment conclusively established S & W's liability). The Court of Appeal's opinion did not mention the default judgment obtained by Allstate, or any rights claimants might have had to recover on this judgment by assignment. In a petition for rehearing, claimants asserted the court's approval of the reduction of their default judgment was at odds with Greenup v. Rodman (1986) 42 Cal. 3d 822, 231 Cal. Rptr. 220, 726 P.2d 1295. They also stated the court's opinion "overlook[ed]" the "housekeeping issue[]" of claimants' right to recover on the Allstate default judgment. Since Golden Eagle never sought to reduce this judgment, claimants asked that the opinion be modified to instruct the trial court to enter judgment against Golden Eagle and for claimants for the full amount of Allstate's default. After the Court of Appeal denied rehearing, claimants renewed these arguments in a petition for review in the Supreme Court, which was also summarily denied.
While claimants' case was on appeal, the Insurance Commissioner seized Golden Eagle and instituted conservation proceedings. In August 1997, the San Francisco County Superior Court issued an order approving Golden Eagle's rehabilitation plan. Pursuant to the rehabilitation plan, the newly created Golden Eagle Insurance Corporation (GEIC) was responsible for "covered" claims arising under the insurer's policies, and the Golden Eagle Liquidating Trust (GELT) was established to administer "uncovered" claims (such as claims for extra-contractual damages or bad faith) pending against the company. The San Francisco County Superior Court retained jurisdiction to supervise the rehabilitation plan and adjudicate all third party claims asserted against Golden Eagle and the liquidating trust. Accordingly, the court adopted procedures for adjudicating orders to show cause arising from the rejection by GEIC or GELT of covered and uncovered claims.[3]
Upon remand of claimants' case from the Court of Appeal, the trial court (the San Diego County Superior Court) transferred the matter to the San Francisco County Superior Court pursuant to that court's order approving the Golden Eagle rehabilitation plan. Claimants had previously submitted a proof of claim in the conservation proceedings for "$2,206,217.80 plus," and on February 14, 2000, they submitted a "supplemental proof of *161 claim," which described the procedural posture of the case and argued claimants' entitlement to "actual" and "default damages" and a recovery (of unspecified amount) on their bad faith claim.[4] After claimants' claims were denied,[5] they applied to the San Francisco County Superior Court for an order to show cause. The court denied the application and denied claimants' motion for reconsideration or for new trial. This appeal followed.
DISCUSSION
I. Claimants' Right to Recover on Allstate's Default Judgment
Claimants assert the trial court erred in denying their claim for recovery of the approximately $190,000 default judgment, which was originally obtained by Allstate against S & W and which Allstate later assigned to them. Because this judgment was never reduced, as claimants' own default judgment was, claimants insist they have a right to recover the full amount as Allstate's assignees. In response, GEIC argues Allstate's subrogation rights were limited to the rights claimants had as Allstate's insureds, and claimants may not recover this same amount twice. Further, GEIC contends res judicata bars claimants from relitigating the issue, since claimants previously asked the Fourth District Court of Appeal and the Supreme Court to approve their right to recover on the Allstate judgment and these courts declined to do so.
We do not believe principles of waiver or estoppel bar claimants from litigating their right to recovery for the All-state default judgment. There is no indication in the record that this issue was presented to the jury, or otherwise litigated, in the first trial. More importantly, it appears no judgment was ever entered against Golden Eagle for the amount of the Allstate judgment. The judgment claimants appealed to the Fourth District Court of Appeal simply reflected the jury's verdict that claimants could recover nothing from Golden Eagle under section 11580. Although claimants asked the Court of Appeal and the Supreme Court to vindicate their position that, upon remand, their recovery from Golden Eagle should encompass the Allstate judgment as well as their own default judgment, these courts properly declined to decide this collateral issue.
We therefore address the merits of GEIC's subrogation argument. As the trial court observed in ruling on claimants' application for an order to show cause, there has been no prior adjudication of Golden Eagle's liability for Allstate's judgment against S & W. Thus, the only way claimants may recover the Allstate judgment from Golden Eagle is by asserting Allstate's rights (which claimants obtained by assignment). Allstate intervened in claimants' suit against S & W to assert a claim for subrogation. Specifically, Allstate claimed a right to recover in subrogation the $130,000 it had paid claimants, plus assorted costs and prejudgment interest.
In general, two avenues of recovery, equitable contribution and subrogation, are available to an insurer who pays *162 for its insured's loss. (Fireman's Fund Ins. Co. v. Maryland Casualty Co. (1998) 65 Cal. App. 4th 1279, 77 Cal. Rptr. 2d 296 (Fireman's Fund).) "In the case of insurance, subrogation takes the form of an insurer's right to be put in the position of the insured in order to pursue recovery from third parties legally responsible to the insured for a loss which the insurer has both insured and paid. [Citations.]" (Id. at pp. 1291-1292, 77 Cal. Rptr. 2d 296.) Equitable contribution, however, describes the insurer's "right to recover, not from the party primarily liable for the loss, but from a co-obligor who shares such liability with the party seeking contribution. [Footnote] In the insurance context, the right to contribution arises when several insurers are obligated to indemnify or defend the same loss or claim, and one insurer has paid more than its share of the loss or defended the action without any participation by the others. Where multiple insurance carriers insure the same insured and cover the same risk, each insurer has independent standing to assert a cause of action against its coinsurers for equitable contribution when it has undertaken the defense or indemnification of the common insured." (Id. at p. 1293, 77 Cal. Rptr. 2d 296, italics omitted.)
Unlike the situation in Fireman's Fund, Allstate and Golden Eagle clearly insured different parties. (Compare Fireman's Fund, supra, 65 Cal.App.4th at p. 1287, 77 Cal. Rptr. 2d 296.) Indeed, although the trial court considered the availability of equitable contribution, claimants here do not purport to assert a right of equitable contribution against Golden Eagle, and they have offered no evidence or argument to show the Allstate and Golden Eagle policies covered the same risk. Rather, claimants insist that, by virtue of an assignment from Allstate, they own a default judgment worth close to $190,000, and they claim they should be allowed to recover this entire sum from Golden Eagle as judgment creditors under section 11580, subdivision (b)(2).[6]
As claimants apparently recognize, the $190,000 judgment represents a recovery for Allstate in subrogation. But Allstate's subrogation claim was entirely derivative of claimants' substantive claims against S & W: "The right of subrogation is purely derivative. An insurer entitled to subrogation is in the same position as an assignee of the insured's claim, and succeeds only to the rights of the insured. The subrogated insurer is said to '"stand in the shoes"' of its insured, because it has no greater rights than the insured and is subject to the same defenses assertable against the insured. Thus, an insurer cannot acquire by subrogation anything to which the insured has no rights, and may claim no rights which the insured does not have. [Citations.]" (Fireman's Fund, supra, 65 Cal.App.4th at pp. 1292-1293, 77 Cal. Rptr. 2d 296.)
Because "a subrogated insurer stands in the shoes of the insured and has no greater rights than the insured" (Truck Ins. Exchange v. Superior Court (1997) 60 Cal. App. 4th 342, 350, 70 Cal. Rptr. 2d 255), Allstate was subject to all the defenses S & W (and, by extension, Golden Eagle) either raised or could have raised against claimants. (Fireman's Fund Ins. Co. v. Maryland Casualty Co. (1994) 21 Cal.App.4th *163 1586, 1596, 26 Cal. Rptr. 2d 762 [a subrogated insurer "is subject to all defenses the third party could have asserted against the insured"].) Arguably, one such defense was that claimants could recover no more than the $25,000 sum stated in the prayer of their complaint. GEIC contends Allstate was also bound by this finding because it stood in claimants' shoes as a subrogated insurer. According to GEIC, Allstate was not entitled to recover in subrogation any amount exceeding the established value of its insured's claims.
In response, claimants observe that an insurer may attempt to recover subrogation from a third party tortfeasor by intervening in a suit brought by the insured or by filing its own, independent action. Claimants also insist an insurer who intervenes in an action should not be held accountable for "every pleading flaw" in the case brought by its insured. They rely on Deutschmann v. Sears, Roebuck & Co. (1982) 132 Cal. App. 3d 912, 914-917, 183 Cal. Rptr. 573, which permitted an intervening insurer to proceed with its subrogation action even after the insured's case was dismissed for failure to file proof of service of the summons. The court in Deutschmann stated "an intervener is not limited by every procedural decision made by the plaintiff and observed that, despite the plaintiffs wishes, an intervener may move to disqualify a judge, or object to pleadings or the court's jurisdiction, or demand a jury trial. (Id. at p. 916, 183 Cal. Rptr. 573.) However, although an intervener enjoys the same procedural rights as any other party in litigation, the intervener remains bound to substantive limitations on its recovery imposed by the law of subrogation. (See Bright v. American Termite Control Co. (1990) 220 Cal. App. 3d 1464, 1470, 269 Cal. Rptr. 793.) Indeed, the Deutschmann court observed, "It is true that the failure of the plaintiff to recover from a defendant would likewise deprive an intervener of the right to recover, since a decision on the merits would affect the rights of both plaintiff and intervener to collect from defendant." (Deutschmann v. Sears, Roebuck & Co., supra, at p. 916, 183 Cal. Rptr. 573.)
Courts have held a subrogated insurer has no right to recover from a third party who has been released from liability by the insured. (Fireman's Fund Ins. Co. v. Maryland Casualty Co., supra, 21 Cal. App.4th at pp. 1596-1597, 26 Cal. Rptr. 2d 762; see also Continental Mfg. Corp. v. Underwriters at Lloyds London (1960) 185 Cal. App. 2d 545, 556 [insurer had no right of subrogation where insured had contractually released defendant from liability for negligence].) Nor may an insurer pursue a subrogation recovery if the insured is itself barred from filing suit. (See Truck Ins. Exchange v. Superior Court, supra, 60 Cal.App.4th at pp. 349-350, 70 Cal. Rptr. 2d 255 [insurer could not intervene to claim subrogation where insured lacked capacity to sue due to its failure to file tax returns].) However, these cases merely illustrate the unremarkable proposition that subrogation is available only if the insured has an existing, legally enforceable cause of action against the tortfeasor. (See 16 Couch, Insurance (3d ed.2000) § 223:41, pp. 223-63 to 223-65.) They do not decide the precise question before us i.e., whether an intervening insurer is subject to the same limitation on damages that has been imposed on its insured due to a jurisdictional flaw in the insured's complaint. Neither party has directed us to a case addressing this question.
We conclude the rule that a subrogated insurer stands in the shoes of its insured, and is subject to defenses against claims by the insured, cannot be applied to limit Allstate's recovery for subrogation amounts appropriately pleaded in *164 its complaint against S & W. In accordance with Code of Civil Procedure section 580 and Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d 489,165 Cal. Rptr. 825, 612 P.2d 915, claimants' default judgment against S & W was reduced to the $25,000 stated in their complaint's prayer for relief even though the body of the complaint described many thousand dollars more in damages. The purpose of the rule that a plaintiffs relief on default cannot exceed the amount prayed for in the complaint "is to insure that defendants in cases which involve a default judgment have adequate notice of the judgments that may be taken against them. [Citation.]" (Becker v. S.P.V. Construction Co., supra, at p. 493, 165 Cal. Rptr. 825, 612 P.2d 915.) But, while application of the Becker rule limited claimants' damages on default to $25,000, Allstate's complaint-in-intervention put S & W on notice that the actual damages were much greater.[7] Thus, allowing Allstate to recover the full amount of its subrogation default judgment does not frustrate the purpose of the rule limiting the amounts recoverable in default judgments. Under the contrary view urged by GEIC, a defaulting party who had actual notice could hide behind one plaintiffs pleading flaw to avoid paying the full extent of damages claimed by another. Such a result would be inconsistent with the fundamental fairness rationale underlying Code of Civil Procedure section 580. (See Becker v. S.P.V. Construction Co., supra, at p. 494, 165 Cal. Rptr. 825, 612 P.2d 915 ["The notice requirement of section 580 was designed to insure fundamental fairness"].)
Moreover, although it is often said an insured and a subrogated insurer share a single cause of action, these parties cannot recover the same damages. "When, as often happens, the insured is only partially compensated by the insurer for a loss (because of deductibles, policy limits, and exclusions), operation of the subrogation doctrine 'results in two or more parties having a right of action for recovery of damages based upon the same underlying cause of action.' [Citation.] The insured retains the right to sue the responsible party for any loss not fully compensated by insurance, and the insurer has the right to sue the responsible party for the insurer's loss in paying on the insurance policy. [Citation.]" (Allstate Ins. Co. v. Mel Rapton, Inc. (2000) 77 Cal. App. 4th 901, 908, 92 Cal. Rptr. 2d 151; see also Bright v. American Termite Control Co., supra, 220 Cal. App.3d at p. 1469, 269 Cal. Rptr. 793 [noting "only Allstate possessed the right to sue to recover the subrogated property loss and only the Brights had the right to sue to recover for their personal injuries"].)
In the present case, claimants sought additional and different damages from S & W than those Allstate sought in intervention.[8] Because the measure of a subrogated insurer's recovery is generally different than the recovery of the insured party (see Allstate Ins. Co. v. Mel Rapton, Inc., supra, 77 Cal.App.4th at p. 908, 92 Cal. Rptr. 2d 151; Bright v. American Termite Control Co., supra, 220 Cal.App.3d at p. 1469, 269 Cal. Rptr. 793), and because Allstate's complaint-in-intervention gave S & W notice of the full extent of property *165 damages, we conclude the procedural limitation imposed on the claimants' recovery from S & W should not be applied to limit Allstate's subrogation recovery. Unlike claimant's complaint against S & W, Allstate's complaint-in-intervention was not defective; it gave S & W notice of the full extent of property damage for which Allstate sought subrogation. The third-party tortfeasor would receive an unfair windfall if an insured's defective pleading of its damages could cut off a subrogated insurer's right to recover its own damages. (Cf. Conservatorship of Edwards (1988) 198 Cal. App. 3d 1176, 1184, 244 Cal. Rptr. 330 [settlement by an insured does not impair the insurer's subrogation rights if the tortfeasor had knowledge the insurer had provided indemnification].)
Finally, in what it concedes is a "catch 22" argument, GEIC claims the Allstate judgment is worth nothing because an insurer is entitled to recover subrogation only after its insured has been "`made whole,'" or fully compensated for its losses. (Plut v. Fireman's Fund Ins. Co. (2000) 85 Cal. App. 4th 98, 104, 102 Cal. Rptr. 2d 36; see also Sapiano v. Williamsburg Nat. Ins. Co. (1994) 28 Cal. App. 4th 533, 535, 33 Cal. Rptr. 2d 659 [insurer not entitled to subrogation where insured's settlement with third-party tortfeasor was not sufficient to compensate for full extent of the insured's loss].) Because claimants have repeatedly complained the $25,000 default judgment did not fully compensate them for their losses, GEIC argues Allstate would not have been entitled to recover subrogation, and hence claimants can recover nothing as assignees of Allstate's subrogation judgment. Application of the "made whole" rule in this case would therefore yield the perverse result of denying claimants any further recovery because they were not fully compensated in the first place. In any event, this argument fails because a court judgment on behalf of the insured is considered to be determinative of the amount of the insured's loss, such that the amount awarded constitutes a full recovery for purposes of establishing the insurer's right to subrogation. (16 Couch, Insurance, supra, § 223:161, p. 223-176.)
Thus, we conclude the trial court erred in limiting claimants' recovery on the Allstate default judgment to $25,000. The question arises whether claimants, as Allstate's assignees, can recover the full amount of the $190,429.88 Allstate default judgment, or whether this sum must be reduced by the $25,000 recovery claimants obtained in their own default judgment. As discussed, an insured and a subrogated insurer cannot recover the same damages. Claimants' complaint against S & W did seek to recover the property damages that are the subject of Allstate's subrogated claim, but it also sought additional damages, such as a decline in the home's fair market value and emotional distress. (See ante, fn. 8.) The parties have suggested no principled basis upon which to dissect claimants' $25,000 default judgment into amounts compensating them for property damage as opposed to other losses. More importantly, the record in this appeal includes no transcripts or other record of the evidence claimants presented in the "prove-up" hearing through which they obtained a default judgment against S & W. On remand, the trial court should hold an evidentiary hearing to determine how much of claimants' $25,000 default judgment represents compensation for property damage. This portion must then be subtracted from Allstate's subrogation judgment to avoid a double recovery.
II. Amount of Recovery on Claimants' Default Judgment
Claimants raise two arguments regarding the amount they should recover *166 from Golden Eagle on their default judgment against S & W. First, relying on a statement lifted out of context from Greenup v. Rodman (1986) 42 Cal. 3d 822, 826, 231 Cal. Rptr. 220, 726 P.2d 1295, claimants attempt to reargue the original trial court finding limiting recovery on claimants' default judgment against S & W to the $25,000 amount stated in their prayer for relief. Claimants raised this argument in the Fourth District Court of Appeal, in briefs and a petition for rehearing, and in a petition for review in the Supreme Court. Though not citing Greenup, the Court of Appeal conclusively rejected claimants' position. This appellate decision represents a final determination of the issue, and the doctrine of res judicata bars claimants from challenging it here as wrongly decided. (Beckstead v. International Industries, Inc. (1982) 127 Cal. App. 3d 927, 933-934, 179 Cal. Rptr. 767; see also Panos v. Great Western Packing Co. (1943) 21 Cal. 2d 636, 640, 134 P.2d 242 ["An erroneous judgment is as conclusive as a correct one"].) Claimants seek to avoid this bar by asserting unspecified "`policy considerations'" (Vandenberg v. Superior Court (1999) 21 Cal. 4th 815, 829, 88 Cal. Rptr. 2d 366, 982 P.2d 229) should prevent the application of res judicata in their "unique situation." We disagree. The Supreme Court in Vandenberg discussed policy reasons weighing against the imposition of collateral estoppel when, for example, the prior proceeding took place in an informal setting, without adequate procedural safeguards, or when collateral estoppel is invoked by one who was not a party to the prior litigation. (Id. at pp. 829-330, 88 Cal. Rptr. 2d 366, 982 P.2d 229.) No such problematic circumstances apply in the present case. On the contrary, because these same parties previously litigated the reduction of claimants' default to a final judgment, which was approved by a Court of Appeal, application of the res judicata bar is entirely appropriate.[9]
Claimants also seek to raise a new argument in this appeal concerning their right to prejudgment interest on the $25,000 default judgment. Without citation to the record, claimants state that a "dispute has arisen" between the parties concerning the date prejudgment interest began to accrue on the default judgment. Claimants' attorney did raise the issue of interest in oral argument on the motion for reconsideration or for new trial, noting the parties had a difference of opinion on the accrual date.[10] The trial court did not resolve the issue, but noted this disputed matter would have to be resolved in the first instance by the Golden Eagle trustees. Accordingly, the court stayed its decision on the issues of interest and costs pending the trustees' resolution of the dispute. Claimants have presented us no decision to review, and it appears no judgment has been rendered, regarding claimants' entitlement to prejudgment interest. This issue is not ripe for appellate review.
III. Commissioner's Rejection of Claimants' Bad Faith Claim
In their jury trial, claimants pursued a claim against Golden Eagle for bad faith under Hand v. Farmer's Ins. Exchange (1994) 23 Cal. App. 4th 1847, 29 Cal. Rptr. 2d 258 (Hand). In accordance with the Hand decision, a claimant who has received *167 a final judgment for damages from an insured is considered a third party beneficiary of the insurance policy and may sue the insurer for bad faith in wrongfully refusing to pay the judgment. (Id. at p. 1858, 29 Cal. Rptr. 2d 258.) The jury decided claimants were not entitled to recover their losses from Golden Eagle under section 11580 and so did not reach the Hand bad faith issue. Because this judgment was reversed on appeal, claimants expected to have another opportunity to litigate their bad faith claim against Golden Eagle. But, since Golden Eagle had been placed in liquidation while the case was on appeal, claimants were forced to pursue the bad faith claim by filing a proof of claim with GELT. Claimants now contend they were denied due process because GELT denied their claim without a hearing.
The short answer to this complaint is that claimants were not entitled to a hearing. The deputy trustees of GELT,[11] acting on behalf of the Insurance Commissioner, received claimants' claim in accordance with procedures set forth in the Insurance Code for adjusting claims against an insolvent insurer. (See §§ 1010 et seq.) Proceedings under the insurance insolvency laws are "special proceedings" for which express findings of fact and conclusions of are not required. (Carpenter v. Pacific Mut. Life Ins. Co. (1937) 10 Cal. 2d 307, 328, 74 P.2d 761.) Moreover, "[a] jury trial cannot be demanded as a matter of right in a special proceeding unless it is expressly made available by statute." (Kinder v. Superior Court (1978) 78 Cal. App. 3d 574, 581, 144 Cal. Rptr. 291.) The insurance liquidation statutes do not provide for jury trials. (Ibid.) Claimants have made no attempt to show the trustees failed to consider their bad faith claim in accordance with statutory procedures. Claimants had a right to judicial review of the Insurance Commissioner's decision in an order-to-show-cause proceeding (§ 1032; Abraugh v. Gillespie (1988) 203 Cal. App. 3d 462, 467, 250 Cal. Rptr. 21), and they availed themselves of this right. Accordingly, they were not denied due process of law.
Claimants also assert the trial court erred in upholding GELT's denial of their bad faith claim. The court below found no abuse of discretion in the trustees' conclusion that Golden Eagle did not act in bad faith in refusing to pay the default judgment claimants obtained against S & W. Claimants do not challenge the trial court's review of the Trustees' decision under the abuse of discretion standard; therefore, we do not consider whether this was the appropriate standard of review. On appeal, however, we review factual findings of the trial court for substantial evidence, resolving all evidentiary conflicts in favor of the judgment. (Mariscal v. Old Republic Life Ins. Co. (1996) 42 Cal. App. 4th 1617, 1622-1623, 50 Cal. Rptr. 2d 224.)
In general, injured third parties have no right of action for bad faith against an insurer that fails to pay a claim. (Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal. 3d 287, 304-305, 250 Cal. Rptr. 116, 758 P.2d 58.) But an action against the insurer is available for "an unreasonable, bad faith refusal to pay a judgment creditor claimant the entire amount of the judgment, after it becomes final...." (Hand, supra, 23 Cal.App.4th at p. 1857, 29 Cal. Rptr. 2d 258.) In such circumstances, the Hand court described the insurer's duty as the "duty not to withhold in bad faith payment of damages which the *168 insured has become obligated by judgment to pay." (Ibid.)
We conclude substantial evidence supports the rejection of claimants' bad faith claim. Golden Eagle had a valid basis for disputing coverage and refusing to pay the default judgment against S & W, because it is undisputed S & W fraudulently procured the Golden Eagle policy by lying about the nature of its business. Golden Eagle only became responsible for paying this judgment after a jury found Golden Eagle was on notice of the fraud and was therefore estopped from denying coverage. Nevertheless, claimants assert Golden Eagle acted in bad faith by attempting to hide its prior knowledge of S & W's roofing activities. Specifically, they claim Golden Eagle destroyed contemporaneous log notes of a telephone call from an insurance agent informing Golden Eagle about S & W's roofing activities. Claimants also allege Golden Eagle "bribe[d]" Sandra Mehas, the person who procured the S & W policy, into giving favorable testimony for Golden Eagle. We have reviewed the selective collection of documents and transcript pages in the Appellants' Appendix, which claimants cite as proof of Golden Eagle's bad faith, and have identified no basis for disturbing the decision of the trustees and the trial court. Claimants have shown only that, while contemporaneous log notes were often made of telephone calls at Golden Eagle, the company's file on S & W contained no notes of a specific phone call. Claimants did not establish that a note was made and later destroyed. In fact, Golden Eagle's attorney produced to claimants a memorandum indicating the company was put on notice of S & W's roofing activities in 1988. Nor does the record contain evidence supporting claimants' allegation of bribery. On the contrary, it appears Golden Eagle paid Ms. Mehas $2,500 to procure a release from her of claims she might assert against the company, including potential bad faith claims, arising from two insurance policies.[12]
DISPOSITION
The judgment is reversed insofar as it limits the value of Allstate default judgment to $25,000. The matter is remanded for a hearing to determine the amount claimants may recover on the Allstate default judgment, consistent with the views expressed above. In all other respects, the judgment is affirmed. Each party shall bear its own costs on appeal.
We concur: McGUINESS, P.J, and POLLAK, J.
NOTES
[1] All statutory references are to the Insurance Code unless otherwise specified.
[2] The record on appeal includes only the first two pages of this complaint, which is titled "Complaint for Collection of Judgment, Bad Faith and for Declaratory Relief."
[3] Section 1032 permits claimants to seek judicial review by the liquidation court of adverse claim determinations.
[4] It is impossible to tell from the appellate record what materials, if any, claimants submitted to GEIC and GELT in support of their original proof of claim.
[5] GELT rejected claimants' uncovered claim (i.e., the bad faith claim) on April 12, 2000. The record on appeal does not include a corresponding notice describing GEIC's action on claimants' covered claims. Because GEIC has not disputed the issue here, or in the trial court, we assume these claims were properly presented to GEIC and were rejected.
[6] Claimants do not contend Golden Eagle is collaterally estopped from challenging the amount of the Allstate default judgment. In the previous appeal of claimants' first judgment against Golden Eagle, the Fourth District Court of Appeal, Division One, held that Golden Eagle had the right to collaterally attack excess damages awarded to claimants in the default proceedings. (Gluckman v. Golden Eagle Ins. Co. (June 3, 1999, D026424) [nonpub. opn.].)
[7] For this purpose, Allstate's complaint-in-intervention was analogous to a statement of damages served on a defaulting defendant pursuant to Code of Civil Procedure section 425.11.
[8] Specifically, in addition to property damage in an amount "no less than" $130,000, claimants alleged a loss "no less than" $180,000 in the fair market value of their property and unspecified damages for lost profits, assorted fees and expenses, and emotional distress.
[9] Because there is a final judgment fixing claimants' recovery on the default judgment at $25,000, claimants are also barred from claiming a greater recovery under section 1028, which generally prohibits the use of a default judgment as evidence, in liquidation proceedings, of liability or a claimant's right to damages.
[10] This appears to be the only mention of the issue in the record before us.
[11] Despite claimants' insistence that the claim was arbitrarily denied by "an alleged sub-employee" of the Insurance Commissioner, the rejection notice was in fact signed by the executive director of GELT, acting in his capacity as the liquidator of Golden Eagle.
[12] In the release, Ms. Mehas states: "I made contact with the representatives of Golden Eagle and proposed this Release because I felt it was the ethical thing to do, after I was contacted by representatives of Mr. Gluckman, who offered to buy an assignment of claims against Golden Eagle from me." Ms. Mehas also released claims relating to Golden Eagle's delay in adding a certain car to S & W's commercial automobile policy. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260828/ | 632 F. Supp. 30 (1986)
Ramon AZURIN and Gregorio Araneta, Plaintiffs,
v.
UNITED STATES and William Von Raab, Commissioner of the United States Customs Service, Defendants.
Court No. 86-03-00336.
United States Court of International Trade.
March 17, 1986.
Anderson, Hibey, Nauheim & Blair (Eric I. Garfinkel and Richard A. Hibey), Washington, D.C., for plaintiffs.
Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civil Div., Dept. of Justice (J. Kevin Horgan and Elizabeth Seastrum), Washington, D.C., for defendants.
MEMORANDUM OPINION AND ORDER
DiCARLO, Judge:
Plaintiffs seek a temporary restraining order preventing the United States Customs Service (Customs) "from transferring ... to any Committee of the United States House of Representatives, any representatives of the Republic of the Philippines, or to any other person"[1] originals or duplicates of property that arrived in the United States with Ferdinand E. Marcos, the former president of the Republic of the Philippines, and his party on February 26, 1986.
Plaintiffs' motion is denied.
Background
Arriving in the United States at Hickam Air Force Base, Hawaii, on February 26, 1986, Mr. Marcos and his party brought with them currency, documents, jewelry and other property. On March 7, 1986, plaintiff Araneta filed Customs Form 7501 *31 and Entry Summary for certain property as "attorney-in-fact" for Mr. Marcos as importer of record.[2] On March 10, 1986, plaintiff Azurin executed a Customs Form 4790, Report of International Transportation of Currency or Monetary Instruments, on behalf of Mr. Marcos, covering currency. Neither plaintiff claims an ownership interest in any of the property currently in Customs custody.
Plaintiffs allege that all procedures incidental to Customs inspection and processing of the property were completed on March 12, 1986, but that Customs had received instructions not to release the property.
On March 13, 1986, plaintiffs, uncertain as to which court had jurisdiction, commenced mandamus actions in this Court and in the United States District Court for the District of Hawaii[3] seeking to compel Customs to release the property to plaintiffs.
In both mandamus actions it is alleged that Customs retention of the property violates section 142.19(b) of the Customs Regulations, 19 C.F.R. § 142.19(b) (1986), and plaintiffs' rights to freedom from unreasonable search and seizure, due process, and privacy. Plaintiffs invoke this Court's jurisdiction under 28 U.S.C. § 1581(i)(1) and (4) (1982). The Court finds that it has jurisdiction over the mandamus action.
Simultaneously with the filing of the actions for mandamus, plaintiffs sought temporary restraining orders in both courts to prevent Customs from releasing copies of the documents in Customs possession pursuant to formal requests from the Chairman and Ranking Minority Member of the Subcommittee on Asian and Pacific Affairs of the Foreign Affairs Committee of the United States House of Representatives and the Republic of the Philippines.[4] Plaintiffs claim a constitutional right to privacy would be violated by release of the documents.
At a conference immediately following the filing of plaintiffs' complaint and motion for restraining order, the Court directed that briefs be filed by the close of business the following day, and that counsel for both parties appear for oral argument on the motion on March 15, 1986.
On March 14, 1986 the Court was informed by plaintiffs' counsel that the District Court for the District of Hawaii had issued a temporary restraining order ex parte enjoining defendant for ten days from allowing access to the property described in the Customs Form 7501 "except to those persons entitled to access pursuant to lawful subpoena, other legal process compelling production, or pursuant to the laws or treaties of the United States."[5] Since the order issued by the district court did not unconditionally prohibit access to the documents, plaintiffs did not withdraw their motion for a restraining order in this Court.
The Temporary Restraining Order
Although the motion before the Court is for a temporary restraining order, plaintiffs in their brief say the criteria for granting a preliminary injunction are appropriately applied to its motion. Since defendants received notice of plaintiffs' motion, and both parties were afforded an opportunity to be heard orally and in writing, the Court will consider, under an appropriately relaxed evidentiary standard, the criteria for issuance of a preliminary injunction. Levas & Levas v. Village of Antioch, 684 F.2d 446, 448 (7th Cir.1982); Ragold, Inc. v. Ferrero, U.S.A., Inc., 506 F. Supp. 117, 122-23 (N.D.Ill.1980); 11 C. Wright and A. Miller, Federal Practice and Procedure: Civil § 2951, at 499 (1973). These criteria are: 1) threat of immediate irreparable harm; 2) likelihood of success on the merits; 3) that the public interest *32 would be better served by issuing rather than by denying the injunction; and 4) whether the balance of hardships on the parties favors issuing the injunction. See Zenith Radio Corp. v. United States, 1 Fed.Cir. 74, 76, 710 F.2d 806, 809 (1983); S.J. Stile Associates, Ltd. v. Snyder, 68 CCPA 27, 30, 646 F.2d 522, 525 (1981).
Irreparable Harm
An injury is irreparable if it cannot be undone through monetary remedies. S.J. Stile Associates, Ltd. v. Snyder, supra; Spiegel v. City of Houston, 636 F.2d 997 (5th Cir.1981). Plaintiffs allege that their privacy rights will be irreparably injured if the documents are released. The Court agrees that "the right of privacy must be carefully guarded for once an infringement has occurred it cannot be undone by monetary relief." Deerfield Medical Center v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir.1981). But, for reasons stated in the following section of this opinion, the Court believes that plaintiffs have stated no privacy rights in this action, and, therefore, will suffer no irreparable injury if their motion is denied.
Likelihood of Success
"It is unnecessary for plaintiffs to establish likelihood of success on the merits with `mathematical probability'. Committee to Preserve American Color Television and Imports Committee v. United States, 4 CIT 202, 204, 551 F. Supp. 1142, 1144 (1982)." American Institute for Imported Steel, Inc. v. United States, 8 CIT ___, ___, 600 F. Supp. 204, 209 (1984).
Plaintiffs make two claims: that Customs is unlawfully holding their property, and should return it to them, and that Customs is about to release unlawfully copies of the property to third parties.[6] The Court will consider the likelihood of success of each of these claims.
1. The Mandamus Claim to Compel Customs to Release the Property to Plaintiffs
Plaintiffs claim that Customs refusal to release the property to them violates section 142.19(b) of the Customs Regulations, 19 C.F.R. § 142.19(b), and violates plaintiffs' constitutional rights to be free from unreasonable search and seizure, to due process, and to privacy.
Plaintiffs' contention that 19 C.F.R. § 142.19(b)[7] requires Customs to release property that it has reason to believe may have been imported in violation of the laws or treaties of the United States cannot withstand scrutiny. Section 142.19(b) does not compel Customs to release imported merchandise, but recites the conditions upon which merchandise may be released. Indeed, section 142.19(b)(2) says that merchandise "shall not be released" unless *33 Customs "determines that the merchandise may be admitted into the commerce of the United States."
Section 499 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1499 (1982), provides in part:
Imported merchandise, required by law or regulations made in pursuance thereof to be inspected, examined, or appraised, shall not be delivered from customs custody, except under such bond or other security as may be prescribed by the Secretary of the Treasury to assure compliance with all applicable laws, regulations, and instructions which the Secretary of the Treasury or the Customs Service is authorized to enforce until it has been inspected, examined, or appraised and is reported by the appropriate customs officer to have been truly and correctly invoiced and found to comply with the requirements of the laws of the United States [emphasis added].
See United States v. Garber, 626 F.2d 1144, 1155 (3d Cir.1980) ("customs custody of imported goods continues until the merchandise has been inspected, found to be correctly invoiced, and found to otherwise comply with the laws of the United States"). Customs regulations require that Customs hold imported merchandise until it has been examined. 19 C.F.R. §§ 142.3, 142.7 (1986).[8]
Defendants allege that Customs has not completed its inspection of the merchandise, and that there are conflicting claims to the imported property. The Central Bank of the Philippines has commenced an action in the United States District Court for the District of Hawaii seeking return of the currency. Republic of the Philippines v. Marcos, Civ. No. 86-0155 (D.Haw.). On March 14, 1986, the United States filed a motion to intervene, to file an answer, and a counterclaim in the nature of an interpleader in that action, in which the United States requests the District Court to determine the lawful owner of the currency and other merchandise currently in the possession of Customs. The Republic of the Philippines and the Asian and Pacific Affairs Subcommittee of the Foreign Affairs Committee of the House of Representatives have formally requested copies of all documents brought into the United States by Mr. Marcos and his party.[9] The purpose of both these requests is, in part, to investigate conflicting claims with respect to the ownership of the property claimed by plaintiffs.
Plaintiffs claim that Fonseca v. Regan, 734 F.2d 944 (2d Cir.1984), supports their position that Customs must relinquish the property to them. In that case, plaintiff Fonseca sought to recover possession of a suitcase containing $250,000 misdirected to a New York airport from Bogota, Colombia. Plaintiff had no intent to enter the merchandise into the United States, nor did the United States "demonstrate any colorable claim adverse to that of Fonseca, or *34 even the presence of a legitimate individual claimant." Id. at 950. In this action the property was submitted to Customs custody for entry into the United States, and there are claims adverse to plaintiffs.
Plaintiffs say Customs would be without authority to hold property even in a case where it believed the property was stolen outside the United States and entered in violation of 18 U.S.C. § 2314 (1982).[10] For the reasons stated above, the Court finds no support for this view.
Plaintiffs also contend that Customs refusal to return the property to plaintiffs violates their rights under the fourth and fifth amendments to the Constitution, and to privacy.
The Court finds there is little likelihood of success with respect to plaintiffs' fourth amendment claim. There is no fourth amendment interest with respect to information voluntarily given to a government agency; such information cannot be subject to unreasonable search and seizure.[11]See Couch v. United States, 409 U.S. 322, 335, 93 S. Ct. 611, 619, 34 L. Ed. 2d 548 (1973).
Plaintiffs' claim of deprivation of property without due process in violation of the Fifth Amendment is premature. Plaintiff cites as authority United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in United States Currency, 461 U.S. 555, 103 S. Ct. 2005, 76 L. Ed. 2d 143 (1983). In that case the Supreme Court applied a four-part test to determine if the length of time between seizure of property at the border and the initiation of legal process to determine rights in the property violated due process: length of delay, the reason for the delay, assertion of the claimant's right to recover the property, and prejudice to the claimant.[12] Here, the government has held the property less than three weeks. As stated supra, Customs says it has not finished inspecting the property, and that there are substantial indications of conflicting claims to the property. Plaintiffs have made only the barest allegation of prejudice in being deprived of use of the property.[13]See United States v. Von Neumann, ___ U.S. ___, 106 S. Ct. 610, 88 L. Ed. 2d 587 (1986).
Plaintiffs present no authority, and the Court finds none, which compels Customs to release the imported merchandise to plaintiffs. The Court holds that plaintiffs have no likelihood of success, at the present time, on their mandamus claim.
2. The Privacy Claim to Enjoin Customs from Releasing Copies of the Property to Third Parties
Turning to plaintiffs' claims that their constitutional privacy rights are violated if Customs releases copies of the property to third parties, the question before the Court is whether plaintiffs assert a constitutionally protected interest in the property. Plaintiff Azurin asserts only that he executed a currency declaration form. Plaintiff Araneta alleges that he executed the entry as an "attorney-in-fact."
"Ordinarily, one may not claim standing ... to vindicate the constitutional rights of *35 some third party." Barrows v. Jackson, 346 U.S. 249, 255, 73 S. Ct. 1031, 1034, 97 L. Ed. 1586 (1952). Plaintiffs make no claim that there is some "genuine obstacle" to the third party's assertion of its own rights, Singleton v. Wulff, 428 U.S. 106, 114-16, 96 S. Ct. 2868, 2874-75, 49 L. Ed. 2d 826 (1976), or that the privacy rights of the third party would be "diluted or adversely affected" should that party appear. Cf. Griswold v. Connecticut, 381 U.S. 479, 481, 85 S. Ct. 1678, 1680, 14 L. Ed. 2d 510 (1962).
Plaintiffs do not provide any reason other than "convenience" why the party-in-interest, Mr. Marcos, is not a plaintiff in this action.[14]
The Court holds that since the plaintiffs have not asserted any ownership in the property or that they have any personal privacy right that is threatened with violation by Customs, and since they have not shown that they are entitled to assert the constitutional rights of third parties,[15] there is little likelihood that they will succeed on their claim seeking to enjoin release of copies or originals of documents.
The Public Interest and the Balance of Hardships
Defendants argue that "[i]f the United States reneges on its promise to the new Philippine Government of President Aquino to release to a specially established Philippine commission copies of these documents for purposes of their examination and investigation, the foreign relations of this country with an important and strategically critical Far Eastern nation may be adversely affected."[16] In support of that claim defendants submitted an affidavit by Michael H. Armacost, Under Secretary of State for Political Affairs, describing the importance and extent of the relationship between the Philippines and the United States, the profound changes which have recently occurred in the Philippines, and the importance to the foreign policy of the United States to fulfill the nation's pledge to assist the Aquino government in its investigation of the Marcos assets.
Inherent in plaintiffs' argument is the claim that the public interest is better served by protecting their asserted constitutional privacy rights than by disclosing copies of the documents to third parties.
The Court recognizes that there may be circumstances in which the public interest requires that constitutional rights of individuals outweigh foreign policy concerns. However, since the Court finds that plaintiffs' constitutional rights are not threatened *36 and that plaintiffs may not assert the constitutional rights of a third party, the Court holds that the public interest would be best served by denying the motion.
In view of the Court's finding that each of the above factors favors denial of the motion, the balance of the equities weighs in favor of defendants.
The motion is denied. So ordered.
NOTES
[1] Motion for Temporary Restraining Order at 1.
[2] Copies of the customs documents were received by the Court on March 17, 1986.
[3] Azurin v. von Raab, Civ. No. 86-0189 (D.Haw.).
[4] These requests are described infra at p. 10.
[5] Azurin v. von Raab, Civ. No. 86-0189, at 2 (D.Haw. Mar. 13, 1986) (temporary restraining order).
[6] Plaintiffs' complaint states only the first of these claims; the second is contained in their motion for a temporary restraining order. At oral argument on March 15, 1986 plaintiffs orally moved, at the Court's suggestion, to amend their complaint to allege the second claim. Defendants have contested the Court's jurisdiction over this claim. The jurisdictional basis of the second claim is not alleged, but is presumably 28 U.S.C. § 1581(i). Since the Court denies the requested relief, it need not decide the jurisdictional issue. See Secretary of the Navy v. Avrech, 418 U.S. 676, 677-78, 94 S. Ct. 3039, 3040, 41 L. Ed. 2d 1033 (1974) (per curiam) ("Without the benefit of further oral argument, we are unwilling to decide the difficult jurisdictional issue.... We believe that even the most diligent and zealous advocate could find his ardor somewhat dampened in arguing a jurisdictional issue where the decision on the merits is thus foreordained.")
[7] 19 C.F.R. § 142.19 states in relevant part:
Merchandise, for which an entry summary serves as both an entry and an entry summary, shall not be released from Customs custody until an appropriate bond has been filed, or the entry has been liquidated, as follows:
....
(b) After liquidation. If a bond has not been filed in accordance with paragraph (a) of this section, the merchandise shall not be released before:
(1) The entry has been liquidated and the full amount of all duties and taxes due, including dumping or other special duties and charges, has been paid, or the right to free entry established.
(2) The district director determines that the merchandise may be admitted into the commerce of the United States, and
(3) All documents relating to the merchandise which are required by law or regulation have been filed.
[8] Customs laws and regulations grant Customs broad authority to search and impound merchandise arriving in the United States. See, e.g., 19 C.F.R. §§ 162.5, 162.6.
[9] On March 6, 1986 the Republic of the Philippines through counsel requested that the United States provide "all documents of any kind whatsoever ... including, but not limited to, asset books, deeds, notes, security instruments, stocks, bonds, any and all negotiable instruments and any and all records of any kind whatsoever." Letter from Mark D. Bernstein to George Roberts, Director, United States Customs Service (Mar. 6, 1986). By diplomatic notes exchanged March 15, 1986, the Republic of the Philippines and the United States entered into an agreement by which the United States agreed to provide the Philippines "with copies of documents requested by it and relevant to its investigation that are now in the possession of U.S. Customs Service and taken into custody in Honolulu on February 26, 1986. It is understood that these documents will be used only for legitimate governmental purposes." The letter from counsel and agreement were provided to the Court as exhibits by defendants at the March 15, 1986 oral argument. See also Convention Between the Government of the United States of America and the Government of the Republic of the Philippines with Respect to Taxes on Income, Oct. 1, 1976, Art. 26, T.I.A.S. No. 10417 (contracting parties agree to exchange information "for the prevention of fraud or for the administration of statutory provisions concerning taxes").
[10] 18 U.S.C. § 2314 provides in part:
Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 of more, knowing the same to have been stolen, converted or taken by fraud....
Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
See United States v. Burger, 728 F.2d 140 (2d Cir.1984); United States v. Noe, 634 F.2d 860 (5th Cir.), cert. denied, 454 U.S. 876, 102 S. Ct. 355, 70 L. Ed. 2d 186 (1981).
[11] For this reason, and for reasons discussed infra, plaintiffs have no constitutional rights to privacy violated by Customs continued retention of the property.
[12] The Court held that an 18-month delay in bringing forfeiture proceedings was reasonable since the government was diligently processing a mitigation petition and pursuing related criminal proceedings, and the claimant never indicated desire for speedy commencement of civil forfeiture proceedings.
[13] Plaintiffs' counsel alleges the denial of access to the property has caused plaintiffs "serious personal inconvenience and concern for unlawful invasion of their rights in the property." Affidavit of Richard A. Hibey, at ¶ 6.
[14] At oral argument, there was the following colloquy with plaintiffs' attorney:
JUDGE DiCARLO: Are you saying these gentlemen who are acting as attorneys have a privacy interest in the property? Or is their interest to get the property back in their possession?
MR. HIBEY: Their purpose is to get the property back into the lawful possession of their principal, Ferdinand Marcos.
....
JUDGE DiCARLO: My only question is privacy interest; the constitutional rights raised by the plaintiffs. Who has those constitutional rights? Are they personal ... to the people who have direct interest in the property?
MR. HIBEY: My suggestion to the Court is that they are personal, but not necessarily exclusive, that they have that there is an umbrella which covers both by virtue of the fact that the principal here is clearly identified. That instead of using a customhouse broker, which is, I understand is not an unusual way for papers to be processed, he simply used individuals within his own retinue.
JUDGE DiCARLO: There are some situations in which a person is unable to present his own privacy claims, raise his own constitutional rights, and things such as that. Is there any reason why the actual owner of the properties in this case is unable or was unable to be a plaintiff in this action and raise the personal right of privacy for himself?
MR. HIBEY: It was only a matter of convenience that caused the papers to be executed in the way that they were executed.
JUDGE DiCARLO: So there was no reason why the owner of the property could not have appeared as a plaintiff, could not have asserted his own privacy rights, and could not have signed an affidavit as to how he would be individually injured, is that correct?
MR. HIBEY: I think that's correct....
Transcript at 18-19.
[15] The Court will not speculate why Mr. Marcos did not submit to the jurisdiction of the Court.
[16] Defendants' Opposition to Plaintiffs' Motion for a Temporary Restraining Order at 25. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260847/ | 131 Cal. Rptr. 2d 303 (2003)
106 Cal. App. 4th 953
Adam PLOTKIN, Plaintiff and Appellant,
v.
SAJAHTERA, INC., Defendant and Respondent.
No. B156195.
Court of Appeal, Second District, Division Seven.
March 4, 2003.
Review Denied June 18, 2003.
*305 Schreiber & Schreiber, Edwin C. Schreiber and Eric A. Schreiber, Encino, for Plaintiff and Appellant.
Kaye Scholer, Jeffrey S. Gordon and Bryant S. Delgadillo, Los Angeles, for Defendant and Respondent.
*304 WOODS, J.
Plaintiff Adam Plotkin filed a lawsuit in class action[1] against defendant Sajahtera, Inc., the owner and operator of the Beverly Hills Hotel ("the Hotel"). Plotkin had been an overnight guest at the Hotel. The gravamen of the complaint was that the Hotel failed to give members of the public notice of the valet parking charge. The court entered a judgment in favor of the Hotel after granting two separate summary adjudication/ summary judgment motions in its favor. We affirm.
FACTUAL AND PROCEDURAL SYNOPSIS
I. The Complaint
The operative pleading, the second amended complaint ("SAC"), alleged nine causes of action based upon violations of the Beverly Hills Municipal Code ("BHMC") and common and/or statutory law. The complaint is based on two theories: (1) valet parking at the Hotel violated certain provisions of the BHMC that govern the size and very specific location of signs for parking charges at a vehicle parking facility; and (2) independent of the BHMC, the Hotel failed to provide Plotkin notice of the $21 a night charge for valet parking during his stay at the Hotel.
II. First Summary Adjudication Motion
The SAC is based in part on alleged violations of BHMC[2] section 4-4.202 and section 4.206. Section 4-4.202 provides that a "vehicle parking facility" shall display at least two very specific rate signs, in very specific locations, and that a patron cannot be charged a fee in excess of the amount designated on the sign.
*306 At the time the original complaint was filed, section 4-4.201 (b) defined "vehicle parking facility" as "an off-street facility used for the parking of motor vehicles." Plotkin alleged that the Hotel's valet drop-off station was subject to regulation as a "vehicle parking facility" as set forth in sections 4-4.202 and 4-4.206.
On May 1, 2001, after the original complaint was filed, the Beverly Hills City Council passed an ordinance amending section 4-4.201(b) ("the Amended Ordinance"). The Amended Ordinance stated:
"`(b) "Vehicle parking facility' shall mean an off-street parking facility, where the primary use of the property is to accommodate the parking of motor vehicles by members of the public. A vehicle parking facility does not include an off-street parking facility that accommodates the parking of motor vehicles by the occupants, customers, clientele and employees of an on-site or adjacent structure where the primary use of that structure is for office, retail or hotel purposes.'"
The Amended Ordinance also states it is "declarative of existing law and does not alter the meaning of Section 4-4.201(b) as adopted on March 20,1962."
The legislative history of the Amended Ordinance is found in the official agenda statement of the city council prepared by the city attorney. The agenda statement notes that there had been complaints about the signage at several Beverly Hills hotels and that the Amended Ordinance was to instruct the city's code enforcement personnel on whether the ordinance applied to hotels and whether the warning letters the enforcement personnel had just issued should be withdrawn. According to the agenda statement, "the City Attorney's Office determined that Section 4-4.202 was intended to apply solely to stand-alone parking lots where parking is the primary use of the site"; and "[t]he City Attorney's Office does not believe that the provisions of Section 4-1.202 were ever intended to apply to the vehicular entrances to hotels."
After the city council passed the Amended Ordinance, the Hotel moved for summary adjudication on the grounds it had no duty under, and had committed no wrongful act with respect to, the BHMC and its signage requirements. The motion was directed to the SAC. In opposition, Plotkin argued the gravamen of the SAC was that those persons parking "were never given notice of the fact that there would be a fee to have their cars parked by the valet." Plotkin admitted the issue of whether the BHMC applied to hotels was not dispositive of any cause of action.
The court ruled that despite the express language, the Amended Ordinance was not declarative of existing law but rather effected a change in the law. The court then ruled the city council intended the Amended Ordinance to apply retroactively. After further briefing, the court assumed Plotkin had an independent, vested right to sue for damages under the pre-amended BHMC and ruled there was no due process barrier to retroactive application and no substantial impairment of the contract right. The court then granted summary adjudication ruling the Amended Ordinance applied retroactively so the Hotel had no duty to comply with the signage provisions.
III. Second Summary Adjudication Motion
The Hotel moved for summary judgment/summary adjudication on the grounds that as a matter of law, Plotkin was given notice of the valet parking charge, and as the court had previously granted summary adjudication on Plotkin's other theory of liability, the two motions disposed of his entire case.
*307 In support of the motion, the Hotel proffered the following facts, which were undisputed. Plotkin was an overnight guest of the Hotel; at the time he parked his car, Plotkin received a valet parking ticket for his car which stated there was a charge to use the valet parking services and what that charge was; and a copy of the actual notice (i.e., the ticket), which Plotkin had attached as an exhibit to the SAC.
Based on the undisputed facts, the court ruled the parking ticket was sufficient notice of the parking charge and the public was not likely to be deceived by the practice of providing notice via the parking ticket. The court granted summary judgment and entered judgment in favor of the Hotel.
Plotkin filed a timely notice of appeal.
DISCUSSION
"On appeal, we review the trial court's decision to grant or deny the summary judgment motion de novo, on the basis of an examination of the evidence before the trial court and our independent determination of its effect as a matter of law. [Citations.] We are not bound by the trial court's stated reasons or rationale. Instead, we review the summary judgment without deference to the trial court's determination of questions of law. [Citations.] We may consider only those facts which were before the trial court, and disregard any new factual allegations made for the first time on appeal. Thus, unless they were factually presented, fully developed and argued to the trial court, potential theories which could theoretically create `triable issues of material fact' may not be raised or considered on appeal." (Citations omitted.) (Sangster v. Paetkau (1998) 68 Cal. App. 4th 151, 163, 80 Cal. Rptr. 2d 66.)
I. The Amended Ordinance was intended to operate retroactively.
Subsequent to this appeal, in Riley v. Hilton Hotels Corp. (2002) 100 Cal. App. 4th 599, 601, 123 Cal. Rptr. 2d 157, a sister division of this district held the Amended Ordinance did not apply retroactively. Respondent argues that Riley is not binding precedent on this court, it misapplied the law, Inland it failed to analyze important evidence in the record. We are not persuaded by the reasoning in Riley.
A. The Beverly Hills City Council clearly indicated its intention that the amendment to BHMC section 4-4.201(b) apply retroactively.
A statute or ordinance has retroactive effect if it substantially changes the legal effect of past events. (20th Century Ins. Co. v. Garamendi (1994) 8 Cal. 4th 216, 281, 32 Cal. Rptr. 2d 807, 878 P.2d 566; Kizer v. Hanna (1989) 48 Cal. 3d 1, 7, 255 Cal. Rptr. 412, 767 P.2d 679; Aktar v. Anderson (1997) 58 Cal. App. 4th 1166, 1182, 68 Cal. Rptr. 2d 595.) Statutes do not operate retroactively unless the legislative body enacting the measure clearly indicates its intent that they do so. (Western Security Bank v. Superior Court (1997) 15 Cal. 4th 232, 243, 62 Cal. Rptr. 2d 243, 933 P.2d 507; Evangelatos v. Superior Court (1988) 44 Cal. 3d 1188, 1208-1209, 246 Cal. Rptr. 629, 753 P.2d 585; see Civ.Code, § 3 [no part of the Civil Code is retroactive "unless expressly so declared"].) A legislative body's intent with regard to prospective or retroactive application may be determined either from the language in the statute itself or, if the extrinsic sources are sufficiently clear, legislative history. (Western Security Bank, supra, at p. 243, 62 Cal. Rptr. 2d 243, 933 P.2d 507; Evangelatos, supra, at pp. 1209-1210, 246 Cal. Rptr. 629, 753 P.2d 585.) The general presumption against retroactive application of statutes *308 is subordinate to "the transcendent canon of statutory construction that the design of the Legislature be given effect." (In re Marriage of Bouquet (1976) 16 Cal. 3d 583, 587, 128 Cal. Rptr. 427, 546 P.2d 1371.)
Both the text of amended BHMC section 4-4.201 (b), defining "vehicle parking facility" to exclude hotel parking structures, and the legislative history of the Amended Ordinance clearly indicate the Beverly Hills City Council's intent that the May 1, 2001 amendment apply to alleged violations of the city's signage regulations that had occurred prior to the amendment's effective date.
First, the Amended Ordinance expressly states that it is "declarative of existing law and does not alter the [existing] meaning of Section 4-1.201 (b). . . ." Both Division Four of our court in Riley v. Hilton Hotels Corp., supra, 100 Cal. App. 4th 599, 606, 123 Cal. Rptr. 2d 157, and the trial court in this case rejected the city council's assertion that the amendment simply effected a clarification of existing law. While that conclusion appears correct,[3] this statutory declaration plainly demonstrates an intent that the amendment apply retroactively. "[E]ven if the court does not accept the Legislature's assurance that an unmistakable change in the law is merely a `clarification,' the declaration of intent may still effectively reflect the Legislature's purpose to achieve a retrospective change. [Citation.] Thus, where a statute provides that it clarifies or declares existing law, `[i]t is obvious that such a provision is indicative of a legislative intent that the amendment apply to all existing causes of action from the date of its enactment. In accordance with the general rules of statutory construction, we must give effect to this intention unless there is some constitutional objection thereto.' [Citations.]" (Western Security Bank v. Superior Court, supra, 15 Cal.4th at pp. 244-245, 62 Cal. Rptr. 2d 243, 933 P.2d 507; accord, Preston v. State Bd. of Equalization (2001) 25 Cal. 4th 197, 222, 105 Cal. Rptr. 2d 407, 19 P.3d 1148 ["This statement alone [of an intent to clarify existing law] strongly suggests that the Legislature intended for [the sections at issue] to `apply to all existing causes of action from the date of its enactment,' even if these subdivisions do not, in fact, clarify existing law. [Citations.]"].)
Second, the limited legislative history of the amendment to BHMC section 4-4.201(b) confirms the city council's intent to apply the narrow definition of "vehicle parking facility" retroactively. The agenda statement of the city council described several complaints about signage at parking facilities adjoining local hotels and asserted that the amendment merely confirmed that the signage regulations governed only stand-alone parking lots. The city council's stated intent in adopting the amendment was thus to instruct the city's code enforcement personnel that this "clarification" applied to recently issued "warning letters," as well as to *309 future enforcement activity. The agenda statement is additional evidence the legislative body intended the amendment to apply to existing causes of action.[4]
B. Application of amended BHMC section 4-4.201(b) to existing causes of action is not constitutionally prohibited.
When a legislative body clearly intends a statute or ordinance to operate retroactively, that intent must be enforced unless retroactivity is (barred by constitutional constraints. (Western Security Bank v. Superior Court, supra, 15 Cal.4th at pp. 243-244, 62 Cal. Rptr. 2d 243, 933 P.2d 507.)
Retroactive application of a statute may be unconstitutional if it is an ex post facto law, if it impairs the obligation of a contract or if it deprives a person of a substantive right without due process of law. (In re Marriage of Buol (1985) 39 Cal. 3d 751, 756, 218 Cal. Rptr. 31, 705 P.2d 354.) Because we are not concerned in this case with either criminal legislation or substantial contract rights,[5] the constitutional question is one of due process only, as guaranteed by article I, section 7 of the California Constitution and the Fourteenth Amendment of the United States Constitution. Those provisions ensure that "vested" rights cannot be retroactively impaired without sufficient justification or in an irrational or arbitrary manner. (See generally In re Marriage of Bouquet, supra, 16 Cal.3d at pp. 591-592, 128 Cal. Rptr. 427, 546 P.2d 1371; Bank of America v. Angel View Crippled Children's Foundation (1999) 72 Cal. App. 4th 451, 458-459, 85 Cal. Rptr. 2d 117; Yoshioka v. Superior Court (1997) 58 Cal. App. 4th 972, 982-983 & fn. 2, 68 Cal. Rptr. 2d 553.)
Initially, we are not convinced that appellant's various causes of action based on claimed violations of the BHMC's signage regulations constitute a "vested right" that has been impaired by retroactive application of a restricted definition of "vehicle parking facility."[6] More than 70 years ago our California Supreme Court distinguished between statutes retroactively affecting common law rights and those affecting rights based on statute: Common law rights were classified as "vested"; rights created by statute were not. (Callet v. Alioto (1930) 210 Cal. 65, 68, 290 P. 438.) "The justification for this rule is that all *310 statutory remedies are pursued with full realization that the legislature may abolish the right to recover at any time." (Id. at pp. 67-68, 290 P. 438; accord, Younger v. Superior Court (1978) 21 Cal. 3d 102, 109, 145 Cal. Rptr. 674, 577 P.2d 1014; but see Flournoy v. State of California, supra, 230 Cal. App. 2d 520, 531-532, 41 Cal. Rptr. 190 ["resting decision upon the distinction between statutory and common law rights is neither justified by reason nor rule"].)
In Graczyk v. Workers' Comp. Appeals Bd. (1986) 184 Cal. App. 3d 997, 229 Cal. Rptr. 494, for example, the appellate court affirmed retroactive application of a statutory change limiting the definition of "employee" under the worker's compensation law, holding there could be no constitutional objection to the retroactive operation of the statute because the applicant had no "vested right" to his status as an employee at the time of injury: "Because it is a creature of statute, the right of action exists only so far and in favor of such person as the legislative power may declare." (Id. at p. 1007, 229 Cal. Rptr. 494.) Similarly, the right to recover specific types of damages, specifically damages for pain and suffering, is not a vested right "because such rights are created by state and common law independent from the Constitution." (Yoshioka v. Superior Court, supra, 58 Cal.App.4th at p. 982, 68 Cal. Rptr. 2d 553 [upholding the retroactive application of Proposition 213's prohibition of the recovery of noneconomic damages by uninsured motorists]; accord, Honsickle v. Superior Court (1999) 69 Cal. App. 4th 756, 765, 82 Cal. Rptr. 2d 36 [adopting reasoning of Yoshioka]; see also Hung v. Wang (1992) 8 Cal. App. 4th 908, 921-922, 11 Cal.Rptr.2d 113["[i]t is well established . . . that state legislative bodies retain the authority to determine what is and what is not an actionable tort, and to decide the conditions under which suits for these alleged wrongs will be entertained so long as the statutes they enact are rationally based and do not draw constitutionally prohibited distinctions."].)
Even if the provisions of the BHMC did create a vested right pursuant to Government Code section 36900, subdivision (a), it is settled that "[v]ested rights are not immutable; the state, exercising its police power, may impair such rights when considered reasonably necessary to protect the health, safety, morals and general welfare of the people." (In re Marriage of Buol, supra, 39 Cal.3d at pp. 760-761, 218 Cal. Rptr. 31, 705 P.2d 354.) "The vesting of property rights . . . does not render them immutable: Vested rights, of course, may be impaired `with due process of law' under many circumstances." (Fn. & internal quotation marks omitted.) (In re Marriage of Bouquet, supra, 16 Cal.3d at p. 592, 128 Cal. Rptr. 427, 546 P.2d 1371 [state's interest in equitable dissolution of marital relationship supported use of police power to abrogate rights in marital property that derived from unfair former law]; Hermosa Beach Stop Oil Coalition v. City of Hermosa Beach (2001) 86 Cal. App. 4th 534, 565-571, 103 Cal.Rptr.2d 447[upholding retroactive application of local ordinance prohibiting oil exploration within city limits].)
Determining whether a particular retroactive provision violates due process by impairing a vested right requires weighing several factors: "`the significance of the state interest served by the law, the importance of the retroactive application of the law to the effectuation of that interest, the extent of reliance upon the former law, the legitimacy of that reliance, the extent of actions taken on the basis of that reliance, and the extent to which the retroactive application of the new law would disrupt those actions.'" (In re Marriage of Buol, supra, 39 Cal.3d *311 at p. 761, 218 Cal. Rptr. 31, 705 P.2d 354; see also Yoshioka v. Superior Court, supra, 58 Cal.App.4th at p. 983, 68 Cal. Rptr. 2d 553.)
The city's amendment of the definition of "vehicle parking facility" to limit signage requirements to stand-alone parking lots is an appropriate exercise of its police power (see Interstate Marina Development Co. v. County of Los Angeles (1984) 155 Cal. App. 3d 435, 450, 202 Cal. Rptr. 377) and serves a legitimate public interest in regulating the businesses within the city. Retroactive application of the amended definition to existing disputes regarding the scope and interpretation of the signage ordinance was necessary to further the city's interest in ensuring fair and appropriate code enforcement. (See In re Marriage of Bouquet, supra, 16 Cal.3d at p. 594 & fn. 11, 128 Cal. Rptr. 427, 546 P.2d 1371 [retroactive application of amended statute to rectify inequities resulting from former law serves important state interest]; Battle v. Kessler (1983) 149 Cal. App. 3d 853, 860, 197 Cal.Rptr. 170["[T]he state had a legitimate interest in attempting to right a wrong created by its own defective legislation."].)
In contrast to the significant interests supporting the city's intended retroactive application of the amended ordinance, there is absolutely no basis in the record from which we could conclude that appellant in fact relied in any manner on the broader definition of "vehicle parking facility" contained in the former version of the ordinance. Indeed, given that the gravamen of his complaint is lack of notice of applicable parking rates, it is difficult to imagine how any such reliance could even have been alleged. Absent such reliance, a change in the law cannot fairly be said to have harmed appellant. (See Yoshioka v. Superior Court, supra, 58 Cal.App.4th at p. 983, 68 Cal. Rptr. 2d 553, fn. 2 ["The burden of demonstrating the constitutional infirmity of a statutory scheme is squarely upon the challenger."]; Anacker v. Sillas (1976) 65 Cal. App. 3d 416, 423, 135 Cal. Rptr. 537.)
II. The Notice Was Reasonable.
The parking ticket states in conspicuous, bold capital type, on two separate lines, set off from the other text (which is in smaller print) with margins and unambiguous language:
registered guests
overnight parking $21.00
The court ruled that as a matter of law, the notice on the parking ticket was sufficient notice of the parking charges to defeat all appellant's common law/statutory law claims. Appellant contends the court was incorrect, especially as to the fraudulent and deceptive business practices claims.
Under Business and Professions Code section 17200,[7] a prohibited business practice is any practice which can be deemed unlawful, unfair, or fraudulent. (See South Bay Chevrolet v. General Motors Acceptance Corp. (1999) 72 Cal. App. 4th 861, 878, 85 Cal. Rptr. 2d 301 [Because section 17200's definition is disjunctive, the statute is violated where a practice is unlawful, unfair or fraudulent or in violation of section 17500.].) To assert a claim, one need only show that members of the public are likely to be deceived. (Bank of the West v. Superior Court (1992) 2 Cal. 4th 1254, 1267, 10 Cal. Rptr. 2d 538, 833 P.2d 545.)
Appellant contends the business practice at issue should be considered to violate the *312 UCA. Appellant reasons it would have been easy to post a sign informing the public of the parking charges; a consumer might assume valet parking was a free service; respondent's failure to notify patrons in advance of its parking charge robbed members of the public of their choice to either accept the charge and use the valet, decide the charge was too high and park elsewhere, or use the self-parking if it was provided for a lesser fee. Appellant further argues there was no reason not to post the rates; the practice violates respondent's normal practice of notifying consumers of charges in advance; and the practice forced the public to accept the charge. Appellant concedes the language is clear, but urges that the deceptive practice is the manner of delivery, as there is an issue as to whether the public would look at the ticket. Appellant further suggests that hotels should take reasonable steps to ensure most users are informed of the charge in advance and that a large sign would be best.
First, appellant is not clear what the alleged unfair business practice is. We assume appellant is objecting to providing notice via the parking ticket. Second, as noted by the court below, some of the factual basis for appellant's argument, particularly that directed toward the manner of delivery of the ticket (e.g., customers do not read the ticket, the ticket is handed face up to the customer) is not supported by any evidence in the record.
In Schnall v. Hertz Corp. (2000) 78 Cal. App. 4th 1144, 93 Cal. Rptr. 2d 439, the defendant's standard car rental agreement required renters to choose either to purchase fuel from defendant at the commencement of the rental or pay a fuel service charge if they failed to return the car with a full tank. The complaint alleged the charge was an unfair business practice, and the defendant unfairly and fraudulently concealed/obscured the charge. The Court of Appeal held the trial court erred in dismissing the plaintiffs unfair business practice concealment claim as the per gallon rate was not disclosed in the rental agreement but only in the rental record a small and hard-to-read document consisting of mainly indecipherable abbreviations, which raised an issue of fact as to whether a reasonable customer would know of the charge. (Id., at pp. 1163-1170, 93 Cal. Rptr. 2d 439.)
A similar issue was raised in Shvarts v. Budget Group, Inc. (2000) 81 Cal. App. 4th 1153, 97 Cal. Rptr. 2d 722, in which car renters also claimed a refueling charge for rental cars returned without a full gas tank was an unlawful business practice. The court held the public was not likely to be deceived as the amount per gallon was clearly printed on the first page of the rental agreement. (Id., at p. 1160, 97 Cal. Rptr. 2d 722.) The valet ticket issued by respondent is similar to the notice provided in Shvarts, not Schnall; the language is in bolder print than the body of the ticket, set off by margins and not confusing.
Appellant argues the rental car cases are distinguishable, as rental customers know they will be charged. However, common sense dictates it would be unreasonable for someone availing himself of valet parking at a hotel in the Los Angeles metropolitan area, much less Beverly Hills, not to expect to pay for valet parking. The ticket provides reasonable and advance notice of the charge. Although a rate sign could arguably have been better notice, there is no requirement that reasonable notice has to be the best possible notice. Moreover, a potential parker could ask if there is a charge or a self-parking lot and thus is not forced to use valet parking. Accordingly, we agree with the trial court that reasonable notice of the *313 parking charge was provided and that the public was not likely to be deceived.
Thus, as both the summary adjudication and summary judgment motions were properly granted, we affirm the judgment.
DISPOSITION
The judgment is affirmed. Respondent to recover costs on appeal.
We concur: PERLUSS, P.J, and JOHNSON, J.
NOTES
[1] No class had been certified at the time of the subject motions.
[2] Unless otherwise noted, all section references are to the BHMC.
[3] The amendment's substantial narrowing of the definition of "vehicle parking facility" does not necessarily preclude a finding that it merely clarifies, rather than changes, existing law. (Western Security Bank v. Superior Court, supra, 15 Cal.4th at p. 243, 62 Cal. Rptr. 2d 243, 933 P.2d 507 [The purpose of an amendment "need not necessarily be to change the law. [Citation.] Our consideration of the surrounding circumstances can indicate that the Legislature made material changes in statutory language in an effort only to clarify a statute's true meaning. [Citations.] Such a legislative act has no retrospective effect because the true meaning of the statute remains the same. [Citations.] [¶] One such circumstance is when the Legislature promptly reacts to the emergence of a novel question of statutory interpretation."].)
[4] Respondent's request for judicial notice of "An Ordinance of the City of Beverly Hills Declaring Retroactive an Amendment to the Beverly Hills Municipal Code Concerning Parking Signage, Adopting New Regulations Concerning Notice of Parking Rates, and Amending the Beverly Hills Municipal Code," which became effective on January 17, 2003, is denied as it is unnecessary for the resolution of this appeal.
[5] Appellant asserts the right to notice contained in BHMC sections 4-4.202 and 4-4.206 was "imputed" into his parking contract with the Hotel. However, in light of the trial court's finding, unchallenged on appeal, that appellant neither considered nor relied upon the ordinance in establishing his contractual relationship with the Hotel, any impact of the amended ordinance on his contract rights is constitutionally insignificant. (Allied Structural Steel Co. v. Spannaus (1978) 438 U.S. 234, 244, 98 S. Ct. 2716, 57 L. Ed. 2d 727 [legislative impairment of contract rights is forbidden only if the impairment is substantial]; Danekas v. San Francisco Residential Rent Stabilization & Arbitration Bd. (2001) 95 Cal. App. 4th 638, 651, 115 Cal. Rptr. 2d 694 [same].)
[6] Identifying a right as "vested" or not often simply represents the conclusion rather than a helpful step in the analysis of the due process issues potentially raised by retroactive application of a statute. (See In re Marriage of Bouquet, supra, 16 Cal.3d at p. 592, fn. 9, 128 Cal. Rptr. 427, 546 P.2d 1371; Flournoy v. State of California (1964) 230 Cal. App. 2d 520, 530-531, 41 Cal. Rptr. 190.)
[7] Section references in this section are to the Unfair Competition Act ("UCA"), which is found at Business and Professions Code section 17200 et seq. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316452/ | 148 Ga. App. 869 (1979)
253 S.E.2d 253
ROHRIG
v.
THE STATE.
56654.
Court of Appeals of Georgia.
Argued October 16, 1978.
Decided February 2, 1979.
Peters & Peebles, Douglas N. Peters, for appellant.
Robert E. Keller, District Attorney, Harold G. *872 Benefield, Assistant District Attorney, for appellee.
McMURRAY, Judge.
The Georgia State Patrol received a telephone tip that a Pontiac Grand Prix with a certain Texas tag number was transporting drugs up Interstate 75 toward Atlanta. The communications officer who received this tip broadcast a lookout to law enforcement officers patrolling Interstate 75. A state trooper operating his radar spotted the Grand Prix traveling in excess of the speed limit and pulled it over on a speeding charge. The automobile was subsequently searched without the driver's consent and a considerable quantity of marijuana found in the trunk.
The driver of the Grand Prix, who was the sole occupant of that automobile, was indicted for violation of the Georgia Controlled Substances Act. Defendant made his motion to suppress the marijuana found in the trunk of the automobile, contending that the search of the automobile was illegal and unreasonable. Defendant's motion to suppress was denied. This case comes to us on interlocutory appeal to consider the issues raised by *870 defendant's motion to suppress. Held:
The state argues that the tipster in this case is an identified interested citizen, and that, therefore, the credibility of that individual should be viewed as less suspect than a confidential informant likely to be a member of the criminal community. An "identified interested citizen" is one who is the victim of a crime or a person who has witnessed a crime and who voluntarily communicates information regarding the crime to law enforcement officers. This person establishes his credibility by identifying himself and otherwise cooperating with law enforcement officials in a manner consistent with the best interest of society. See Tuzman v. State, 145 Ga. App. 761, 766 (2a) (244 SE2d 882), and cases cited therein.
The tipster who identified himself as James J. Jackson, informed the communications officer that he had overheard a conversation at a pay phone at a gas station with reference to taking a load of drugs to Atlanta. After the arrest of defendant, the tipster called again identifying himself as Ken Kirk, a neighbor of defendant and stating that he had used a false name during the prior call due to fear of defendant and some of his associates. The tipster certainly was not "identified" at the time the state trooper acting on his tip participated in the search of defendant's automobile. The tipster has not appeared and testified, nor is there any evidence that the second name given the communications officer is accurate. Under these circumstances the tipster is virtually anonymous and does not fall within the identified citizen rule as adopted in Tuzman v. State, supra.
Aguilar v. Texas, 378 U. S. 108 (84 SC 1509, 12 LE2d 723) requires that for the establishment of probable cause there must be underlying circumstances from which the officers may conclude that an unknown informant is credible. This requirement is not fulfilled by corroboration of innocent activity unilluminating as to any criminal activity. Spinelli v. United States, 393 U. S. 410 (89 SC 584, 21 LE2d 637). There were no circumstances which served to establish the credibility of the tipster in this case. Therefore, the officers were without probable cause to conduct the search of *871 defendant's automobile. Radowick v. State, 145 Ga. App. 231, 234 (2) (244 SE2d 346).
The state also urges that the marijuana was discovered during a lawful inventory of the contents of the defendant's automobile after it had been impounded due to defendant's arrest on the speeding charge. Routine inventories of vehicles impounded by law enforcement agencies are reasonable searches, not barred by the Fourth Amendment prohibition of unreasonable searches. South Dakota v. Opperman, 428 U. S. 364 (96 SC 3092, 49 LE2d 1000). See also Highland v. State, 144 Ga. App. 594 (241 SE2d 477).
The arresting state trooper testified that the standard procedure when he arrested someone for a traffic violation was to issue the driver a standard citation and offer him the choice of leaving his driver's license with the state trooper in lieu of bond or proceeding to the sheriff's office to make cash bond. In neither case would the offender's automobile be impounded. The state trooper stated unequivocally that he deviated from the normal procedure, retaining defendant in custody and impounding his automobile solely because of the lookout which had been broadcast regarding defendant's automobile. The search of defendant's automobile was clearly pursuant to an investigatory motive and was not a constitutionally reasonable routine inventory search within the meaning of South Dakota v. Opperman, 428 U. S. 364, supra. The arresting state trooper did not first make an arrest, routinely impound the vehicle, and then make the inventory search as was the case in Highland v. State, 144 Ga. App. 594, supra, and Pierce v. State, 134 Ga. App. 14 (213 SE2d 162), but admittedly impounded the vehicle solely to make the search which was illegal and without probable cause.
Judgment reversed. Quillian, P. J., and Webb, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316749/ | 148 S.E.2d 353 (1966)
Amos C. WILSON and Horace England, Members of the Board of Ballot Commissioners of Logan County
v.
The COUNTY COURT OF LOGAN COUNTY, a Public Corporation, et al.
No. 12569.
Supreme Court of Appeals of West Virginia.
Submitted May 3, 1966.
Decision Order May 5, 1966.
Opinion Announced May 24, 1966.
*354 Phillips & Wilson, Robert D. Phillips, Logan, for relators.
Oval D. Damron, Pros. Atty., W. Bernard Smith, Asst. Pros. Atty., Logan, for respondents.
*355 CALHOUN, Judge.
In this proceeding in mandamus, the petitioners, Amos C. Wilson and Horace England, as members of the board of ballot commissioners of Logan County, filed in this Court on April 19, 1966, their petition in which the County Court of Logan County, a public corporation, W. E. Bivens and W. C. Dingess, as commissioners, and Raymond Chafin, as clerk of the county court, were named as respondents.
The prayer of the petition is that a peremptory writ of mandamus be issued to require the County Court of Logan County to reconvene in special meeting and, at such meeting, enter an order "voiding" its prior order of April 5, 1966, by which Logan County was redistricted so as thereafter to be composed of four magisterial districts instead of the three magisterial districts into which the county had theretofore been divided; to require Raymond Chafin, in his capacity as clerk of the county court, to deliver to the petitioners "voting machine labels or other ballots" in his possession which contemplated that the primary election in Logan County thereafter to be held on May 10, 1966, would be on the basis of four rather than three magisterial districts; and further commanding the respondents to attach to the voting machines for the primary election the "voting machine ballot labels certified and ordered by Petitioners," and which were formulated on the basis of three rather than four magisterial districts.
The basic question which was presented for decision in this case was whether the upcoming primary election should be held in Logan County on the basis of three magisterial districts, in accordance with the contention of the petitioners, or on the basis of four magisterial districts, in accordance with the contention of the respondents. A determination of that basic question involved a determination of the validity of the county court's redistricting order of April 5, 1966.
On April 25, 1966, the Court awarded a rule in mandamus returnable on May 3, 1966. On the latter date the case was submitted for decision upon the petition; upon the answer of the respondents to the petition; upon the motion of the petitioners to exclude the answer; upon the demurrer of the petitioners to the answer; and upon briefs and oral arguments of counsel.
On May 5, 1966, the Court entered an order by which the motion to exclude the answer and the demurrer to the answer were severally overruled and by which the Court held and adjudged that the petitioners had not shown a clear legal right to the relief sought by them in their petition and by which the prayer of the petition accordingly was denied. By that order the Court reserved the right later to file a written opinion setting forth its reasons for the decision. This opinion has been prepared and is filed pursuant to the reservation in the order of the right to do so. On the day of the entry of the order by which the Court set forth its decision of the legal questions arising in the case, Judge Browning filed a dissenting opinion in writing in which he set forth the reasons for his disagreement with the Court's decision.
The procedure in this case is unusual in that the dissenting opinion was prepared and filed in advance of the preparation and filing of the majority opinion. Normally a dissenting opinion is in the nature of an expression of disagreement with matters decided and views stated in the majority opinion. In the unique circumstances of this case, the majority opinion necessarily, to some degree, must assume the nature of a reply to views expressed in the dissenting opinion.
In the dissenting opinion, the disagreement of its author has been stated in language which may be appropriately characterized as scathing and harshly denunciatory, rather than moderate and restrained. We of the majority are charged with having stubbornly emphasized Code, 1931, 7-2-2, and with having refused to give any *356 consideration to applicable constitutional provisions and other pertinent statutes. We are charged with having raised "in hauteur" our "august judicial robes;" with having figuratively stepped over "the feuding politicians" of Logan County; and with having acted "pontifically." If we properly comprehend the effect of this spectacular verbiage, it amounts to a charge that we of the majority have assumed an attitude of haughtiness and arrogance; that we have comported ourselves with unbecoming pomposity; and that we have heedlessly flaunted pertinent statutes and constitutional provisions. We are content to rely upon the Court's decision for our vindication.
The dissent seems to imply that this case arises from maneuvering of hostile political factions for personal reasons and for the purpose of avoiding an honest election in Logan County. The opinion states that the people who are responsible for this political maneuvering and consequent flood of litigation constitute a "minute portion" of the citizens and voters and that ninety-nine percent of the sixty-five thousand citizens of Logan County "are law-abiding, patriotic men and women striving constantly to establish better government" and to elect better men and women to political offices. We do not challenge the correctness of these percentages, though it may be that this and other cases recently in court serve to emphasize the disproportionate influence and potency of the one percent and to furnish a basis for a challenge to the ninety-nine percent, including the author of the dissenting opinion, to exert an influence for good in proportion to their numbers in the political and official life of the county.
We regard with indulgence and charity the fact that the author of the dissenting opinion saw fit to direct such harsh language toward his four associates on the Court because, as the dissenting opinion discloses, he is a native son of Logan County. If one stands too close to a mountain, it is impossible for him to view it in its broad outline and expanse. It may conceivably be that we of the majority, who are not natives or residents of Logan County have been able to approach a decision of this case in a more objective way than can be expected of a mere human being who, through the years, has lived so close to the situation which gives rise to the series of court cases of a political or factional nature which have arisen in recent months in Logan County.
The motion to strike the answer is based on the fact that the verification of the answer is dated April 2, 1966. This is an obvious typographical error, because the answer replies in detail to allegations of the petition and the petition was verified on April 16, 1966. It is reasonably apparent that, as a matter of fact, the verification should have been dated May 2, 1966, the day before the case was argued and submitted for decision. We are of the opinion that this irregularity is not of such critical character as to require us to exclude the answer from our consideration, especially without giving the respondents leave to correct the obvious error. This is especially true, we believe, because of the fact that the petitioners demurred to the answer and because of the fact that the case was orally argued before the Court on its merits before the motion to exclude was actually filed. Since this objection was not raised by demurrer, it must be regarded as waived. See State ex rel. Bika v. Ashworth, 128 W.Va. 1, 3, 35 S.E.2d 351, 352; Code, 1931, 56-4-36 and 56-4-65; 71 C.J.S. Pleading Section 564(2), page 1137.
The Rules of Civil Procedure do not apply to proceedings in mandamus. R.C.P. 81(a)(5). The demurrer, therefore, was a proper pleading by which to test the legal sufficiency of the allegations of the answer. Code, 1931, 56-4-36. The demurrer must be treated as having admitted the truth of all matters of fact which were well pleaded in the answer. 6 M.J., Demurrers, Section 28, page 26.
*357 The demurrer charges (1) that all voting precincts in Logan County were abolished by the county court's redistricting order of April 5, 1966, and that no voting precincts were thereafter recreated by the county court in accordance with the provisions of Code, 1931, 3-1-5 and 3-1-7, as amended; (2) that the county court could not by its redistricting order, under the provisions of the statute, recreate election precincts because the redistricting order was entered in less than ninety days before the May 10, 1966, primary election; and (3) that the averments of the answer disclose that respondent Raymond Chafin, in his official position as clerk of the county court, did not comply with the laws pertaining to the printing of official ballots for the reason that the answer admits the ordering and receipt by his office of ballots not certified by the board of ballot commissioners and that he intends to use such allegedly improper ballots in the primary election.
The county court's redistricting order of April 5, 1966, was made and entered pursuant to Code, 1931, 7-2-2, which, subject to omission of part thereof which is not deemed to be material, is as follows:
"Each county shall be laid off by the county court into magisterial districts, not less than three nor more than ten in number, and as nearly equal as may be in territory and population. The districts as they now exist shall remain until changed by the county court. The county court may, from time to time, increase or diminish the number of such districts, and change the boundary lines thereof as necessity may require, in order to conform the same to the provisions of the Constitution of the State.
"Whenever the county court shall deem it advisable to change the boundary line between two or more districts, or to establish a new district out of another or two or more districts, or to consolidate two or more existing districts into one, it may make such change, establishment or consolidation by an order entered of record. * * * But before such districts shall be increased or diminished, or the boundary lines thereof changed, the court shall cause a notice of its intention to do so to be posted on the front door of the courthouse of the county, and at some public place in each district affected thereby, for at least thirty days prior to the term of court at which such action is proposed to be taken."
The statute quoted immediately above grants to county courts, in clear and unqualified language, the power to diminish or to increase the number of magisterial districts and to change the boundary lines of existing districts. The statute does not limit the power of a county court to nonelection years. It does not prohibit a county court from taking action under its provisions within any specified time before a primary or general election. On the contrary, Code, 1931, 3-1-7, as amended, authorizes county courts to "change the boundaries of any precinct within such county, or divide any precinct into two or more precincts, or consolidate two or more precincts into one, or change any place of holding elections;" but the statute provides additionally: "No order effecting such change, division, or consolidation shall be made by the county court within ninety days next preceding an election * * *." There is no similar time limitation upon the power of county courts under the statute which deals with changes of magisterial districts. We must assume that the legislature had a reason for placing a time limitation in one statute and not in the other. It is not for us to question the wisdom or expediency of this difference in the two statutes. We cannot read into the magisterial district statute a time restriction on the power of a county court which was not written into the statute by the legislature.
The magisterial district statute requires a county court to give a prescribed notice "for at least thirty days prior to the term of court at which such action is proposed to be taken." Notice was given by the county *358 court in this instance in conformity with the statutory requirement before the magisterial districts were changed by the county court on April 5, 1966. Nobody appeared before the county court at its meeting held on that date, or at any other time or place, to protest or object in any manner to the entry of the redistricting order. Specifically, neither of these petitioners appeared, no candidate for public office appeared and no member or chairman of any political party executive committee appeared to object to the proposed change or to the timeliness of the proposed change of magisterial districts. The statute contemplates that objections or protests, if any, should have been made on or before April 5, 1966, the date designated for the proposed change of magisterial districts. So far as the record discloses, no objection whatsoever was made at any time, in any manner, by anybody until after the change was made by the entry of the county court's redistricting order. The propriety or legality of the change in magisterial districts is challenged in this proceeding only by the two petitioners as members of the board of ballot commissioners of Logan County. The dissenting opinion assumes to take up the cudgel in behalf of four candidates for justice of the peace. The record does not disclose that they, themselves are dissatisfied with the redistricting. The dissenting opinion assumes also to speak in behalf of the "65,000 citizens of Logan County," asserting that their rights "have been flagrantly violated." None of that vast number of citizens appeared to protest or to object to the entry of the county court's order of April 5, 1966.
It may be true that the county court chose an inappropriate time for redistricting the county in the light of the nearness to the date for holding the May 10 primary election. This Court has held that the action of a county court in changing magisterial districts constitutes performance of a legislative or governmental function, rather than a judicial function. County Court of Mingo County v. Bailey, 97 W.Va. 351, 125 S.E. 253; State ex rel. Collier et al. v. Mingo County Court, 97 W.Va. 615, 125 S.E. 576. It is not for us to question the exercise of the county court's discretion or to impugn the motives of its members. We can appraise the county court's action only from the standpoint of its legality. Section 27, Article VIII of the Constitution of West Virginia requires that each county shall be laid off in magisterial districts not less than three nor more than ten in number, "and as nearly equal as may be in territory and population." It is conceded that, prior to April 5, 1966, there was a gross disparity or inequality in the population of the three magisterial districts and that the redistricting has created four magisterial districts fairly equal in population. Whatever else may be said of the action of the county court in redistricting the county, it is undeniable that the effect has been to conform to the constitutional provision which contemplates, as nearly as may be, equality in population among the several magisterial districts of Logan County. To this extent, at least, it cannot be denied that the county court has acted in obedience to the command of the Constitution.
Logan County has adopted voting machines for use at all voting precincts within the county, pursuant to the provisions of Code, 1931, Chapter 3, Article 4, as amended. Section 10 provides that the ballot commissioners in any county in which voting machines are to be used in any election shall cause to be printed "ballot labels" for use in the voting machines; and that all such ballot labels "shall be delivered to the clerk of the county court at least fifty days prior to the day of the election in which such labels are to be used." Concerning the nature and content of such ballot labels, the same code section provides that the "labels shall contain the name of each candidate and each question to be voted upon and shall be clearly printed or typed in black ink on clear white material of such size as will fit the ballot frames" of the voting machines. Since the primary election *359 was held on May 10, 1966, the ballot labels were required to be delivered by the ballot commissioners at least fifty days prior to that date, or not later than March 21, 1966. On March 21, 1966, and thereafter until the petitioners became ballot commissioners on April 1, 1966. Rush Hall and Ray Samson were ballot commissioners for Logan County. During all that period of time, John R. Browning, as clerk of the circuit court was ex officio a member and chairman of the board of ballot commissioners. See Code, 1931, 3-1-19, as amended.
No meeting of the board of ballot commissioners was called or convened to prepare ballot labels to be delivered to the clerk of the county court, pursuant to the statutory requirement. In these circumstances, according to the answer and its exhibits, on or about March 21, 1966. Glenn R. Jackson, a deputy to the clerk of the county court, went to the office of John R. Browning, and informed him that it was necessary that voting machine labels be prepared and delivered. The two men thereupon checked the records in Browning's office and determined what persons had properly qualified as candidates for the forthcoming primary election. After the two men had conferred from time to time, Jackson typed the ballot labels and on March 22, 1966, forwarded them to Casto & Harris, Inc., printers, at their place of business at Spencer, West Virginia, to be printed. The affidavit of Glenn R. Jackson, which is filed as an exhibit with the answer, alleges that this is the same procedure which has always been used in the preparation of voting machine labels in Logan County and the same procedure used by Browning and Jackson for elections in that county in 1964. It will be noted that, to this point, no action whatsoever had been taken by the board of ballot commissioners in relation to the preparation and delivery of the voting machine labels.
On April 5, 1966, the day the county court entered its redistricting order, Jackson called Casto & Harris, Inc., and directed a change in the printing of the ballot labels to conform to the change from three to four magisterial districts. The printed ballot labels were shipped by Casto & Harris, Inc., and received in the office of the clerk of the county court on April 9, 1966. It is these ballot labels, formulated on the basis of four magisterial districts, which were being placed in the voting machines when this case was decided. Presumably they were used in the voting machines for the May 10, 1966, primary election.
On April 15, 1966, the petitioners, as the new ballot commissioners, delivered to Jackson a "Sample ballot of arrangement on voting machine." This was formulated on the basis of three magisterial districts, though it will be noted that this was ten days after the county court had entered the redistricting order. The board of ballot commissioners, as it was constituted prior to April 1, 1966, did not prepare or deliver to the county clerk's office any ballot labels of any kind or description, though the time required for their preparation and delivery had long since passed when these petitioners became ballot commissioners on April 1, 1966.
In counties in which voting machines are used, a limited number of "printed ballots" are required to be prepared and supplied by the ballot commissioners, in accordance with Code, 1931, 3-5-10, as amended. These printed ballots are used in such counties for absentee voters and for challenged ballots. The statute referred to immediately above provides: "Between the sixtieth and thirtieth days next prior to the date of the primary election, the ballot commissioners of each county shall prepare from the lists and certificates of announcements, as provided in this article, a sample official primary ballot for each party, placing thereon the names of all the candidates of the political party, and, as the case may be, the nonpartisan candidates to be voted for at such primary election." The same section provides for *360 newspaper publication of such sample official primary ballot and that the ballot commissioners shall cause the ballot "to be printed at least thirty days next preceding the date of the election and made ready for delivery to the several precincts along with other election supplies."
The mandamus petition alleges that the petitioners, as ballot commissioners, on April 1, 1966, "certified the Official Ballot" for the primary election and, on the same date, contracted for the printing of such ballots pursuant to Code, 1931, 3-1-21, as amended, which section deals with printed ballots and which has been previously referred to in this opinion. The answer and its exhibits clearly demonstrate the falsity of the allegation that the petitioners on April 1, 1966, contracted for the printing of the "official ballot." The petitioners and John R. Browning, acting as a board of ballot commissioners, directed an undated letter to Roscoe Spence, Logan News, Logan, West Virginia, requesting that he print a specified number of ballots on the basis of three magisterial districts. A certified mail certificate discloses that the letter to Spence was actually mailed on April 7, rather than on April 1.
The petitioners and John R. Browning, as the board of ballot commissioners, directed an undated letter to Casto & Harris, Inc., at Spencer, West Virginia, by which they undertook to countermand the order for voting machine labels based on four magisterial districts and directed that the labels be printed on a three magisterial district basis. Following is a portion of a reply letter from Casto & Harris, Inc., to John R. Browning which discloses that the petitioners did not contract on April 1, 1966, for the printing of ballot labels:
"This acknowledges with thanks your undated certified letter postmarked April 7 about the Logan County ballot labels.
"However, the revised ballot label copy was approved by phone by Mr. Jackson April 5, the labels were printed April 6 and were mailed from here April 8, the same day your letter was received. * *
"We are merely election supply printers and have no legal background. In accepting Mr. Jackson's copy we followed a precedent of 25 years or more and, of course, could not then anticipate your instructions received April 8, after the ballot labels were printed and shipped."
While the petition alleges that the "Official Ballot" was "certified" by the petitioners on April 1, 1966, their first day in office as ballot commissioners, the petition does not allege to whom it was certified. The affidavit of Glenn R. Jackson, filed as an exhibit with and made a part of the answer, states that neither he nor anybody else in the office of the clerk of the county court had in his possession that which petitioners allege to be the "official ballot," prepared on a three magisterial district basis, though affiant stated that he knew that "said document" was being used "by the Circuit Clerk of Logan County for absentee voting * *." As has been stated previously in this opinion, the alleged "official ballot," was not ordered to be printed until April 7, 1966, after the redistricting order was entered by the county court. Nevertheless, the circuit clerk's office continued to send the three magisterial district ballots to absentee voters, irrespective of and apparently in defiance of the county court's redistricting order of April 5, 1966. It clearly appears also that the board of ballot commissioners, by a letter of April 7, 1966, directed the printing of the ballots irrespective of and apparently in defiance of the action of the county court in entering its redistricting order. The board of ballot commissioners had ample opportunity to cause the printed ballots to conform to the redistricting order and also to conform to the ballot labels which had been ordered and printed.
The county court's order of April 5, 1966, states that "the magisterial districts as in effect prior to this date are abolished and hereafter the magisterial districts and their boundaries shall be as follows:". It is asserted by the petitioners that the order "abolished" the three magisterial *361 districts; that the voting precincts were integral parts of the magisterial districts and therefore were also abolished by the county court's order; and that the voting precincts could not at that time be recreated or reestablished because of the fact that Code, 1931, 3-1-7, as amended, provides that no order changing the boundaries of any precinct, or dividing a precinct into two or more precincts, or consolidating two or more precincts into one, or changing any place of holding elections "shall be made by the county court within ninety days next preceding an election * * *." We do not believe this contention is sound. It apparently assumes that the effect of the county court's order was to cause a hiatus and that there resulted a period of time, however brief, during which there were no magisterial districts or election precincts in Logan County. The choice of language in the order may have been unwise or inappropriate, but, as a matter of fact, the county court has no right or power to enter an order which would completely abolish all magisterial districts and all voting precincts in the county. The order states that the action of the county court was being taken pursuant to and in accordance with the provisions of Article VIII, Section 27 of the Constitution of West Virginia, and Code, 1931, 7-2-2. Both the statute and the constitutional provision contain a mandatory requirement that each county shall be laid off into magisterial districts. The county court is bound by that mandatory requirement and has no power to abolish all magisterial districts and leave the county for any period of time without any such districts. The obvious purpose and effect of the county court's order were merely to redistrict the county.
Prior to the entry of the county court's redistricting order, Logan County had three magisterial districts as follows: Chapmanville with ten precincts; Triadelphia with thirteen precincts and Logan with forty precincts. As a result of the redistricting the four magisterial districts are as follows: Guyan with nineteen precincts; Triadelphia with thirteen precincts; Logan with thirteen precincts; and Island Creek with eighteen precincts. The voting precincts, as a consequence of the redistricting, were not changed in respect to their total number, their locations or their boundaries. Voters vote at the same precincts and at the same locations as before.
The voting machine labels list the same candidates for office as are listed on the paper ballots. The redistricting did not disfranchise a single voter or result in denial of anybody's right to be a candidate in the May 10, 1966, primary election. The only material difference between the voting machine labels and the printed ballots is that the former were formulated on the basis of four magisterial districts and the latter were formulated on the basis of three magisterial districts. The basic function of a board of ballot commissioners is to determine and properly certify the names of persons who have qualified to be candidates. Concerning that matter, there is no controversy. As we have observed previously, the candidates are the same on the voting machine labels and on the printed ballots.
The dissenting opinion lists eleven constitutional provisions and states that the action of the county court is violative of each of them. At that point the dissenting opinion is lacking in specificity. It does not state precisely how these constitutional provisions have been violated. We have, nevertheless, carefully considered each of the eleven constitutional provisions. We are of the opinion that the action of the county court in redistricting the county is not violative of any constitutional provision.
The action of the county court in redistricting the county was lawful. The board of ballot commissioners has no power or authority to override the county court's action in this respect. The board of ballot commissioners had the right and power to formulate a proper paper ballot and to have it printed for use in the *362 primary election, but it had no lawful right or authority to formulate such a ballot on the basis of three magisterial districts for the primary election to be held in a county having four magisterial districts. The ballot formulated and printed on the basis of three magisterial districts in a four-district county was not a proper ballot. The petitioners, therefore, have not shown a clear legal right to the relief sought by them in this case.
For reasons stated in this opinion, the Court entered its order on May 5, 1966, by which the motion to exclude the answer and the demurrer to the answer were overruled and by which a peremptory writ in mandamus was denied.
Writ denied.
BROWNING, Judge (dissenting).
I dissent. Deferentially and respectfully, but with a feeling of judicial shock, do I find myself again in disagreement with the majority of this Court upon the principal issues which have been before this Court on three or four occasions arising out of the magisterial redistricting of Logan County by the county court in a two to one decision. This Court by a vote of three to one, Judge Calhoun being absent and the writer disagreeing with the majority, refused on the 31st day of March, 1966, to grant a temporary injunction and refer the case to the Judge of the Circuit Court of Logan County for the taking of evidence and a decision as to the validity of the action of the county court in redistricting the county at the time when such action was taken. It is my opinion that we would have avoided not only the confusion we are now facing but much confusion following the primary election by not taking that palpably erroneous position. It is not often that a court gets an opportunity so soon to right a wrong that it has committed. This Court has that second chance in this proceeding. The majority stubbornly and persistently points its finger to Chapter 7, Article 2, Section 2, of the Code, as amended, which gives a county court the power to redistrict a county and refuses to look to any other applicable statutory or constitutional provision with the same result that the blind man obtained when he clung only to the trunk of the elephant and refused to admit that it had any other parts. Code, 3-1-21, as amended, and 3-4-10, as amended, respectively, unequivocally give the board of ballot commissioners of Logan County the power to compose an official ballot, and ballot labels for use in voting machines, for the primary election to be held next Tuesday. The county court and its clerk, both respondents, have refused to accept that ballot and have prepared ballots or ballot labels of their own without any authority to do so and this Court supinely refuses to interfere. The ballot commissioners are required to prepare such official ballot or ballot labels subsequent to the last day for filing by candidates for office and that is a mandatory duty with which they can be forced to comply. They have done so without any mandatory action by this or any other court. They have no authority to prepare an official ballot for the primary election of Logan County which shows more than three magisterial districts therein because as of the date that this ballot must be prepared there were only three magisterial districts in Logan County. Thus, if we went no further, it is obvious that the action of the county court is invalid. Even though they have the power to redistrict they do not have the power to do so in violation of the electoral statutes and their action in so doing is also in violation of the following provisions of the constitution of this state and of the United States: Article III, Sections 3, 10 and 17; Article IV, Sections 1, 2 and 11; Article VIII, Section 27; and, Article IX, Section 2, W.Va.Const.; the 14th, 15th and 19th Amendments to the Const. of the U. S. These constitutional provisions generally are directed to the conduct of free and orderly elections and the enfranchisement of the citizens of the state and specifically to the election of justices of the peace and constables in each magisterial district. The *363 action of the county court in redistricting thirty-five days previous to the primary election has thus rendered these mandatory constitutional provisions impossible of accomplishment.
For at least one other reason the action of the county court is in violation of several of the above constitutional provisions. That order "abolished" the three existing magisterial districts of Logan County and then purported to create four new districts. As final proof that that is true they changed the name of the district formerly known as Chapmanville and renamed it Guyan District. If it had not been a new district the name could not have been changed without the order so providing in accordance with the pertinent section of the code. Voting precincts are integral parts of magisterial districts and cannot exist otherwise. Code, 3-1-5, as amended, provides:
"The precinct shall be the basic territorial election unit. The county court shall divide each magisterial district of the county into election precincts, shall number the precincts, shall determine and establish the boundaries thereof, and shall designate one voting place in each precinct, which place shall be established as nearly as possible at the point most convenient for the voters of the precinct. Each magisterial district shall contain at least one voting precinct and each precinct shall have but one voting place therein. * * *" (Italics supplied.)
Code, 3-1-7, as amended, then provides that, subject to the foregoing, a county court may divide, consolidate or change the boundaries of a precinct as the public convenience may require, but that "No order effecting such change, division, or consolidation shall be made by the county court within ninety days next preceding an election * * *." When the county court abolished the three magisterial districts of Logan County on the 5th day of April, 1966, they also abolished all of the voting precincts in those three magisterial districts. While the order which is a part of the record in this case shows that the county court attempted to create four new magisterial districts, it created not one voting precinct in either of the four new magisterial districts and no one, including this Court, can create a voting precinct other than the members of the county court of a county. Therefore, if this Court permits this election to be held in Logan County on the 10th of May it is very likely that we will have to hold after the election that there were no voting precincts in Logan County on Tuesday, May 10, 1966, and therefore no valid election was held therein.
The solution to this dilemma is obvious and this is it: Grant the prayer of the petition of the ballot commissioners and direct the respondents to remove from the voting machines of Logan County the invalid ballots and/or labels which the respondents illegally adopted and require them to place instead upon the voting machines the only official ballot in existencethe one adopted by the ballot commissionersand no question can thereafter arise as to the validity of the May 10th primary election. It is true that in order to do that this Court will have to find that the action of the County Court of Logan County of April 5, 1966, was invalid because of its interpretation and application of the pertinent statutory provisions at the time and under the circumstances when the court acted. The statutes are clear that: candidates for public office in this state in a primary election must file on or before the first Saturday of February next preceding an election and many candidates did file as of that date, including four candidates for nomination for the office of justice of the peace of Chapmanville District. The record shows that five hundred or more absentee voters in Vietnam and other places have exercised their right to cast ballots and, as provided by the law, they have voted them upon the only official ballot that exists in Logan County, the one adopted by the ballot commissioners. Certainly the absentee voters who reside in the ten precincts that were illegally *364 taken from Logan District and added to what was then Chapmanville District will have no opportunity to vote for candidates for district offices because those candidates do not appear upon the ballot inasmuch as they were not a part of Chapmanville District at the time the official ballot was printed.
While the majority might have, from their viewpoint, justified their refusal of the temporary injunction prior to the invalid act of the respondents on April 5, 1966, on the ground that viewed prospectively it might be assumed that respondents in that proceeding would not perform an unconstitutional act, there is no such presumption permissible in this proceeding. The respondents now have performed the illegal act and the record shows such for all men to see.
It is true, of course, that when an administrative body has the unequivocal power under a valid statute to perform an act the motives of its members, however improper or corrupt they may be, are not controlling. However, the rights of a large portion, almost all, of the 65,000 citizens of Logan County have been flagrantly violated and it is to them, not primarily the members of the two political factions, that this Court owes a paramount obligation to perform its constitutional duties. Its members should not raise in hauteur their august judicial robes, figuratively step over the feuding politicians pontifically murmuring "a curse upon both of your houses" or "stew in your own juices," and after the election we will try to determine in future proceedings who was nominated or elected.
If my brethren are of the opinion that the purpose of the maneuvering and litigation by the political factions was not to secure an honest election in Logan County but for reasons personal to themselves, I am completely in agreement with them. But these factions compose only a minute portion of the citizens and voters of Logan County. Ninety-nine per cent of the people of Logan County are not professional politicians. On the contrary, they are law-abiding, patriotic men and women striving constantly to establish better government in that county by electing better men and women to political offices. If they are completely confused as to why this Court refuses them relief I, who unofficially am one of them, join in their perplexity. The power given to a county court to redistrict by Code, 7-2-2, as amended, is not unlimited but must be exercised so as to conform to the constitutional provisions hereinbefore quoted and in harmony with existing statutory law.
For the reasons stated I would grant the prayer of the petition, direct the respondents to use the official ballot, place the same upon the voting machines, and find that the action of the county court in attempting to redistrict Logan County thirty-five days previous to an election was invalid and of no effect. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316778/ | 113 Ga. App. 324 (1966)
148 S.E.2d 52
GOWEN
v.
BELL et al.
41815.
Court of Appeals of Georgia.
Argued February 8, 1966.
Decided March 16, 1966.
Leon A. Wilson, II, for appellant.
Carroll Russell, Francis Houston, Harold Guinn, for appellee.
HALL, Judge.
The plaintiff in this garnishment action appeals from a judgment granting the garnishee's motion to quash the summons of garnishment. The plaintiff's affidavit and bond for garnishment were made and the summons issued and served on the garnishee on July 18, 1965, citing the garnishee to appear and answer on the first Monday in October 1965. *325 On the appearance day directed by the summons the garnishee filed his motion to quash, on the ground that the summons was defective, not amendable, and void because the law (Ga. L. 1962, pp. 717, 718; Code Ann. § 46-105) provides that when affidavit and bond for garnishment are given it shall be the duty of the authorized officer to issue a summons "directed to the garnishee and requiring him to appear . . . not sooner than 30 days and not later than 45 days of the service of such summons. . ."
"No technical or formal objections shall invalidate any process; but if the same shall substantially conform to the requisites of this Code, and the defendant has had notice of the pendency of the cause, all other objections shall be disregarded: Provided, a legal cause of action as required by this Code is set forth." Code § 81-220.
"A summons of garnishment is the process that brings the garnishee into court, and in this respect is like process in an ordinary suit, its purpose being to give notice to the garnishee of the plaintiff's claim upon the defendant's property in the garnishee's possession or upon the garnishee's indebtedness to the defendant." Gainesville Feed &c. Co. v. Waters, 87 Ga. App. 354, 356 (73 SE2d 771).
In Hearn v. Adamson, 64 Ga. 608, the Supreme Court held that it was proper to grant a default judgment against a garnishee who attempted to answer a summons of garnishment after the expiration of time provided by law. Though the summons may have been misleading in calling upon the garnishee to answer at the next term of court, the court stated, "When the garnishee was served with the summons, the law made it his duty to answer it within ten days from the date of such service, and it was not necessary to state in the summons that he should answer within ten days. The mandate of the law was sufficient for that purpose, of which he was bound to take notice, and be governed by it."
In the present case the time provided by law for answering the summons of garnishment had expired when the garnishee filed his motion to quash. Ga. L. 1962, pp. 717, 718 (Code Ann. § 46-105). The trial court erred in granting the motion. Hearn v. Adamson, 64 Ga. 608, supra; Williams v. Buchanan & Bro., 75 Ga. 789; Williford v. Marshall, 175 Ga. 683 (165 S.E. 588). Cf. Welch v. Singleton, 95 Ga. 519 (20 S.E. 496); Mutual Benefit Health &c. Assn. v. White, 48 Ga. App. 146 (172 SE *326 92); Progressive Finance Co. v. Longleaf Lumber Co., 108 Ga. App. 555 (134 SE2d 63).
Judgment reversed. Nichols, P. J., and Deen, J. concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316781/ | 113 Ga. App. 475 (1966)
148 S.E.2d 470
UNDERCOFLER, Commissioner
v.
BROSNAN (two cases).
41777, 41778.
Court of Appeals of Georgia.
Argued February 9, 1966.
Decided April 6, 1966.
Arthur K. Bolton, Attorney General, John A. Blackmon, Assistant Attorney General, for appellant.
Fred E. Bartlett, Jr., Smith, Gardner, Kelley & Wiggins, for appellee.
BELL, Presiding Judge.
This is the second appearance of the same cases in this court. See Brosnan v. Undercofler, 111 Ga. App. 95 (140 SE2d 517). The State Revenue Commissioner filed affidavits in garnishment to collect a deficiency assessment of income taxes upon which executions had issued. Taxpayers filed dissolution bonds and traverses to the garnishee's answers, denying liability for the deficiencies assessed by the Commissioner. This court affirmed the judgments of of the trial court sustaining the Commissioner's general demurrers to taxpayers' pleadings. After the decision of this court was rendered in the former appearance of the cases, taxpayers filed motions to dismiss the garnishments, alleging that the Commissioner had failed to comply with provisions of Code § 92-7501. Held:
As garnishment proceedings are purely statutory they cannot be extended to cases not enumerated in the statutes, and the courts have no power to enlarge the remedy or hold under it property not made subject to the process. Few v. Pou, 32 Ga. App. 620, 625 (124 S.E. 372); Arnold v. Citizens &c. Nat. Bank, 47 Ga. App. 254 (3) (170 S.E. 316); Redwine v. Morgan, 88 Ga. App. 625, 628 (77 SE2d 330).
"Summons of garnishment can in this State issue in but three classes of cases: (1) where there is a suit pending (Code §§ 8-501, 46-101) . . . (2) where a judgment has been rendered by a court having jurisdiction (Code § 46-101) . . . and (3) where a tax collector has issued an execution, has it in his hands, and, being unable to find any property of the defendant, makes an entry of nulla bona thereon (Code § 92-7501). . . To entitle the plaintiff to the benefit he claims, he must show that his case is one clearly contemplated by the statute. . ." Davis v. Millen, 111 Ga. 451, 452 (36 *476 SE 803); Weston v. Beverly & McCollum, 10 Ga. App. 261, 262 (73 S.E. 404).
The garnishments in question are not provided for in the first and second classes of cases. In the third class of cases authority for issuance of process of garnishment is conditional upon the entry of nulla bona upon the tax execution. Code § 92-7501. Since the affidavits in garnishment and the attached copies of the executions here failed to show this jurisdictional fact and since it was not shown by amendment duly offered (see Stovall & Brother v. Joiner, 10 Ga. App. 204 (73 S.E. 22)), it appears that the trial court was without jurisdiction of the subject matter of this litigation. As stated in Davis v. Millen, 111 Ga. 451, 452, supra, "Process of garnishment issued in any other case or upon any other ground [than those enumerated] is without authority of law, and a judgment based upon it is binding upon no one."
The trial court did not err in dismissing these garnishment proceedings.
Judgment affirmed. Jordan and Eberhardt, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316468/ | 253 S.E.2d 359 (1979)
40 N.C. App. 605
GODLEY CONSTRUCTION CO., INC.
v.
L. Bruce McDANIEL and Sheldon L. Fogel d/b/a McDaniel and Fogel, attorneys at Law.
No. 7826SC581.
Court of Appeals of North Carolina.
April 3, 1979.
*360 Bailey, Brackett & Brackett, P. A. by Martin L. Brackett, Jr., Charlotte, for plaintiff-appellee.
Boyce, Mitchell, Burns & Smith by Robert E. Smith, Raleigh, for defendants-appellants.
MITCHELL, Judge.
The defendants assign as error the trial court's denial of their motion for a change of venue to promote the convenience of witnesses and the ends of justice and contend that it constituted an abuse of discretion. The defendants made their motion for change of venue pursuant to G.S. 1-83(2) after they had filed their answer. Unlike motions for change of venue based upon allegations of improper venue, which must be made a part of the answer or filed as separate motions prior to answering, motions for change of venue made pursuant to G.S. 1-83(2) are properly made only after an answer has been filed. Compare Thompson *361 v. Horrell, 272 N.C. 503, 158 S.E.2d 633 (1968), with, Swift and Co. v. Dan-Cleve Corp., 26 N.C.App. 494, 216 S.E.2d 464 (1975). As the defendants had filed their answer in the present case prior to making their motion for change of venue pursuant to G.S. 1-83(2), the trial court had authority to entertain the motion. Poteat v. Railway Co., 33 N.C.App. 220, 234 S.E.2d 447 (1977).
The defendants' motion for change of venue pursuant to G.S. 1-83(2) to promote the convenience of witnesses and the ends of justice presented a question of venue and not jurisdiction. Rulings on such questions are within the sound discretion of the trial court and are not subject to reversal except for manifest abuse of such discretion. Cooperative Exchange v. Trull, 255 N.C. 202, 120 S.E.2d 438 (1961).
The defendants contend that the ruling of the trial court constituted a manifest abuse of discretion, as their affidavits presented overwhelming evidence clearly indicating that both the convenience of the witnesses and the ends of justice would be promoted by a change of venue to Wake County. The defendants further contend that their affidavits made out a prima facie showing that these interests would be promoted and shifted the burden to the plaintiff to go forward with evidence to the contrary. The plaintiff having introduced no affidavits or other evidence tending to contradict the affidavits of the defendants, the defendants argue that the trial court was compelled to find that both the convenience of witnesses and the ends of justice would be promoted by the requested change of venue. We do not agree.
We find that the rule which has been long followed in this jurisdiction still prevails and that the trial court in ruling upon a motion for change of venue is entirely free to either believe or disbelieve affidavits such as those filed by the defendants without regard to whether they have been controverted by evidence introduced by the opposing party. See State v. Smarr, 121 N.C. 669, 28 S.E. 549 (1897). But see, e. g., Harper v. Insurance Co., 244 S.C. 282, 136 S.E.2d 711 (1964). Further, we do not think the defendants' affidavits showing that one witness and one party reside in Mecklenburg County, while the other parties and witnesses reside in Wake County, necessarily required a finding that a change of venue in the present case would promote the convenience of witnesses and the ends of justice. Even if the affidavits should be construed in the manner the defendants wish, we would remain unable to determine whether other facts brought to the court's attention or otherwise available indicated that the hardship to the witness and the party residing in Mecklenburg County arising from a change of venue would outweigh any hardship to the defendants and the witnesses from Wake County arising from denial of the change of venue.
Additionally, had the trial court been compelled to accept as fact all of the matters asserted in the defendants' affidavits and to find that the convenience of witnesses and the ends of justice would be promoted by a change of venue, we do not think it would have been required to order a change of venue. In our view, when the trial court finds that the convenience of witnesses and the ends of justice would be promoted by a change of venue, G.S. 1-83(2) permits but does not require the trial court in its discretion to order such change of venue. See Craven v. Munger, 170 N.C. 424, 87 S.E. 216 (1915). The long-standing rule in this jurisdiction remains undiminished and, in such situations, the trial court's decision to deny the motion for change of venue in its discretion still may be reversed only upon a showing of a manifest abuse of such discretion. Cooperative Exchange v. Trull, 255 N.C. 202, 120 S.E.2d 438 (1961). The existing case precedent tends to indicate that the trial court has not manifestly abused its discretion in refusing to change the venue for trial of an action pursuant to G.S. 1-83(2) unless it appears from the matters and things in evidence before the trial court that the ends of justice will not merely be promoted by, but in addition demand, the change of venue (G.S. 1-85) or that failure to grant the change of venue will deny the movant a fair trial (G.S. 1-84).
*362 It may well be that the prevailing rules applying to motions for change of venue, as previously set forth herein, are not the best which could be devised. See generally, e. g., Annot., 74 A.L.R. 2d 16 (1960). Nevertheless, we believe them to apply in this jurisdiction. The fact that our research does not readily lead to any case in which a trial court in this jurisdiction ever has been reversed in the exercise of the discretion conferred upon it by G.S. 1-83(2) tends to offer additional support to the view that the former rules remain unchanged. Unlike the Supreme Court of North Carolina and the General Assembly of North Carolina, we are never free to alter or reject rules which have been established in cases previously decided by the supreme judicial authority of this State.
The order of the trial court denying the defendant's motion for change of venue is
Affirmed.
ROBERT M. MARTIN and WEBB, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316649/ | 207 Va. 260 (1966)
PERCY ELMO LAWYER
v.
ELDA LENA LAWYER.
Record No. 6171.
Supreme Court of Virginia.
June 13, 1966.
A. Simpson Williams, Jr. (Keith, Williams & Daniel, on brief), for the appellant.
Present, Eggleston, C.J., and Spratley, Snead, I'Anson, Carrico and Gordon,
In November of 1962, after retirement from service in the army, Percy Lawyer came to Richmond with his wife, having decided to live there. They stayed with his aunt and had free use of the first floor of her house, but slept in a habitable room in the basement. After several months Lawyer found a job, the modest pay from which and his small pension constituted his only resource. Mrs. Lawyer demanded they move, and they looked at many houses; but she would not agree to any he could afford and would not contribute to purchase of the type she wanted, though she was working and had some stock. She left the aunt's home and took separate quarters, saying she would not return. Her testimony as to abuse by her husband was vague and lacked any corroboration. On these facts it was error to grant the wife a divorce on the ground of cruelty and constructive desertion. She had deserted her husband and he was entitled to the divorce he sought on that ground.
Appeal from a decree of the Law and Equity Court of the city of Richmond. Hon. John Hicks Rives, Jr., judge presiding. The opinion states the case.
No brief or argument for the appellee.
SPRATLEY
SPRATLEY, J., delivered the opinion of the court.
This cause was instituted on April 8, 1963, by Percy Elmo Lawyer, appellant, against his wife, Elda Lena Lawyer, appellee, for a divorce a mensa et thoro
on the grounds of wilful desertion and abandonment. Mrs. Lawyer filed an answer and cross-bill, in which she denied desertion of her husband, and, in turn, charged him with *261 "cruelty and constructive desertion." She prayed that a divorce a mensa et thoro be granted her, and that her husband be required to provide her alimony and counsel fees. Lawyer answered the cross-bill, denying all allegations of cruelty and desertion.
On May 8, 1963, the trial court ordered Lawyer to pay $18.50 each week to his wife for her support and maintenance, the sum of $125.00 on account of fees for her counsel and $25.00 for costs of court.
Thereafter, on April 28, 1964, on evidence taken by depositions, the court dismissed complainant's bill and granted Mrs. Lawyer a divorce from bed and board on the ground that her husband was "guilty of cruelty and acts which constituted constructive desertion." It then ordered Lawyer to continue to pay $18.50 each week to Mrs. Lawyer, and the further sum of $300.00 to her counsel.
On appeal, Lawyer contends that the court erred in each of its findings and orders. Mrs. Lawyer assigns no cross-error, and has filed no brief in opposition.
The parties were married on August 26, 1955, in Boston, Massachusetts. At that time, Lawyer was a member of the armed forces of this country. He was 47 years of age, and had been married twice previously, both marriages being ended by divorce. Mrs. Lawyer was a widow, 48 years of age, with two sons, 25 and 28 years of age, born of her first marriage. No children were born of the marriage here involved. After their marriage in Massachusetts, Lawyer remained in the Army until the latter part of 1962. The couple lived in several places where Lawyer was stationed as a soldier, including the State of New York and the country of Japan, in which country they lived for about three years.
Prior to Lawyer's discharge from military service, he and his wife had planned to live in Richmond, Virginia. In the summer of 1962, Lawyer and his wife came to Richmond, visited Mrs. Alice K. Pangola, aunt of Lawyer, in her home on Laburnum Avenue, and occupied a bedroom in the basement of the Pangola home for approximately a week. After his discharge from the Army, the couple came again to Richmond, on or about November 1, 1962. Under an agreement with Mrs. Pangola, they took up their residence in the bedroom in the basement of the Pangola home, the same room which they had occupied in the previous summer. They were granted the full use of the first floor facilities of the house, including the kitchen, the dining room, the living room, and a bathroom. The *262 basement bedroom is separately enclosed, has a wooden flooring, a window above the ground level, electric lights, and heat from an oil furnace located near the bedroom enclosure. It was furnished with a double bed, a table, several chairs, and the usual furniture for a bedroom. In the basement there is a toilet with a sink, a commode, and bath shower near the bedroom.
It was understood that the Lawyers would occupy the above quarters until Lawyer could find employment in Richmond, and obtain funds to rent or buy a home for himself and wife.
Mrs. Lawyer obtained employment as a sales clerk two days after arrival in Richmond with a "take-home pay" of about $32.00 each week. She also received a quarterly dividend of about $30.00 from a utility company on stock valued by her as worth $1,900.00.
Lawyer was successful in obtaining employment about the first of February, 1963, as a dispatcher for the Public Utility Department of the City of Richmond. His "take-home pay" was $200.00 per month; and, in addition, he received $139.12 monthly pension for his military service. He had no other financial resource. Out of his income he purchased some of the food consumed by Mrs. Pangola, his wife and himself; and, in addition, paid the bills for the utilities servicing the house.
Mrs. Lawyer prepared her husband's breakfast each morning, and Mrs. Pangola prepared their dinner in the evening. Mrs. Lawyer bore no portion of the family expenses, nor did she assist Mrs. Pangola in the latter's daily household chores.
Mrs. Lawyer soon became dissatisfied, and repeatedly told Lawyer that he should find a job that paid him a larger salary, so that they could obtain better living accommodations. During their discussions. they often became heated and angry. However, they investigated and inspected twenty or thirty houses listed for rent or sale; but were unable to find one that satisfied the desire of each and was priced at an amount they could pay.
On March 25, 1963, Lawyer found a house for sale at $9,250.00, which he planned to purchase with the aid of a loan from the Veterans Administration. A real estate agent brought a proposed contract of sale to the Pangola home to secure the signatures of Mr. and Mrs. Lawyer. Mrs. Lawyer refused to sign the contract, protesting that the property was not worth the amount charged for it.
Lawyer testified that: "Her primary objection seems to be that it is not high-class enough. She said she wanted a three-bedroom *263 brick ranch with a basement. If she didn't have that, she was not going to have anything else. I couldn't afford it. I did tell her that if she sold her stock and put it on the house, we could buy such a house. She refused."
The next night, March 26, Mrs. Lawyer told her husband that she was leaving and would not be back. He pleaded with her to stay, saying that he had taken out an insurance policy at a cost of $20.00 per month which guaranteed her an income as long as she remained his wife. Nevertheless, Mrs. Lawyer rented a room in another part of the city, and on March 27, 1963, she moved from the Pangola home, again saying that she would not return.
For some weeks prior to her removal from the Pangola home, Mrs. Lawyer slept at night, on the first floor of the residence, either on a sofa bed in the living room, or on a single bed, in the bedroom occupied by Mrs. Pangola. Lawyer says she did this over his protest.
Mrs. Pangola testified that the basement room was closed off, amply furnished, clean and dry, and had been occupied by some of her relatives and others for several years without complaint; that Lawyer and his wife frequently had "arguments" about his failure to obtain a better job; that she got along "fairly well" with Mrs. Lawyer and wanted the latter and her nephew "to stick together;" that she had never seen Lawyer strike his wife, nor commit any act which would "be considered abuse of her;" and that the couple spent most of the time that they were living in her home "upstairs in the kitchen or the dining room, but were supposed to sleep in the basement." She said that Mrs. Lawyer had frequently stated, in the latter portion of her stay in the home, that she was going to leave, and on March 27, 1963, she did leave.
Mrs. Lawyer testified that her husband cursed and abused her almost daily, and because of this abuse and inadequate living accommodations, she left him. Her testimony was in vague and general terms, except as to one incident, when she said he pushed her against a wall and struck her. There was no corroborating evidence of the incident, the only specific occasion recalled by Mrs. Lawyer, and it was flatly denied by her husband. (Virginia Code, 1950, | 20-99, 1960 Repl. Vol.)
Mrs. Lawyer admitted that she was "never in fear of being injured." She did not complain of any interference in her affairs by Mrs. Pangola. She admitted that she never made any financial contribution to the running of the household, and that she was not *264 willing to use any part of her money towards the purchase of a home.
The conduct of Mrs. Lawyer, her renting of a room in another house, her departure from the Pangola home, her parting words to her husband, and her failure to heed his pleas, plainly show that she voluntarily and wilfully deserted and abandoned him with the intention to break off their marital relations.
It is true that it was the duty of the husband to provide his wife with a home with the comforts and necessities of life within his means, and the record shows that the husband endeavored to comply with that duty. Mrs. Lawyer has shown no legal justification for the desertion of her husband, and no good excuse for her failure to return to him. She is, therefore, not entitled to a divorce.
The evidence and circumstances stated establish the right of the husband to a divorce. The refusal to grant him a divorce a mensa et thoro was erroneous. Consequently, the court erred in requiring him to provide funds for the maintenance and support of Mrs. Lawyer. Mullen Mullen, 188 Va. 259, 275, 49 S.E.2d 349; Stolfi Stolfi, 203 Va. 696, 702, 126 S.E.2d 923.
We have repeatedly held that one spouse is not justified in leaving the other, unless the conduct of the other is sufficient to establish the foundation of judicial proceeding for a divorce. Hendry Hendry, 172 Va. 368, 374, 1 S.E.2d 340; Kerr Kerr, 182 Va. 731, 735, 30 S.E.2d 684; Edwards Cuthbert, 184 Va. 502, 507, 36 S.E.2d 1; William Williams,
188 Va. 543, 550, 50 S.E.2d 277; Stolfi Stolfi, supra, 203 Va., page 701.
For the reasons stated, we reverse and vacate the trial court's decree of April 28, 1964. A decree of divorce a mensa et thoro is hereby awarded Percy Elmo Lawyer; and the case is remanded to the trial court for further hearing and decision on the question of a divorce a vinculo should proper proceedings and evidence be produced.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316632/ | 222 Ga. 70 (1966)
148 S.E.2d 382
COOK
v.
SHEATS.
23383.
Supreme Court of Georgia.
Argued March 15, 1966.
Decided April 7, 1966.
Rehearing Denied April 19, 1966.
Tom Dillon, for appellant.
Sheats, Parker & Webb, John Tye Ferguson, Webb, Parker & Ferguson, for appellant.
CooK, Justice.
Harold Sheats, as executor of the will of DeForest King, also known as D. King and John May, sought *71 to probate the will in solemn form in the Court of Ordinary of Fulton County. The testator died a resident of the State of California but owned real property in Fulton County. Robert N. Cook filed a caveat to the will, which was overruled by the ordinary of Fulton County. On appeal to the Superior Court of Fulton County, the trial judge directed a verdict for the propounder, and the appeal in this court is from that judgment.
The enumeration of errors asserts that the trial judge erred in directing a verdict for the propounder because there was evidence of general insanity and monomania of the testator. It is further asserted that it was error to exclude evidence as to how the property devised in the will came into the ownership and possession of the testator.
1. The propounder has filed a motion in this court to dismiss the appeal on the ground that the issues are moot because the will of the decedent has been admitted to probate in the State of California. The judgment of the Superior Court of Fulton County was entered on October 13, 1965. The will was admitted to probate in the State of California on November 29, 1965. The caveator in response to the propounder's motion to dismiss has shown that a petition has been filed in the State of California to revoke the probate of the will of that State.
The will was not offered for probate in this State on an exemplification of the probate proceedings in California under Ga. L. 1959, pp. 136, 138 (Code Ann. § 113-703), but was offered in the same manner as wills of residents of this State under Code 113-702. Since it appears that the probate in California was subsequent to the judgment of the Superior Court of Fulton County, and that the issue as to testamentary capacity has not been decided in the State of California, the order of probate in California would not render the present case moot. The motion to dismiss is denied.
2. The will of D. King, which was executed on July 28, 1953, devised and bequeathed all of his property, after the payment of debts, to the United Daughters of the Confederacy. There was ample evidence for the propounder by the subscribing witnesses and others to authorize a finding that the testator was mentally competent to make a will. It is unnecessary to narrate *72 any of this testimony since the question for decision by this court is whether there was any evidence requiring the submission to the jury of the question of mental competency of the testator.
Charles Millard Pitts, a former tenant of the testator, testified that he moved onto the testator's property in 1952 or 1953. He related that: He had seen the testator three of four different times, while the witness was talking to him on some serious matter, stop the conversation, commence jumping up and down, clapping his hands together, and laughing as if something were amusing. The testator put a cable across the driveway of his property on which the witness lived, and gave the witness orders not to allow anyone to come on the property even for business purposes. He would not permit the witness to cut the grass and weeds, and said that he wanted the place to grow up and look like a jungle. He stored new and unused tools of a value of three or four hundred dollars and a new refrigerator in a locked room of the house rented by the witness, and never used them from the date of 1952 or 1953 until his death.
Robert N. Cook, the caveator, testified that on the morning of the date the will was executed the testator, who was a cousin of the witness, was staying at his home; and the testator called the witness into his bedroom and asked the witness whether he saw anybody out in the filed, stating that he knew that gangsters out of Chicago were "after him." This witness testified further: The testator frequently stayed at his home, and several times the testator made the statement that gangsters from Chicago were "after him," and would ask the witness to come and look out the window. The witness had never known of any gangsters from Chicago pursuing the testator, and he would tell the testator "to go and sit down, forget it." The testator always slept with a camera in his bed. At one time in 1953 or 1954 the testator had a fox at his farmhouse, tied to his bed, and the fox slept on the bed. Before and after the date of July 28, 1953, he had observed the testator on numerous occasions suddenly break out in laughter during a serious conversation, and start clapping his hands and stamping his feet. Based on the facts to which he had testified, the witness was of the opinion that the testator was insane.
*73 Dr. Winston Burdine, a practicing psychiatrist, testified on hypothetical questions that if a person behaved in the manner shown by the testimony of these witnesses, in his opinion the person would be psychotic or insane.
A trial judge can not properly direct a verdict because the evidence preponderates to one side rather than the other. Code § 110-104; Northwestern University v. Crisp, 211 Ga. 636, 647 (88 SE2d 26). There was evidence in the present case on the question of insanity of the testator which raised an issue of fact as to his testamentary capacity. Thompson v. Mitchell, 192 Ga. 750 (16 SE2d 540). This issue should have been submitted to the jury, and it was error to direct a verdict for the propounder.
3. It is asserted in the enumeration of errors that the evidence made an issue of fact as to whether the testator had monomania, in that he believed that he had no relatives except the caveator, whereas he had a number of cousins. While there was testimony by two witnesses that the testator refused to recognize any of his cousins as relatives except the caveator, and spoke disparagingly of him, it is evident from the entire testimony of these witnesses that the testator was alienated from his other cousins and refused to associate with them, and not that he did not know that they existed. The trial judge did not err in failing to submit to the jury any question as to whether the testator was mistaken as to the existence of some of his relatives.
4. The caveator attempted to show that property owned by the testator came from the family of the caveator. The trial judge held that the evidence was not admissible and instructed the jury to disregard any testimony showing how the testator acquired the property, stating to them that the question of how the testator derived ownership of the property was not involved in the case.
This court has repeatedly held that where there is an issue of fact as to the testamentary capacity of the maker of a will, evidence showing the source from which property disposed of by the will came into the decedent's possession is relevant and material to show whether the provisions of the will are just and reasonable, and accord with the state of the testator's family relations. Pergason v. Etcherson, 91 Ga. 785 (1) (18 S.E. 29); *74 Holland v. Bell, 148 Ga. 277 (1) (96 S.E. 419); Murphy v. Murphy, 152 Ga. 275 (109 S.E. 903); Northwestern University v. Crisp, 211 Ga. 636, 642, supra; Worrell v. Ganns, 214 Ga. 708 (3) (107 SE2d 186).
The testator in the present case left all of his property to the United Daughters of the Confederacy, and the trial judge erred in refusing to allow evidence of the source from which the property was derived.
Judgment reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316633/ | 113 Ga. App. 507 (1966)
148 S.E.2d 451
ANGEL
v.
THE VARSITY, INC.
41939.
Court of Appeals of Georgia.
Argued April 5, 1966.
Decided April 20, 1966.
Webb, Parker & Ferguson, John Tye Ferguson, for appellant.
Long, Weinberg & Ansley, Ben L. Weinberg, Jr., Gregg Loomis, for appellee.
DEEN, Judge.
Appellant in this "slip and fall" case concedes that no cause of action is set out based on the theory that the defendant proprietor had actual knowledge of the presence of a slippery foreign substance on the floor of its restaurant, or that the substance had been there long enough so that the defendant should be charged with constructive notice of it. Jones v. West End Theatre Corp., 94 Ga. App. 299 (94 SE2d 135); Campbell v. H. L. Green Co., 76 Ga. App. 477 (46 SE2d 351); Ford v. S. A. Lynch Corp., 79 Ga. App. 481 (54 SE2d 320). Negligence is, however, sought to be predicated on the construction and maintenance of the premises through allegations that a large part of the food sales of the defendant were wieners, hamburgers and sandwiches; that counters were *508 provided where catsup and other condiments were available for customers to use in seasoning their food, the customers squeezing the containers while standing at the serving bars and then carrying the food to seats, and that the defendant knew that customers regularly and habitually dropped catsup and other condiments on the floor, which was reddish brown in color and thus furnished no contrast to catsup which fell upon it, and was indistinguishable from it. The petition alleges negligence in maintaining a floor of this coloring under the circumstances, in providing catsup under these conditions, in failing to take necessary precautions, including "constant patrol of the premises and inspection of the floor" to remove any catsup so dropped; in failing to warn customers of the likelihood of condiments falling to the floor; and in permitting so many customers on the premises that the plaintiff and others could not inspect the floor for themselves.
The duty of the proprietor is only to exercise ordinary care to keep the premises safe. Code § 105-401. What ordinary care is must be determined in part by the standards of care generally regarded as adequate in similar situations. In Gibson v. Consolidated Credit Corp., 110 Ga. App. 170 (138 SE2d 77) it is pointed out that everybody knows that entrance ways to stores are tracked over on rainy days and rendered more slippery, but there is no duty on the part of a proprietor constantly to mop up rainwater as fast as it may be brought in. "The true ground of liability is the proprietor's superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property." Id., p. 173. Indubitably, most eating establishments allow customers to add their own condiments to their food; many place them on shelves away from the chair where the customer will ultimately sit; whatever the arrangement, it is equally obvious to both proprietor and customer. This petition does not allege that the floor covering was negligently installed or maintained but merely that it was the same color as the catsup; however, other condiments, such as mustard, salt, pepper and relish were also provided and any floor covering used might well approach one or another of them in color. The allegation that not to constantly inspect and patrol the floor area was negligence is a conclusion in the absence of facts showing the premises to be unusually dangerous, for, as stated in Gibson, supra, there is usually no duty on a proprietor to go to *509 such extreme lengths in the exercise of ordinary care. Under similar circumstances Georgia courts have uniformly held that where the customer slips on a substance placed on the floor by others than the owner, it is necessary to allege either that the defendant had knowledge or that under the circumstances he was chargeable with constructive knowledge of its existence. That this is particularly applicable to spilled foods and liquids see Wootton v. City of Atlanta, 101 Ga. App. 779 (115 SE2d 396); Ward v. Veterans of Foreign Wars, 109 Ga. App. 563 (136 SE2d 481); Watson v. McCrory Stores, Inc., 97 Ga. App. 516 (103 SE2d 648).
The trial court did not err in sustaining the motion to dismiss the petition.
Judgment affirmed. Nichols, P. J., and Hall, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316641/ | 222 Ga. 80 (1966)
148 S.E.2d 489
CONTINENTAL CASUALTY COMPANY
v.
SWIFT & COMPANY et al.
23407.
Supreme Court of Georgia.
Argued April 12, 1966.
Decided April 19, 1966.
*81 Gambrell, Hartan, Russell & Moye, Edward W. Killorin, Sidney F. Wheeler, for appellant.
Smith, Ringel, Martin & Lowe, Sam F. Lowe, Jr., Scott Charlton, Cullen M. Ward, for appellees.
DUCKWORTH, Chief Justice.
The decision in Travelers Ins. Co. v. Bumstead, 182 Ga. 692 (186 S.E. 742), established the law that the Workmen's Compensation Statute, as amended by Ga. L. 1922 (Code § 114-403) did not authorize the insurer of the employer who has paid the employee for his injuries to intervene in a suit by the injured employee against the actual tortfeasor, and that the insurance carrier of the employer has no legal right to assert its claim for "reimbursement" and "subrogation" under said section of the Act, by filing and having allowed a petition for intervention as a plaintiff in such action at law, so as to prevent the employee from dismissing the action without the *82 consent of the insurance company. American Mut. Liability Ins. Co. v. Wigley, 179 Ga. 764 (177 S.E. 568). That decision just referred to (Travelers Ins. Co. v. Bumstead, supra) made that ruling in the light of Code § 114-403 before the attempt to amend that section by Ga. L. 1937, pp. 528, 530. But the decision of this court in Lloyd Adams, Inc. v. Liberty Mut. Ins. Co., 190 Ga. 633 (10 SE2d 46), held the 1937 amendment void in that it attempted to authorize recovery when payment had been made, and then held that there was in Code § 114-403 no provision for subrogation. That ruling necessarily held that the repealed portion of Code § 114-403 by the 1937 Act was thereby destroyed and that the decision that the portion of the 1937 Act was void, did not revive, resurrect and breathe life into the portions of Code § 114-403 completely and constitutionally destroyed by the 1937 Act wherein such portions were unqualifiedly repealed. The decision in Lloyd Adams and in United States Cas. Co. v. Watkins, 211 Ga. 619 (88 SE2d 20) have created serious doubts as to what the real law is. See Editorial Notes, Code Ann. § 114-403. The 1963 amendment of Code § 114-403 (Ga. L. 1963, pp. 141, 145) clarifies and fixes the law definitely from there hence, but this case arose during the confusion and before it was claimed in 1963.
In the Lloyd Adams case we respected the constitutional power of the legislature to enact or repeal any law within constitutional limitations. We there yielded without hesitancy to the legislature, and acknowledged the judicial incompetence to enact, repeal or revive a dead law. Careful reading of any decision that attempts to resurrect a dead law will reveal it can be done only when the legislature clearly intended it. This entire field of legal controversy is bottomed upon the decision in Barker v. State, 118 Ga. 35 (44 S.E. 874). But any rational construction of that decision unmistakably discloses that the Act (Ga. L. 1897, p. 39) repealed absolutely no law. It attempted to insert into Code § 428 certain additions. These additions were properly held violative of the Constitution and therefore void. To thus void the purported additions in no degree touched or affected Code § 428 as it existed before that abortive attempt to add to, without repealing any portion thereof, the provisions of the 1897 *83 Act. Logically and correctly this court held in the Barker case that the violence of the 1897 Act left § 428 as it existed before that Act.
From this perfectly clear and sound decision, based upon the facts therein, this court has rendered numerous decisions that were finally consummated in a decision by a divided court in United States Cas. Co. v. Watkins, 211 Ga. 619, supra, that the outright repeal of specified portions of Code § 114-403 by the 1937 amendment did not repeal because the provisions of the 1937 Act enacted in lieu thereof were unconstitutional. That decision started with the Barker case as authority for its refusal to follow the Lloyd Adams case and then cited a number of decisions of this court to support its ruling. We have minutely examined every decision thus cited. We have already demonstrated that the Barker case did not support the ruling. The cited decisions in Phillips v. Hanks, 154 Ga. 244 (113 S.E. 806), and Reynolds v. State, 181 Ga. 547 (182 S.E. 917), are wholly irrelevant to the question. Clark v. Reynolds, 136 Ga. 817 (72 S.E. 254), contains a great amount of verbosity but Justice Beck was absent and did not concur. Jones v. State, 151 Ga. 502 (107 S.E. 765), held only that the legislature was limited in its power to enact laws by the subjects stated in the Governor's call for a special session. Dorsey v. Clark, 183 Ga. 304 (188 S.E. 338), and Freeney v. Pape, 185 Ga. 1 (194 S.E. 515), merely held that an enactment that repealed nothing expressly, when held void, in no way altered the law existing at the time of its enactment. The same can be said as to Cone v. State, 184 Ga. 316 (191 S.E. 250). Finally, the other decision cited to support the ruling in the Watkins case, supra, was Stegall v. Regional Housing Authority, 197 Ga. 571 (30 SE2d 196), which was plainly a case factually the same as the Barker case, for nothing was repealed but only attempted additions were invalid, leaving the law unaffected.
We therefore follow Lloyd Adams and read out of Code § 114-403, what was expressly repealed by the 1937 Act, and also hold as was there done that the 1937 Act was void in its attempted amendment of Code § 114-403 adding a legal absurdity; and as a consequence, Code § 114-403 provides no subrogation *84 whatsoever. With this premise laid for the present case, the answer is simple and plain. The compensation insurance carrier for the employer had no right to intervene, enjoin, or otherwise affect the suit by the injured employer against the tortfeasor to prevent a settlement between them or to be subrogated to the claim of the employee against the tortfeasor for the amount it had paid the employee under the terms of its contract with the employer. The court did not err in sustaining the demurrer and in dismissing the petition.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316662/ | 222 Ga. 33 (1966)
148 S.E.2d 314
MACK
v.
SHEARER et al.
23384.
Supreme Court of Georgia.
Submitted March 15, 1966.
Decided April 7, 1966.
Florence Hewlett Dendy, Hewlett & Ward, Sam D. Hewlett, Jr., for appellant.
Nolan B. Harmon, G. W. Thackston, Jr., Harmon & Thackston, for appellees.
DUCKWORTH, Chief Justice.
This is a personal injury damage suit in which the defendants filed a plea of release with copies of the release and a canceled check showing an accord and satisfaction, signed by the petitioner, and his wife, and by motion they prayed that the petitioner be required to file a written response thereto. By numerous amendments to his pleadings and in answer to the plea the petitioner alleges fraud and conspiracy by and between his insurance company and the insurance company of the defendants in which allegedly (1) he was approached by the adjuster for his company to settle his property liability insurance claim by the purchase of a used car to take the place of his damaged car; (2) he thought he was settling only his property liability with his own company; (3) he apparently signed the release upon the receipt of the automobile and the check in payment of the automobile which was likewise made out to the used-car business and assigned his auto as salvage without the knowledge that he was dealing with the insurance company of the defendant; (4) the adjuster for the defendant's company and the adjuster for his company conspired to obtain his signature on the release by arranging to have the defendant's company pay the damages to petitioner's car, thereby allowing petitioner's company to escape liability and to allow the defendant's *34 company to pay an inadequate consideration for his personal and property damages by obtaining the release by fraud, he being an illiterate person, unable to read or write except to sign his name, and being unfamiliar with contracts, releases, or any business; (4) the two adjusters agreed not to explain to him his right to damages against the defendants for both injuries to his person and property and that he was releasing both by signing the release and they did not read it to him or explain it to him; and (5) under his policy of insurance he is required to co-operate with his company and to execute any and all papers that might be necessary in the subrogation of any claims he has against others under the policy. In addition the pleadings show certain alleged mistakes of facts as to his physical condition by reason of the injury and reliance on medical advice of a physician now shown to be unreliable. The original answer to the plea prayed for reformation of the release to speak the actual truth, but the final pleadings as amended are in three counts with prayers for rescission and cancellation. After a hearing the general demurrers were sustained and the plea of release sustained, and the petitioner appeals from this final judgment. Held:
While the petitioner offered to set off the amount received under the release signed by him, no tender was made of the actual funds received by him, and this case is controlled adversely to him by Harley v. Riverside Mills, 129 Ga. 214 (58 S.E. 711), and Western & A. R. Co. v. Atkins, 141 Ga. 743 (82 S.E. 139). See also Drew v. Lyle, 88 Ga. App. 121 (76 SE2d 142). Whether or not the allegations of settlement of the property damage liability only would have been sufficient to waive tender under the prayers for a mere reformation of the release, we do not have this question for decision since the petition as it now stands was one for rescission alone, and we must follow the above cases.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316669/ | 148 S.E.2d 244 (1966)
267 N.C. 384
Flossie G. ASHE
v.
ACME BUILDERS, INC.
No. 692.
Supreme Court of North Carolina.
May 25, 1966.
*245 Schoch, Schoch & Schoch, by Arch K. Schoch, Jr., High Point, for plaintiff appellant.
Morgan, Byerly, Post & Keziah, by W. B. Byerly, Jr., High Point, for defendant appellee.
HIGGINS, Justice.
The plaintiff alleged and offered evidence tending to show that she entered into a contract on September 22, 1961, in which the defendant agreed to furnish material and to remodel her kitchen. The work involved the use of sheetrock for the walls and celotex overhead. The sheetrock was in slabs four feet wide by eight feet long and one-half inch thick. On Monday following the date of the contract, the slabs were carried to, and stored in the room to be remodeled. They were stacked lengthwise on the floor, leaning at a slight angle against the wall under one of the windows. "More than four or five pieces were stacked there."
On October 19, 1961, one of the workmen called the plaintiff into the kitchen and requested that she remove some pots and pans from a cabinet which was in their way. This is the plaintiff's evidence relating to the cause of her injury:
"When I went to move the pots and pans, I picked them up and came around the end of my table to put them on; and just as I got there the man moved the sink again, because it was a heavy sink, it is *246 cast iron, I guess, very heavy; and he picked it up, you know, and tried to push it, or something; and it joshed the floor again. When he did that, the sheetrock fell over against my refrigerator and pushed it over as far as it would go against the sink, and just the distance to hit me right on my leg, because that is where I was standing. Two pieces of the sheetrock broke when it hit my leg."
In passing on the motion to nonsuit, we need examine only the plaintiff's allegations of negligence in support of which she offered evidence. Wilkes Poultry Co. v. Clark Trailer & Equipment Co., 247 N.C. 570, 101 S.E.2d 458; Messick v. Turnage, 240 N.C. 625, 83 S.E.2d 654. The evidence offered relates only to the allegation the defendant was negligent in that its agents had placed the slabs at an angle against the wall, thereby creating a dangerous condition which was likely to cause an injury to the plaintiff, failed to warn her of the danger to the end that she might take steps to avoid it; that plaintiff was actually injured by the falling slabs on October 19, 1961. (Citing Chanosky v. City Building Supply, 152 Conn. 642, 211 A.2d 141 (1965).)
For more than three weeks these slabs were undisturbed and remained in the same position until a workman moving a heavy cast iron sink caused the floor or walls to vibrate and the slabs to topple over. The slabs struck the refrigerator and then the plaintiff, injuring her.
The Court is confronted with this question: Is the plaintiff's evidence, viewed in the light most favorable to her, sufficient to permit a legitimate inference that the defendant was negligent in stacking the sheetrock slabs against the wall at a slight angle and should have reasonably foreseen that some injury to the plaintiff would proximately result from that negligence? The proper storage place for the materials would appear to be in the room where they were to be used rather than in some other part of the house occupied and in use by the plaintiff. The slabs, if placed lengthwise on the floor, leaning at an angle against the wall, would appear to be less likely to topple over than if they were placed endwise on the floor. To place these slabs flat on the floor would occupy a space of 12 square feet and would handicap those engaged in remodeling the room. Any danger from the falling slabs would have been as apparent to the plaintiff as to the workmen. For three weeks they had been in the same position.
The correct rule of law by which we are to determine the plaintiff's right to have a jury pass on the issues is stated in Jackson v. Neill McKay Gin Co., 255 N. C. 194, 120 S.E.2d 540:
"In order to establish actionable negligence, plaintiff must show that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed to the plaintiff under the circumstances in which they were placed, and that such negligence was the proximate cause of the injurya cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such result was probable under all the facts as they existed. * *
"Negligence is not presumed from the mere fact of injury. The plaintiff is required to offer legal evidence tending to establish beyond a mere speculation or conjecture every essential element of negligence, and upon failure to do so, nonsuit is proper. And in this connection, whether or not there is enough evidence to support a material issue is a question of law."
When measured by the foregoing rule, the plaintiff's evidence in this case is insufficient to survive the motion for nonsuit. The judgment is
Affirmed.
MOORE, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316893/ | 148 S.E.2d 30 (1966)
267 N.C. 209
J. Arthur JOHNSON et al.
v.
Lela J. BLACKWELDER, Administratrix of J. M. Blackwelder, Deceased, and Lela J. Blackwelder, Individually.
No. 610.
Supreme Court of North Carolina.
May 4, 1966.
*31 Hartsell, Hartsell & Mills and K. Michael Koontz, Concord, for plaintiff appellants.
Alexander & Brown, Kannapolis, and Williams, Willeford & Boger, Concord, for defendant appellees.
BOBBITT, Justice.
Section 15 of Chapter 879, Session Laws of 1959, known as the Intestate Succession Act, now codified as G.S. Chapter 29, provides: "This Act shall become effective July 1, 1960, and shall be applicable only to estates of persons dying on or after July 1, 1960."
Intestate died June 18, 1962.
G.S. § 29-13 provides: "All the estate of a person dying intestate shall descend and be distributed, subject to the payment of costs of administration and other lawful claims against the estate, and subject to the payment by the recipient of State inheritance taxes, as provided in this chapter."
G.S. § 29-14, in pertinent part, provides: "The share of the surviving spouse shall be as follows: * * * (4) If the intestate is not survived by a child, children or any lineal descendant of a deceased child or children or by a parent, all the net estate." See Tolson v. Young, 260 N.C. 506, 509, 133 S.E.2d 135. There being no lineal descendants, under G.S. § 29-14 the surviving widow was entitled to "all the net estate" of Intestate.
*32 It is well settled that "an estate must be distributed among heirs and distributees according to the law as it exists at the time of the death of the ancestor." 23 Am.Jur. 2d, Descent and Distribution § 21, citing, inter alia, Wilson v. Anderson, 232 N.C. 212, 59 S.E.2d 836, 18 A.L.R. 2d 951, and s. c. on rehearing, 232 N.C. 521, 61 S.E.2d 447, 18 A.L.R. 2d 959.
Intestate had no vested right in the statutes of descent and distribution in effect prior to the ratification on June 10, 1959, of the Intestate Succession Act. He was charged with knowledge that these statutes were subject to change by the General Assembly. "The power of the Legislature to determine who shall take the property of a person dying subsequent to the effective date of a legislative act cannot be doubted." Bennett v. Cain, 248 N.C. 428, 431, 103 S.E.2d 510, 513, and cases cited.
Plaintiffs base their contention on the allegation that Intestate became mentally incapable of making a will prior to ratification of the 1959 Act and that such mental incapacity continued until his death.
Plaintiffs' contention assumes: Before he became mentally incapable of making a will, Intestate had knowledge of and was pleased with the statutes of descent and distribution; and, if he had made a will, he would have disposed of his estate as provided by the statutes then in effect. He would have been displeased with the provisions of the 1959 Act; and, but for his mental incapacity, would have made a will disposing of his estate as provided by the statutes in effect prior to ratification of the 1959 Act.
The successive assumptions underlying plaintiffs' contention are unwarranted. They relate to matters that lie wholly within the realm of speculation.
The determinative fact is that Intestate made no will. Hence, his estate "shall descend and be distributed" in accordance with the statutes in effect on June 18, 1962, the date of his death, namely, G.S. Chapter 29. The court properly sustained the demurrer; and, it appearing affirmatively that plaintiffs have no cause of action as alleged heirs and distributees of Intestate, properly dismissed the action. Hence, the judgment of the court below is in all respects affirmed.
Affirmed.
MOORE, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316883/ | 248 S.C. 1 (1966)
148 S.E.2d 747
SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Appellant,
v.
Jackson T. TOUCHBERRY and the Federal Land Bank, Respondents.
18510
Supreme Court of South Carolina.
May 30, 1966.
*2 Messrs. Daniel R. McLeod, Attorney General, and C.T. Goolsby, Jr., Assistant Attorney General, of Columbia, and Roger & Riggs, of Manning, for Appellant.
*3 Messrs. Harold W. Detwiler, of Summerton, and Benj. A. Bolt, of Greenville, for Respondents.
May 30, 1966.
BRAILSFORD, Justice.
The respondent, Jackson T. Touchberry, owns, operates and resides upon a 146 acre farm in Clarendon County about one mile from the town of Summerton. The South *4 Carolina State Highway Department has condemned 20.5 acres of this land as a right-of-way for Interstate-95, a main controlled access highway from northeastern United States to Florida. Upon a trial de novo in the circuit court, the the jury awarded $31,000.00 as compensation to the landowner and the department has appealed from an order of the circuit court refusing its motion for a new trial. This motion charged that the court erred in submitting to the jury for its consideration in assessing compensation four factors claimed by the landowner as elements on special damage, to wit, increased traffic noise at the land owner's residence, loss of breeze at the residence because of the elevation of the highway, loss of view from the residence because of such elevation, and circuity of travel between 38 acres of Touchberry's farm lying on one side of the controlled access highway and his remaining land on the opposite side thereof. The motion also challenged the admission of evidence as to each of these factors. Each exception on this appeal charges that the court erred in overruling a specified ground of the motion for a new trial. The issue before us is thus limited to whether the court erred in overruling this motion on any of the grounds specified therein.
As to traffic noise. The defendant contends that increased traffic noise resulting from the construction of the highway near the Touchberry residence does not constitute special damage because "there is no showing that the alleged injury is special and peculiar to the land owner and not such as is commonly suffered by all other whose homes are in close proximity to that highway."
This contention is apparently based upon a misconception of the law applicable in assessing damages to the remaining property of a landowner where a portion of an entire tract has been condemned for a public improvement. We quote from 4 Nichols on Eminent Domain, Section 14.1 page 473: "A distinction must be drawn between consequent damages to a remainder area where part of a tract is physically *5 appropriated and consequential damages to a tract no part of which is physically appropriated. In the latter case the damage must be peculiar to such land and not be such as is suffered in common with the general public. In the former case it matters not that the injury is suffered in common with the general public."
The following quotation from South Carolina State Highway Department v. Bolt, 242 S.C. 411, 131 S.E. (2d) 264, states the applicable rule:
"* * * The special damages referred to in the above statutes relate to injury or damage to the remainder of the property from which a portion is taken. They would include any damage or any decrease in actual value of the remainder of the landowner's property which are the direct and proximate consequence of the acquisition of the right-of-way. In other words, as a general rule, special damages include all injuries or damages which cause a diminution in the value of the remaining property. As stated in 18 Am. Jur. 905, Section 265:
"`When part of a parcel of land is taken by eminent domain, the owner is not restricted to compensation for the land actually taken; he is also entitled to recover for the damage to his remaining land. In other words, he is entitled to full compensation for the taking of his land and all its consequences; and the right to recover for the damage to his remaining land is not based upon the theory that damage to such land constitutes a taking of it nor is there any requirement that the damage be special and peculiar, or such as would be actionable at common law; it is enough that it is a consequence of the taking. The entire parcel is considered as a whole, and the inquiry is, how much has the particular public improvement decreased the fair market value of the property, taking into consideration the use for which the land was taken and all the reasonably probable effects of its devotion to that use.'" (Emphasis added.) 242 S.C. 417, 131 S.E. (2d) 266.
*6 The grounds of the department's motion for a new trial which were based upon the foregoing contention with respect to traffic noise were properly overruled.
As to loss of view and of breeze. These two elements may conveniently be considered together. The landowner testified that from his residence he could see over most of his farm, at least seventy-five percent of the cultivated land; that the highway will be constructed on an elevation, after which his view will be restricted to about one-third of it. He further testified that the elevated highway would cut off a "wonderful breeze" from the southwest by which, because of its location, his residence was favored in the summertime. With respect to his testimony as to both of these items, counsel for the department interposed general objections. The only attempt at specification of any ground of objection was in the following colloquy between counsel and the court.
"Mr. Goolsby: Object to loss of breeze, your Honor.
"The Court: I think he is entitled to go into the matter of the elevation. The question of credibility of the testimony is for the jury.
"Mr. Goolsby: We don't question his credibility, if the Court please. We just question the competence and relevance as it has to do with the land value we are taking."
The errors assigned in the grounds of the motion for a new trial relating to the admission of this testimony were that, paraphrasing from the separately stated grounds, such evidence was not relevant to the issues involved in that an alleged loss of view and loss of breeze do not constitute either special damages or a taking of property in eminent domain for which compensation must be paid and that such evidence was incompetent in that no qualified witness established that the elevation of the proposed highway would be such as to deprive the landowner of any view or breeze.
It is immaterial on the issue of special damages that loss of view and loss of breeze do not constitute a taking *7 of property in eminent domain. Nor could the testimony that the highway would be constructed on the appropriated land, in proximity to the landowner's residence, at such an elevation as to interfere with the view therefrom and to cut off favorable summer breezes, have been excluded on the theory that such interferences could not constitute special damages within the meaning of Section 33-135, Code of 1962. This section requires that any special damages resulting from the taking of a portion of a tract for a right-of-way be considered in assessing compensation. Under this statute, and others of similar import elsewhere, "(t)he different elements of damage to remaining land recoverable when part of a tract is taken are as numerous as the possible forms of injury." 4 Nichols on Eminent Domain, Section 14.24, at 556. It requires no argument to demonstrate that the value of a homesite may be impaired by the construction in proximity thereto of a highway at such an elevation as to obstruct view and favorable breezes.
The point that the evidence was incompetent because "no qualified witness" established what the elevation of the highway would be was not raised at the trial. Therefore, it was not available as a ground of motion for a new trial and there was no error in overruling it. Furthermore, the landowner's testimony that the highway elevation would be such as to interfere with the view from his residence and to interfere with airflow was not challenged at the trial, although the highway plans were in evidence and department engineers were available as witnesses. Inferentially from these facts, the landowner's testimony was consistent with the elevation shown on the plans, which are not included in the record here but were before the jury.
The department also included in its motion for a new trial the grounds that the court erred in charging the jury that they could consider obstruction of view and interference with airflow as elements of special damage. The error assigned was limited to the assertion that neither of these factors "constitute a special damage or a taking in eminent *8 domain for which compensation must be paid." For reasons already stated, we conclude that these grounds of the motion were properly overruled. This result is supported by Barnes v. Commonwealth, 305 Mass. 339, 25 N.E. (2d) 737, 127 A.L.R. 104, which involved interference with a desirable view as an element of special damage. See Annotation of this point, 127 A.L.R. 106.
In addition to the alleged errors with respect to view and airflow which were specified in the motion for a new trial, the department argues in the brief that this testimony should have been excluded because there was no testimony that the obstruction to view and airflow impaired the market value of the remaining land. We think that it is at least inferable from the testimony that there was some diminution in the market value of the landowner's residence in consequence of the elevation of the highway. However, the point need not be pursued. It was not included in the grounds of the motion for a new trial. Therefore, it is not available on appeal from the order overruling that motion.
As to circuity of travel. One of the main factors relied upon by the landowner and his witnesses in their testimony as to special damages is that the landowner will not have direct access from one portion of his remaining land to the other. Instead, he will have to travel for one-half mile along frontage roads and through an underpass in going from one parcel to the other.
The court instructed the jury that the landowner was entitled to severance damage, and that, in this connection, they might "properly consider the circuity of travel between one portion of his farm and another portion of his farm." He also read the following request to charge submitted by the landowner: "An element of special damage which may be considered is the necessity of using a circuitous route to gain access to remaining lands severed by a controlled-access highway."
The quoted instruction to the jury was made a ground of the department's motion for a new trial, the error assigned *9 being "that circuity of travel does not constitute either a special damage or a taking of property in eminent domain for which compensation must be paid and that circuity of travel may not be considered separately from and independently of severance." On this appeal, the department has excepted to the denial of this ground of its motion, the error assigned conforming strictly to the motion being:
"a. that circuity of travel does not constitute either a special damage or a taking of property in eminent domain for which compensation must be paid;" and "b. that circuity of travel may not be considered separately from and independently of severance."
The assignment of error is without merit and is not really argued in the brief, which concedes, quoting: "Where a highway is of the controlled access character, severance is more complete; and the diminution in the value of the land because of the increased inconvenience in going from one tract to the other may be considered." The brief asks for reversal because, quoting: "No explanation is set forth in that charge that circuity of travel, in order to be considered at all, must affect the fair market value of the remainder. In charging the jury that simply the necessity of using a circuitous route constituted a special damage, the Court erred."
The entire charge as to special damages is subject to the criticism now leveled at it. The trial judge fell into error by instructing the jury that they might award compensation for specified elements of such damages, without also instructing them that such compensation must be limited to the decreased market value of the property resulting therefrom. Furthermore, the usual instruction that just compensation is to be measured by the difference between the value of the property before the taking and its value afterward, taking into account the use to which the portion condemned will be put, which would have tended to mitigate the error, was not given. However, this appeal from the refusal of the *10 department's motion for a new trial does not reach an error committed at the trial which was not put forward as a ground of that motion. The error assigned to the instruction on circuity of travel in the motion, quoted above, can not fairly be construed to include the error urged, for the first time, on the last page of the brief. There was no merit in the ground of the motion for a new trial relating to the charge on circuity of travel and the court properly overruled.
The remaining exceptions have been carefully considered and found to raise no substantial issue not already resolved against the department.
Affirmed.
MOSS, Acting C.J., LEWIS and BUSSEY, JJ., and LIONEL K. LEGGE, Acting Justice, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316899/ | 148 S.E.2d 255 (1966)
267 N.C. 360
Hubert MONTAGUE and Harvey Montague, d/b/a Montague Building Company,
v.
C. T. WOMBLE.
No. 530.
Supreme Court of North Carolina.
May 25, 1966.
*256 Bailey, Dixon & Wooten, by, Wright T. Dixon, Jr., Raleigh, for plaintiff appellees.
Crisp, Twiggs & Wells, by Hugh A. Wells, Raleigh, for defendant appellant.
HIGGINS, Justice.
As stated in the complaint, the cause of action rests solely on: (1) the execution and delivery of a check for $5,000.00; and (2) the failure of the check to clear the bank when presented. The complaint does not allege the check was based on any valuable consideration, or in discharge of any debt *257 or obligation the defendant owed the plaintiffs.
The defendant did not challenge the sufficiency of the complaint to state a cause of action in the Superior Court; nor does he do so here. He does allege, however, (1) the check was without consideration; (2) that he is not justly indebted to the plaintiffs in any amount; (3) that the parties carried on negotiations entirely in parol with respect to the purchase by the defendant of a lot on which a house was under construction. The defendant gave the check as an advance payment during the negotiations which failed to culminate in a binding contract in that no written agreement or memorandum was executed or signed by either of the parties. The defendant never received any consideration whatever for the check. The plaintiffs have never conveyed the property or any property rights whatever to the defendant. In fact, the plaintiffs have sold and conveyed the house and lot to another purchaser. This they admit.
The plaintiffs' evidence in essence established the foregoing. The plaintiffs admit that all negotiations were in parol; that no contract or writing was ever signed by the defendant. They admit they have sold and conveyed the house to another. They do not claim they sold at a loss or that they suffered any damage whatever as a result of their having negotiated orally with the defendant.
In short, the plaintiffs ask the Court to order the check paid without ascertaining whether any part of it is justly due. The plaintiffs' own evidence established the defense that the check was without consideration. It was not a gift. It was not a loan. It was not in payment of any legally binding obligation. It was given in anticipation of what would be a credit on the purchase price of a house, the deal for which was never consummated. The contract and all its parts were void under the statute of frauds. Searcy v. Logan, 226 N.C. 562, 39 S.E.2d 593; Hodges v. Stewart, 218 N.C. 290, 10 S.E.2d 723; Culp v. Love, 127 N.C. 457, 37 S.E. 476. The plaintiffs' own evidence established the defendant's plea in bar. The court should have sustained the plea. Instead, it rendered judgment for the plaintiffs for the full amount of the check based on a single issue which the jury answered for the plaintiffs under peremptory instructions from the court. The judgment is
Reversed.
MOORE, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316885/ | 148 S.E.2d 604 (1966)
267 N.C. 560
Robie Willard CATES
v.
HUNT CONSTRUCTION CO., Inc., Employer, and Aetna Casualty & Surety Co., Carrier.
No. 770.
Supreme Court of North Carolina.
June 16, 1966.
*606 Powe, Porter & Alphin, by Oliver W. Alphin, Durham, for plaintiff appellant.
Spears, Spears & Barnes, by Alexander H. Barnes, Durham, for defendant appellees.
HIGGINS, Justice.
At the time of plaintiff's injury, June 18, 1962, the Workmen's Compensation Act, G.S. § 97-31, provided a list of compensable injuries and the method for determining the rate and period of compensation: "In cases included by the following schedule the compensation in each case shall be paid for disability during the healing period and in addition the disability shall be deemed to continue for the period specified, and shall be in lieu of all other compensation, including disfigurement."
Subsections (1) through (20) neither included compensation for disfigurement nor for the loss of, or injury to, an internal organ of the body. However, Subsection (21) provided: "In case of serious facial or head disfigurement, the Industrial Commission shall award proper and equitable compensation not to exceed three thousand five hundred dollars." Subsection (22) provided:
"In case of serious bodily disfigurement, including the loss of or permanent injury to any important external or internal organ or part of the body for which no compensation is payable under the preceding subsections, but excluding the disfigurement resulting from permanent loss or permanent partial loss of use of any member of the body for which compensation is fixed in the above schedule, the Industrial Commission may award proper and equitable compensation not to exceed three thousand five hundred dollars ($3,500.00); provided, that the Industrial Commission may not make an award for permanent partial or permanent total disability, and also for bodily disfigurement resulting from loss of, or permanent injury to, any internal organ, the loss of which, or the injury to which resulted in such permanent partial or permanent total disability."
Subsection (21) is mandatory in providing that the Industrial Commission shall award proper and equitable compensation, not to exceed $3,500.00 for serious facial or head disfigurement. Subsection (22), as of June 18, 1962, provided, "[T]he Industrial Commission may award proper and equitable compensation not to exceed three thousand five hundred dollars ($3,500.00)" in case of serious bodily disfigurement, "including the loss of or permanent injury to any important external or internal organ or part of the body * * *."
The hearing commissioner found facts and entered an award of compensation in the amount of $300.00 for the scar and $2,500.00 for the loss of the kidney. On review, the full Commission, "As a matter of law," acting under what it considered the compulsion of the Branham, Davis, and Arrington cases, struck out the award of $2,500.00 for the loss of the kidney. The Industrial Commission and the Superior Court permitted the Commissioner's finding of disfigurement to stand.
Subsections (1) to (20), inclusive, do not provide any compensation whatever for injuries on account of disfigurement. Neither do they provide compensation for loss of or injury to an organ or part of the body. While Subsection (21) provides compensation for serious disfigurement of the face or head, Subsection (22) provides compensation for serious bodily disfigurement, including the loss of, or injury to, an external or internal organ of the body. Under the facts found in this case, a scar, 16 inches long, unevenly healed, and the *607 complete loss of a kidney in the course of treatment for the industrial accident, would seem to permit, if not compel, the award of compensation for the loss of the kidney. To hold otherwise is to sanction a strict, narrow, and strained construction of the subsection. It must be remembered the Workmen's Compensation Act requires the Industrial Commission and the courts to construe the compensation act liberally in favor of the injured workman. "The Act `should be liberally construed to the end that the benefits thereof should not be denied upon technical, narrow, and strict interpretation.'" Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 85 S.E.2d 596; Henry v. A. C. Lawrence Leather Co., 231 N.C. 477, 57 S.E.2d 760. The philosophy which supports the Workmen's Compensation Act is that the wear and tear of the workman, as well as the machinery, shall be charged to the industry. Vause v. Vause Farm Equipment Co., 233 N.C. 88, 63 S.E.2d 173.
None of the three cases the Commission relied on as compelling the denial of the right to award compensation for the loss of the kidney is actually in point. In Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865, the claimant had a compressed fracture of one of the vertebrae in his spine. There was no disfigurement and no operation. In Davis v. Sanford Construction Co., 247 N.C. 332, 101 S.E.2d 40, the claimant lost two front teeth. His claim arose under Subsection (21) for head injuries. The Claim in Arrington v. Stone & Webster Engineering Corp., 264 N.C. 38, 140 S.E.2d 759, was for the loss of the sense of taste and smell. That case, too, arose under Subsection (21), applicable to head injuries.
The illustration the court used in Branham v. Denny Roll & Panel Co., supra, (and alluded to with apparent approval in Davis and Arrington) on which the Commission relies, goes beyond any issue actually involved in the case. The Court said: "There must be an outward observable blemish, scar or mutilation which tends to mar the appearance of the body, * * *. For instance, a puncture of the eardrum or the removal of a kidney would result in injury, perhaps serious, and yet no disfigurement would result." The illustration and the conclusion from it are dicta.
In the instant case, not only is there a scar, but it resulted from a necessary cutting operation incident to the complete removal of a kidney injured in the claimant's fall from the scaffold where he was at work. The Commission found disfigurement. The finding is not challenged. Some of the cases, especially Branham, seem to attach undue importance to the scar and little or none to the loss of the internal organ of the body. The contention that the claimant's scar and the loss of a kidney do not impair his occupational opportunities scarcely deserve comment. In this industrial age frequently workmen are required to undergo physical examinations in the course of their selection as employees. Certainly they are interrogated about their fitness to do the work required. Such examination or inquiry would disclose the reason for the scar and the loss of the kidney. According to his evidence, the applicant might be required to say he could now lift only 35 pounds. If another applicant, without a scar, with two good kidneys, and the ability to lift 250 pounds is standing in line for the job, does it make sense to say this claimant's occupational ability has not been impaired by the scar and the loss of a kidney?
By Ch. 424, Session Laws of 1963, effective July 1, 1963, the General Assembly rewrote Subsection (22) and added Subsection (24), separating the provisions for awards of compensation for disfigurement and for loss of an important organ of the body. The employer and his insurance carrier in this case argue the Legislature, by the change, is now providing the right of compensation for the loss of the kidney which did not exist before the enactment. It may with as much or more force be argued that the Legislature merely restated *608 what its purpose and intent were from the beginning, and that the courts, by their narrow and strict construction, attached to the original Act a meaning the General Assembly never intended.
In this case the trial court committed error in affirming the decision of the Industrial Commission. The Superior Court should have entered judgment vacating the award of the Industrial Commission and remanding the proceeding for the entry of such an award, not exceeding $3,500.00, as the Commission "may deem proper and equitable compensation," for the loss of the claimant's kidney.
The judgment of the Superior Court is reversed with instructions that the proceeding be remanded for the entry of an award by the Industrial Commission as here indicated.
Reversed.
MOORE, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316903/ | 676 P.2d 730 (1984)
106 Idaho 155
Lester BROERSMA; and Vernon Wells and Nancy Wells, Plaintiffs-Respondents,
v.
Geraldine SINOR and Dick Andersen, Defendants-Appellants.
No. 14179.
Court of Appeals of Idaho.
February 14, 1984.
*732 Daniel P. Featherston, Sandpoint, for defendants-appellants.
Bruce H. Greene, Sandpoint, for plaintiffs-respondents.
McFADDEN, Judge, Pro Tem.
This is an appeal from a judgment in favor of two loggers who sued their employers for lost compensation and for the employers' alleged conversion of a skidder used in the logging operation. Compensatory and punitive damages were awarded. We affirm the judgment in part and reverse in part, remanding the cause for modification of the judgment as explained below.
The trial court found the facts essentially as follows. Prior to the fall of 1978, Lester Broersma and Vernon Wells (referred to herein as respondents) were engaged in contract logging. Appellant Andersen represented to the respondents that he had timber property available for logging and that he had enough work to keep them busy for at least five years. While still employed in their previous logging operations, respondents started logging on a weekend basis for appellant Andersen. Unbeknownst to respondents, the timberland was in the name of appellant Sinor. Based upon appellant Andersen's representations of five years prospective continuation of logging operations, the respondents left their previous employment in November or early December, 1978. The respondents' "skidder cat" became inoperable during their first job for the appellants. Ultimately in order to continue logging, the respondents purchased a 1972 rubber-tired skidder which they financed through a bank, borrowing $8,504 at 13% interest evidenced by a promissory note and security agreement covering the skidder. The parties entered into a side agreement that the appellants would repay the note and be reimbursed through deductions from respondents' compensation for the logging operations. The parties later stipulated that a total of $1,268.90 was withheld from respondents' compensation and paid to the bank; that respondents directly paid the bank interest in the sum of $83 for a total contribution of $1,351.90; and that appellant Sinor paid the bank $7,213.10, the remaining balance, for which she had not been reimbursed.
In January, 1979, the logging operation ceased due to weather conditions. The appellant Andersen represented that respondents would have further work on property at a lower elevation, but it ultimately developed that appellants had no such property. Neither did they have property to keep respondents working for the promised five years. Respondents did not obtain other employment until late May or early June, 1979.
In mid-August, 1979, while the respondents had possession with legal title to the skidder, appellants removed the skidder from their possession. The appellants gave notice to the respondents claiming that they had "repossessed" the skidder, and that if the respondents did not redeem the skidder by September 5, 1979, that it would be sold at a private sale. After petition by the respondents, the district court issued a writ of possession. This writ was never executed by the sheriff apparently because the appellants had secreted the skidder. The appellants retained possession of the skidder for twelve months before it was returned.
The respondents filed this action for conversion, claim and delivery of the skidder, and damages. The appellants answered and, as an affirmative defense, alleged that Andersen was acting as Sinor's disclosed agent, that Sinor had paid all amounts due under the promissory note and that therefore Sinor was subrogated to the bank's rights under the note and security agreement. The appellant Sinor counterclaimed seeking recovery of the note balance she *733 had paid ($7,213.10) plus accrued interest and attorney fees. Trial was held by the court sitting without a jury. During trial, evidence beyond the scope of the issues framed by the pleadings was offered by both parties and admitted without objection by the other party. The trial court by memorandum decision held that an agreement had been formed between the parties, that the appellants had breached the agreement by not having the represented timber to be logged, that the skidder belonged to the respondents, and that the appellants were liable for conversion of the skidder. The court awarded damages for breach of contract in the amount of the respondents' lost wages, loss of the stipulated rental value of the skidder for the stipulated twelve months that the skidder was in the appellants' possession, the cost of necessary repairs to the skidder to place it back in operating condition, and punitive damages. The court denied the counterclaim.
Appellants first argue that the trial court erred in awarding respondents loss of wages because (1) the issue had not been pleaded and (2) even if the issue was properly before the court, "lost wages" was an incorrect measure of damages. The trial court awarded each respondent $10,000 as lost wages for the four months they were unemployed. Although the respondents' pleadings did not specifically request recovery for lost wages, the trial court found that the issue was submitted for resolution with the express and implied consent of the parties. Testimony was taken without objection as to respondents' net earnings for the four month period they were unemployed. Under the state of the record, we hold that the trial court did not err by ruling that the question of lost compensation was properly an issue for resolution.
Appellants contend, in the alternative, that the trial court applied an improper measure of damages, claiming that a "lost profits" formula should have been used. Respondents testified that they were employed at the time appellant Andersen approached them and were then earning $2,500 net per month. Respondents left that employment to work for appellants. The measure of damages for breach of contract are those which will "fairly compensate the injured party for his loss." Anderson v. Gailey, 100 Idaho 796, 800, 606 P.2d 90, 94 (1980), quoting O.A. Olin Co. v. Lambach, 35 Idaho 767, 772, 209 P. 277, 278 (1922). By leaving their previous employment, respondents were damaged in an amount of at least what their previous employment had generated. There was evidence, albeit conflicting, that appellant Andersen represented that respondents would make at least what they were making at their previous employment. The award of damages for lost compensation is supported by substantial evidence and will not be disturbed.
The second issue raised by appellants is whether the trial court erred in failing to find that they were subrogated to the rights of the bank when Sinor paid off respondents' loan on the skidder. There was no assignment from the bank by which appellants would be substituted to the rights of the bank when they paid off respondents' loan. Only the respondents were obligated on the note and appellant Sinor was, therefore, acting as a volunteer when she repaid the loan. Appellants were thus not entitled to be subrogated to the rights of the bank arising from its security interest in the skidder. See May Trucking Co. v. International Harvester Co., 97 Idaho 319, 543 P.2d 1159 (1975).
However, the fact remains that the parties had a side agreement for the appellants to pay the bank and for the respondents to reimburse them. Appellant Sinor paid the $7,213.10 for which she received no reimbursement. This payment allowed the respondents to receive clear title to the skidder worth at least $8,500. The trial court held that the appellants' breach of the contract discharged the respondents' obligation to reimburse. As a result, the trial court did not credit the unreimbursed amount against the breach of contract damages. We hold that this was error.
*734 "[T]he purpose of awarding damages for breach of contract is to fully recompense the non-breaching party for its losses sustained because of the breach, not to punish the breaching party. Application of this principle of course requires that the court in fixing damages account for the savings which inure to the non-breaching party because he is relieved of his duty to perform by the breach." Anderson v. Gailey, 100 Idaho 796, 801, 606 P.2d 90, 95 (1980).
We believe that the rules presented in the Restatement of Contracts § 335 (1932) and the Restatement (Second) Contracts § 374(1) (1981) are supportive. Section 335 provides that "[i]f the defendant's breach of contract saves expense to the plaintiff by discharging his duty of rendering a performance in return ..., the amount of this saving is deducted from the damages that would otherwise be recoverable." Section 374(1) provides that
"if a party justifiably refuses to perform on the ground that his remaining duties of performance have been discharged by the other party's breach, the party in breach is entitled to restitution for any benefit that he has conferred by way of part performance or reliance in excess of the loss that he has caused by his own breach."
The appellant Sinor benefited the respondents when she repaid the loan. This benefit was to be returned to the appellants by reimbursement during the life of the contract. The breach of the contract saved the respondents this expense which in fairness must be offset against the judgment in the respondents' favor.
Finally, appellants also contend that the trial court erred in awarding $1,000 as punitive damages for the surreptitious removal and retention of the skidder. Appellants base this argument on the theory, which we have rejected, that they should have been subrogated to the rights of the bank. However, in our view, even if the appellants had entertained a good faith view that they had subrogation rights when they initially took the skidder, this would not excuse keeping the skidder for the ensuing twelve months. The trial court found that appellants acted willfully, maliciously and wantonly.
"An award of punitive damages will be sustained on appeal only when it is shown that the defendant acted in a manner that was `an extreme deviation from reasonable standards of conduct, and that the act was performed by the defendant with an understanding of or disregard for its likely consequences.' Hatfield v. Max Rouse & Sons Northwest, supra, 100 Idaho [840,] at 851, 606 P.2d [944,] at 955 [(1980)]."
Cheney v. Palos Verdes Investment Corp., 104 Idaho 897, 905, 665 P.2d 661, 669 (1983). The trial court's findings in the present case are within the requirement of Cheney. These findings are sustained by the evidence. The award of punitive damages will not be overturned.
The judgment of the trial court is affirmed in part and reversed in part. On remand the trial court is directed to reduce the judgment as to the appellant Sinor by an amount appropriate to reflect the offset due her as discussed above. No costs or attorney fees allowed.
WALTERS, C.J., and BURNETT, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/394821/ | 659 F.2d 1125
24 Fair Empl.Prac.Cas. 1516,25 Empl. Prac. Dec. P 31,519, 212 U.S.App.D.C. 241
Darnell HILLIARD, Appellant,v.Paul A. VOLCKER, Chairman of the Federal Reserve Board.
No. 77-1700.
United States Court of Appeals,District of Columbia Circuit.
Argued Jan. 22, 1979.Decided Feb. 3, 1981.
Roy J. Baldwin, for appellant.
Richard W. Hausler, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., at the time the brief was filed, John A. Terry, David H. Shapiro and Michael W. Farrell, Asst. U. S. Attys. and James V. Mattingly, Jr., Washington, D. C., Atty., Board of Governors of the Federal Reserve System, were on the brief, for appellee.
Before WRIGHT, and ROBINSON, Circuit Judges, and RICHEY*, District Judge.
Opinion for the Court filed by Circuit Judge Spottswood W. Robinson, III.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
1
This appeal presents a novel question: In a dispute between a pro se complainant and a federal agency directly implicating Title VII of the Civil Rights Act of 1964,1 as augmented by the Equal Employment Opportunity Act of 1972,2 who, if anyone, has the responsibility of informing the complainant of his statutory right to apply for an appointment of counsel to represent him in ensuing litigation in a federal district court? In the case before us, appellant, unaware of that right, was without a lawyer in the District Court, and he there suffered a dismissal of his discrimination action against the Federal Reserve Board. Our call is now to decide whether on that account appellant should be afforded another opportunity to sustain his claim, this time after seeking the assistance of counsel.
2
We hold that the involved federal agency is under a duty suitably to advise a lawyerless complainant that the court may, in its discretion, provide counsel on request. Since the Board did not do so here, and appellant did not otherwise learn of his right to ask for counsel and was prejudiced by lack of legal representation, we vacate the dismissal order and remand the case for further proceedings.
3
* Resolution of this appeal necessitates recitation of relatively few of the events preceding the advent of suit. Appellant submitted several employment applications to the Federal Reserve Board over a three-year period,3 and viewed the Board's invariably unfavorable responses as racial discrimination violative of Title VII.4 Subsequently, appellant pursued to a conclusion the administrative remedies afforded by the Board, but obtained no satisfaction whatsoever.5
4
Along the way, in a letter to appellant incorporating the decision of its equal employment opportunity examiner, the Board had stated:
5
(Y)ou have the right to have your complaint reviewed by the Board of Governors, and you have 15 days from the receipt of this letter to request such a review. In addition, in accordance with section 14 of the Board's regulations, you have the right to file a civil action in an appropriate United States District Court within 30 days from receipt of final action taken by the Board on your complaint.6
6
But nowhere in this letter, or otherwise in any manner, did the Board ever mention the court's authority to appoint counsel for lay complainants in Title VII lawsuits.7
7
After receiving notice of the final agency action, appellant, unaided by a lawyer, timely filed a handwritten complaint in the District Court.8 That was dismissed as "incomprehensible,"9 but appellant was permitted to file an amended complaint,10 after which the court found it necessary to hold two status conferences in an effort to clarify it. Appellant was not represented by an attorney at either conference or at any other stage of the District Court proceedings.
8
The transcripts of the status conferences portray the handicap that a layman often faces when he lacks counsel in court. Indeed, they suggest that, despite commendable efforts by the court and the Board's lawyer to explain matters to appellant, at times he really did not understand what was transpiring.11 But one conspicuous example need be cited for present purposes. The court decided to limit the trial to a de novo evaluation of the evidence in the administrative record, as supplemented by exhibits from the parties, and, if appellant wished, by his own live testimony.12 As events turned out, however, appellant did not offer additional testimony.13 He now insists on appeal that the reason simply was that he did not comprehend the course of procedure the court prescribed.14
9
Ultimately, the District Court held that appellant had failed to sustain his averment of discrimination by a preponderance of the evidence.15 Accordingly, it dismissed the action,16 whereupon appellant came here. He has been represented by counsel throughout this appeal.
II
10
Appellant contends that the District Court erred in failing to appoint, sua sponte, a lawyer to represent his cause.17 By our analysis, this argument is wide of the mark. Title VII imposes a duty on the court to consider an appointment of counsel for a complainant but only upon his application,18 and there was no such request in this case. Appellant protests, however, that he could not reasonably be expected to ask for a court-appointed attorney when, throughout his tenure in the District Court, he "remained absolutely ignorant" of the court's discretion to furnish one in a Title VII case.19 In light of appellant's factual premise which the record gives no cause to doubt we must determine who, if anyone, bears the responsibility of acquainting lawyerless Title VII complainants with the court's authority in this regard.20 We conclude that there is this duty, and that it lies with the agency disposing of the discrimination claim administratively.
11
Faced as we are with a task basically one of statutory construction, we start with the pertinent statutory language:21
12
Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for (the) complainant and may authorize the commencement of the action without the payment of fees, costs, or security.22
13
We begin, too, mindful that this provision, like any other statute, must be read in a manner that " 'effectuates rather than frustrates the major purpose of the legislative draftsmen,' "23 and we find its objective abundantly clear. Congress realized that many litigants pressing Title VII grievances would have but limited financial resources24 and scant knowledge of the intricacies of legal procedure.25 In granting complainants the right to request counsel,26 and the courts discretionary authority to appoint counsel, Congress intended to mitigate this evident disadvantage.27 Nonetheless, as all too well exemplified by this appeal, both the right and the power remain among those procedural niceties with which a layman may not be familiar, and complainants unaware of their rights obviously are incapable of asserting them. We would mock Title VII's scheme of lay-initiated lawsuits28 if we failed to realize that Congress must have contemplated a step, at some point in the process, assuring that complainants know that the court is licensed to consider, and in appropriate situations to grant, requests for an assignment of counsel.
14
The legislative history of the Equal Employment Opportunity Act of 1972 lends substantial support to the view that Congress intended some suitable notification to unrepresented complainants. The 1972 statute, which extended Title VII coverage to the bulk of the federal workforce,29 also enlarged the role of the Equal Employment Opportunity Commission in the enforcement of Title VII in the private sector.30 The regulatory machinery was extensively overhauled, the rights of affected applicants and employees were strengthened and broadened,31 and the importance of a reasonably informed claimant was reemphasized.32 As the Senate Report on the amending bill explained:
15
Provisions of present law requiring that the person aggrieved be notified of his rights have been retained. Especially in light of the further safeguards in this bill, the Commission is expected, at the commencement and at other appropriate stages of the proceedings, to fully notify the aggrieved person in clear and understandable fashion of the various procedural rights and steps open to him. Too often a person files a charge but then blunders along lost in the bureaucratic process. The Committee believes that further steps should be taken, including perhaps follow-up notification, to ensure that an aggrieved person knows at apropriate (sic) times the status of the case and his rights under the law.33
16
From the very beginning, Congress has authorized Title VII complainants to bring civil actions on their discrimination claims if they remain unsatisfied after administrative proceedings have run their course.34 An invariable statutory concomitant of this license to sue has been the requirement that complainants be given notice of the administrative disposition of their complaints35 a notice prerequisite to suit.36 The Equal Employment Opportunity Commission, whose regulatory realm has always included private-sector employees,37 has promulgated regulations incorporating "the procedures ... for carrying out its responsibilities in the administration and enforcement of Title VII."38 One such regulation specifies that the so-called "right to sue" notice shall include "advice concerning the institution of (a) civil action by the person claiming to be aggrieved, where appropriate."39 And at least since 1973, the standard right-to-sue notice utilized by the Commission has told discrimination claimants, as a part of that advice, that
17
(i)f you do not have a lawyer, or are unable to obtain the services of a lawyer, take this notice to the United States District Court which may, in its discretion, appoint a lawyer to represent you.40
18
These administrative prescriptions bear weighty decisional significance under well settled principles, to which we may once again resort for guidance:
19
An administrative interpretation of a statute by an agency entrusted with its enforcement commands great deference in the courts.41 "Particularly is this respect due when the administrative practice at stake 'involves a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new.' "42 Where the agency is authorized to issue regulations to which Congress has imparted the force of law, ... its interpretation is entitled to an even larger measure of esteem.43 And "(t)o sustain the (agency's) application of (the) statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings."44
20
True it is that the Equal Employment Opportunity Commission's practice of informing complainants on the potential for appointed counsel does not achieve a perfect score under these standards, for it did not originate contemporaneously with the enactment of Title VII in 1965.45 We think, however, that it scores well enough to warrant serious consideration in the interpretation we are summoned to make.46 It was, after all, a step taken ostensibly as a matter of statutory duty by an agency entrusted with enforcement of Title VII from its inception.47 It implements an express exercise of the agency's rulemaking power favoring "advice concerning the institution of (a) civil action,"48 one following closely on the heels of congressional emphasis on procedural protections for lay employees endeavoring to work their way through the statutory process.49 The practice is thoroughly consistent with Title VII's legislative history,50 and is not in the least a deviation from any prior position authoritatively voiced by the Commission.51
21
Weighing, then, the statutory text,52 the legislative and administrative histories,53 the remedial goals54 and the sheer commonsense in the matter,55 we are constrained to hold that Title VII imposes the requirement that complainants be informed that in the event of suit the court is authorized to appoint counsel in appropriate situations upon request. This responsibility is but one facet of the broader congressional expectation that Title VII claimants would be advised generally on their rights.56 That is a function effectively dischargeable only at the administrative level.57 Indeed, there hardly could be a more propitious occasion to speak to counsel-appointment than when the complainant is notified that he is free to sue.58 The Equal Employment Opportunity Commission is doing just that in all cases that are brought before it,59 predominantly, those in the private sector.60 If the will of Congress is to be fully effectuated, implicated agencies must do the same for those who charge forbidden discrimination in federal employment.61
22
It follows that when a complainant is prejudiced because the agency left him ignorant of his right to seek court-appointed counsel, his claim for rectification is meritorious. This conclusion accords with our earlier interpretations of the legislative history and policies underlying Title VII. Two of our fairly recent decisions, Coles v. Penny62 and Bell v. Brown,63 underscore our solid adherence to the principle that lay complainants cannot be penalized for failing to assert procedural rights which the involved agency has neglected to adequately explain. In Coles, a federal employee did not file suit within 30 days of receipt of notice of unfavorable agency action, the period statutorily specified therefore.64 The notice had not informed him either of his right to sue or of the short period within which he could do so. In holding, as a matter of statutory interpretation, that he could not be bound to the 30 day limitation,65 we pointed out that "(t)hirty days is not a long period in which to expect a pro se complainant to become aware of and exercise his statutory right to sue."66 We also reiterated the oftstated judicial admonition that "Title VII is remedial in character and should be liberally construed to achieve its purposes,"67 and we added:
23
(W)e doubt that Congress intended to provide a judicial remedy ... which is so easily forfeited by those whose rights it vindicates. A statutory construction likely in so many cases to render meaningless the provision of a judicial remedy is hardly the "practical and reasonable" one that we should seek.68
24
Bell v. Brown, decided just over a year later, presented another situation in which an aggrieved federal employee filed his civil action late, this time because no right-to-sue notice was sent directly to him. We held that mailing of the notice only to his legal representative did not trigger the 30-day filing period because the employee had not "received" notification within the meaning of the statutory language.69 We reminded that " 'where congressional purpose is unclear, courts have traditionally resolved ambiguities in remedial statutes in favor of those whom the legislation was designed to protect.' "70 We noted that our reading of the statutory word "receipt" not only harmonized with "the fundamental objectives" of Title VII but also "comport(ed) ... with the everyday realities of Title VII litigation."71 We concluded that any other interpretation could "render meaningless" the judicial remedy that the statute provides.72
25
The instant case presents a similar dilemma. Here, too, we are confronted by statutory silence on the central question, yet we must avoid a construction that robs the statutory right to sue of its value. Appellant, like the plaintiff in Coles, was unaware of an important procedural right because the agency responsible for informing him of it did not do so. No more here than in Coles should he have to pay the price of dismissal for his lack of legal sophistication.
26
As in Bell, we must resolve any statutory ambiguity in favor of appellant.73 In the context of a highly remedial statute, we cannot assume that congressional imprecision indicates congressional indifference. Nor should we lose sight of the "everyday realities of Title VII litigation,"74 one of which as this case attests is that many lay claimants will remain unaware of the district courts' authority to appoint counsel for them unless they are so informed by the agency involved. Rather, we can rest secure in the knowledge that Congress certainly did not intend to discourage civil actions by such complainants, or to handicap them in the conduct thereof.
27
We hold, then, that Title VII requires federal agencies conducting proceedings thereunder to inform administratively unsuccessful complainants that in the event of suit the court has discretionary power to appoint counsel for them. We further hold that a litigant who, for unawareness of the court's power, fails to request counsel should not be penalized because the agency has been remiss in this duty. Appellant's discrimination claim thus must be returned to the District Court.75 In the exercise of an informed discretion, the court must first determine whether an appointment of counsel for appellant should be made,76 and if so to proceed accordingly. In any event, the record must be reopened for receipt of appellant's testimony live,77 and for such further proceedings as may be in order. Should new evidence be introduced, the court must then reconsider de novo the proofs as a whole. To these ends, the judgment appealed from is vacated and the case is remanded to the District Court.
28
So ordered.
*
Of the United States District Court for the District of Columbia, sitting by designation pursuant to 28 U.S.C. § 292(a) (1976)
1
Pub.L.No. 88-352, tit. VII, § 701 et seq., 78 Stat. 253 (1964), as amended, 42 U.S.C. § 2000e et seq. (1976) (hereinafter cited as codified)
2
Pub.L.No. 92-261, § 2 et seq., 86 Stat. 103 (1972), codified, as amended, variously at 42 U.S.C. § 2000e et seq. (1976) (hereinafter cited as codified)
3
Administrative Record (Ad.R.) 235-236
4
Ad.R. 235. Title VII specifies broadly that "(a)ll personnel actions affecting employees or applicants for employment ... in executive agencies ... shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16(a) (1976). In the District Court, Board counsel suggested that the Board might not be an agency within the meaning of Title VII, but to the court it was "quite clear" that it was. Transcript of March 11, 1977 (Tr. I) 10-11. See Dorsey v. Federal Reserve Bank, 451 F.Supp. 683, 684 (E.D.Mo.1978) (Title VII applies to a federal reserve bank). The Board does not renew that contention on appeal
5
Ad.R. 239
6
Ad.R. 239. We are prompted to observe that the right to sue proceeds from the Act, and not from an agency regulation. 42 U.S.C. § 2000e-16(c) (1976)
7
See id. § 2000e-5(f)(1) (1976), quoted in text infra at note 22, which provides for discretionary appointment of counsel, and which by 42 U.S.C. § 2000e-16(d) (1976) is made operative in Title VII suits against federal employers
8
Record on Appeal (R.), Document (Doc.) 1
9
Hilliard v. Burns, Civ.No. 76-1655 (D.D.C.) (order), R., Doc. 1. The complaint consisted of eight pages of legal-size paper, but almost all of the handwriting is illegible. Appellant had scrawled "I want a jury trial," or words to that effect, across the bottom of several of the pages
10
R., Doc. 2
11
See note 20 infra
12
Tr. I 15-16; Transcript of Apr. 25, 1977 (Tr. II) 22-23
13
Appellant informs us that he planned to testify, and that he left the second status conference fully expecting that he would have a chance to do so. Brief for Appellant at 8-9, 13. The Board states that after that conference the understanding of the parties was that appellant would contact the court if he wished to offer his testimony. Brief for Appellee at 22. However that may be, the record lends support to appellant's claim that he did not knowingly abandon his plan to take the witness stand, and in no way does the record tend to refute that claim. Not only did he make clear at the first status conference that he wanted to testify, see Tr. I 12, but he repeatedly interjected in the proceedings what amounted to bits of testimony on the merits. See, e. g., Tr. I 12, 14; Tr. II 19-20. And his final record comment on the subject was that he perceived "no need to testify right now at this point." TR. II 22 (emphasis supplied). This expression, combined with his announced expectation that another hearing would be forthcoming, see note 14 infra, suggests that he never wavered in his desire to testify at some point
14
At the second and last status conference, the court told appellant that if he had nothing further to present, "we will decide the case on the basis of the papers in the record," and appellant outwardly agreed. Tr. II 22-23. Moments later, the attorney for the Board announced, "(w)e will file dispositive motions," and appellant, who apparently did not understand, see note 20 infra, made no reply. Tr. II 25. Shortly thereafter, appellant stated to the judge, "(a)ny further Court date, I will be hearing from you," Tr. II 25, seemingly not realizing that there would be no further "court date" save possibly for hearing of the Board's motions unless he requested it for purposes of his own testimony, which earlier he had made known his desire to give. Tr. I 12
15
Hilliard v. Burns, Civ.No. 76-1655 (D.D.C. June 28, 1977) (memorandum)
16
Id. (order)
17
Appellant further asserts that the District Court tolerated what he characterizes essentially as an unknowing waiver of the right to a trial de novo which Title VII guarantees. See, e. g., Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976); Hackley v. Roudebush, 171 U.S.App.D.C. 376, 520 F.2d 108 (1975). The essence of his argument on this score is that the court's exclusive reliance on the administrative record for the testimonial versions of the witnesses robbed the trial of the de novo quality contemplated by those cases. We find no need to address this contention, for, we later hold, the District Court must reopen the record for appellant's testimony and reconsideration of his discrimination claim in light thereof. See note 77 infra and accompanying text
18
See text infra at note 22
19
Brief for Appellant at 2 ("the complainant remained absolutely ignorant of the fact that he might have a right to an attorney, and that he certainly needed an attorney to avoid botching his case")
20
We have reached this question only after we became satisfied that appellant was hurt by lack of counsel in the presentation of his case in the District Court. The record as a whole portrays a litigant materially hampered because he had no attorney. The main source of prejudice was that, despite an apparently steadfast desire to do so, see note 13 supra, appellant missed his opportunity to deliver his own testimony in open court an opportunity to which he was entitled, see Hackley v. Roudebush, supra note 17, 171 U.S.App.D.C. at 418, 520 F.2d at 150, and one that counsel almost certainly would have protected. See text supra at note 12
At the second status conference, the court invited counsel for the Board to file a motion for summary judgment, and told appellant that he could respond to the motion if he so desired. Tr. II 21. If, as appellant maintains, he thought at that time that he would have a chance to testify, he could not have understood the nature or potential consequences of the summary-judgment procedure, and no one attempted to explain them to him. When the Board filed the motion, appellant made no reply to it, and the court granted it without a hearing. R. 11-12. Had appellant been represented by counsel, he hardly would have left a summary-judgment motion unanswered.
21
See, e. g., Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766, 772 (1980)
22
42 U.S.C. § 2000e-5(f)(1) (1976)
23
Coles v. Penny, 174 U.S.App.D.C. 277, 283, 531 F.2d 609, 615 (1976), quoting Shultz v. Louisiana Trailer Sales, Inc., 428 F.2d 61, 65 (5th Cir.), cert. denied, 400 U.S. 902, 91 S.Ct. 139, 27 L.Ed.2d 139 (1970)
24
The provision authorizing appointment of counsel has been a part of Title VII from the time of its enactment. In 1972, Congress amended 42 U.S.C. § 2000e-5 extensively, but retained the appointment provision in its original language. The House Report submitted at that time explained:
By including this provision in the bill, the committee emphasizes that the nature of Title VII actions more often than not pits parties of unequal strength and resources against each other. The complainant, who is usually a member of a disadvantaged class, is opposed by an employer who not infrequently is one of the nation's major producers, and who has at his disposal a vast array of resources and legal talent.
H.R.Rep.No. 92-238, 92d Cong., 1st Sess. 12 (1971) U.S.Code Cong. & Admin. News 1972, 2137, 2148.
25
When, in 1972, Congress extended the period for filing agency-level employment-discrimination complaints from 90 to 180 days after the alleged discrimination, it noted that "aggrieved individuals ... frequently are untrained laymen who are not always aware of the discrimination which is practiced against them ...." Section-by-Section Analysis of S. 2515, The Equal Employment Opportunity Act of 1972, 118 Cong.Rec. 4940, 4941 (1972). We ourselves have recognized that "(t)he scheme established by Congress relies upon laymen, operating without legal assistance, to initiate both administrative complaints and lawsuits." Coles v. Penny, supra note 23, 174 U.S.App.D.C. at 283, 531 F.2d at 615; see also Bell v. Brown, 181 U.S.App.D.C. 226, 230-231, 557 F.2d 849, 853-854 (1977). And the Supreme Court similarly has pointed out that strict enforcement of procedural technicalities is "particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process." Love v. Pullman Co., 404 U.S. 522, 526-527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679, 684-685 (1972)
26
While appointments of counsel are discretionary, the complainant's explicit and unqualified statutory privilege of requesting counsel once in court is no less his right than his statutory option to come there in the first place. The one prerogative is as indefeasible, and in particular situations just as important, as the other
27
See note 22 supra
28
See note 22 supra
29
See 42 U.S.C. § 2000e-16 (1976)
30
See S.Rep.No. 92-681, 92d Cong., 2d Sess. 16-21 (1972) (conference report); H.R.Rep.No. 92-899, 92d Cong., 2d Sess. 16-21 (1972) (same)
31
See generally H.R.Rep.No. 92-238, supra note 24; S.Rep.No. 92-415, 92d Cong., 1st Sess. (1971)
32
The most visible indicium of this congressional concern has always been the express requirement of notice to the affected employee of the final administrative action the so-called "right-to-sue" notice. 42 U.S.C. §§ 2000e-5(f)(1), 2000e-16(c) (1976)
33
S.Rep.No. 92-415, supra note 31, at 27
34
Private-sector complainants were granted that right by Title VII as originally enacted. See 42 U.S.C. § 2000e-5(f)(1) (1976). Federal employees gained the right through the 1972 amendments. See 42 U.S.C. § 2000e-16(c) (1976)
35
42 U.S.C. §§ 2000e-5(f)(1), 2000e-16(c) (1976)
36
42 U.S.C. §§ 2000e-5(f)(1), 2000e-16(c) (1976)
37
See 42 U.S.C. §§ 2000e-4, 2000e-5 (1976). The United States Civil Service Commission originally had primary enforcement responsibility, with power to issue appropriate regulations, for Title VII in its application to the federal sector. See 42 U.S.C. § 2000e-16 (1976). Pursuant to the Reorganization Act of 1977, Pub.L.No. 95-17, 5 U.S.C. §§ 901-912 (Supp. III 1979), those functions were transferred to the Equal Employment Opportunity Commission, effective October 1, 1979. Reorganization Plan No. 1 of 1978, § 3(a), 43 Fed.Reg. 19807-19808 (1978), 92 U.S. Code Cong. & Admin. News, p. 9795 (1978). See Exec. Order No. 12106, 44 Fed.Reg. 1053 (1978)
38
29 C.F.R. § 1601.1 (1979)
39
29 C.F.R. § 1601.28(e)(2) (1979)
40
Equal Employment Opportunity Commission, Compliance Manual (CCH) (1975), P 1068, Ex. 40-A (reproducing Apr. 1973 right-to-sue notice)
41
Citing Griggs v. Duke Power Co., 401 U.S. 424, 433-434, 91 S.Ct. 849, 854-855, 28 L.Ed.2d 158, 165 (1971); United States v. City of Chicago, 400 U.S. 8, 10, 91 S.Ct. 18, 20, 27 L.Ed.2d 9, 12-13 (1970); Udall v. Tallman, 380 U.S. 1, 4, 85 S.Ct. 792, 795, 13 L.Ed.2d 616, 619 (1965)
42
Quoting Power Reactor Dev. Co. v. Electrical Workers Int'l Union, 367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed.2d 924, 932 (1961), in turn quoting Norwegian Nitrogen Prods. Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796, 807 (1933), in turn quoted in Udall v. Tallman, supra note 41, 380 U.S. at 16, 85 S.Ct. at 801, 13 L.Ed.2d at 625
43
Citing General Elec. Co. v. Gilbert, 429 U.S. 125, 140-143, 97 S.Ct. 401, 410-411, 50 L.Ed.2d 343, 357-358 (1976)
44
American Horse Protection Ass'n v. United States Dep't of Interior, 179 U.S.App.D.C. 246, 551 F.2d 432 (1977), last quoting Unemployment Compensation Comm'n v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 250, 91 L.Ed. 136, 145 (1946), in turn quoted in Udall v. Tallman, supra note 41, 380 U.S. at 16, 85 S.Ct. at 801, 13 L.Ed.2d at 625
45
See General Elec. Co. v. Gilbert, supra note 43, 429 U.S. at 141-142, 97 S.Ct. at 410, 50 L.Ed.2d at 357-358
46
Even if the practice had more shortcomings than the one identified in text, it would still retain considerable value in any effort at statutory construction. Cf. Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124, 129 (1944) ("(t)he weight of (an administrative) judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control"). Accord, Batterton v. Francis, 432 U.S. 416, 425 n.9, 97 S.Ct. 2399, 2405-2506 n.9, 53 L.Ed.2d 448, 456 n.9 (1977)
47
See note 37 supra and accompanying text
48
"The Commission shall have authority from time to time to issue, amend, or rescind suitable procedural regulations to carry out the provisions of (Title VII)." 42 U.S.C. § 2000e-12(a) (1976). Surely the underlying regulation, see text supra at note 39, is procedural in character. Compare Coles v. Penny, supra note 23, 174 U.S.App.D.C. at 281, 531 F.2d at 613; Bell v. Brown, supra note 25, 181 U.S.App.D.C. at 231-232, 557 F.2d at 854-855. Cf. General Elec. Co. v. Gilbert, supra note 43, 429 U.S. at 141 n.20, 97 S.Ct. at 410 n.20, 50 L.Ed.2d at 357 n.20 (distinction between procedural and substantive regulations)
49
See note 33 supra and accompanying text
50
See text supra at notes 24-27, 29-36
51
Compare General Elec. Co. v. Gilbert, supra note 43, 429 U.S. at 142-145, 97 S.Ct. at 411-413, 50 L.Ed.2d at 358-360
52
See text supra at note 22
53
See text supra at notes 24-27, 29-40
54
See notes 24, 25 supra and accompanying text
55
See text following note 27 supra
56
See text supra at note 33
57
Suitable advice by the court at the onset of litigation would, of course, suffice for those who actually sue. But, presumably at least, numerous Title VII claimants never venture across the threshold of the courthouse simply because they do not know that, once in, they could ask for counsel
58
As we have noted, that is the point at which the Equal Employment Opportunity Commission informs its claimants of the opportunity to request counsel. See text supra at notes 37-40
59
See text supra at note 37
60
See note 37 supra and accompanying text
61
See note 57 supra
62
Supra note 23
63
Supra note 25
64
42 U.S.C. § 2000e-16(c) (1976)
65
Coles v. Penny, supra note 23, 174 U.S.App.D.C. at 285, 531 F.2d at 617
66
Id. at 283, 531 F.2d at 615
67
Id
68
Id., quoting Huston v. General Motors Corp., 477 F.2d 1003, 1008 (8th Cir. 1973)
69
Bell v. Brown, supra note 25, 181 U.S.App.D.C. at 229-233, 557 F.2d at 852-856
70
Id. at 230, 557 F.2d at 853, quoting Coles v. Penny, supra note 23, 174 U.S.App.D.C. at 283, 531 F.2d at 615, in turn quoting Sanchez v. Standard Brands, 431 F.2d 455, 461 (5th Cir. 1970)
71
181 U.S.App.D.C. at 230, 557 F.2d at 853
72
Id. at 231, 557 F.2d at 854
73
See text supra at note 70
74
See text supra at note 71
75
While we today hold that the duty to inform is the agency's, it would be pointless to remand to the Federal Reserve Board for that purpose. Appellant now knows that he could have requested counsel, and seeks a fresh start in the District Court by doing so. Of course, the fact that the agency has the responsibility of informing unrepresented individuals of the right to request counsel does not mean that the trial courts need never lend a hand. Obviously, the court could easily and very usefully ask of the lay plaintiff whether court-appointed counsel is desired. We do not say that the Act requires the court to do so. We only remind that appeals such as this one could be avoided were the court to inquire on its own
76
Aside from the statement that counsel should be appointed "in such circumstances as the court may deem just," 42 U.S.C. § 2000e-5(f)(1) (1976), Title VII does not prescribe the criteria by which courts should evaluate requests for counsel. We have never done so either, and we will not undertake to do so here. Instead, we leave the matter to the informed discretion of the District Court in the first instance. But see Caston v. Sears, Roebuck & Co., 556 F.2d 1305, 1309 (5th Cir. 1977) (setting forth factors Fifth Circuit deems relevant)
77
As the record now stands, it was his wish as well as his right to testify, and both were lost by failure of understanding and communication. See text supra at notes 11-13 and notes 13, 14, 20 supra | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1316978/ | 221 Ga. 866 (1966)
148 S.E.2d 305
MANOR
v.
THE STATE.
23373.
Supreme Court of Georgia.
Argued February 15, 1966.
Decided March 14, 1966.
Kravitch, Garfunkel & Hendrix, Aaron Kravitch, E. H. Gadsden, John W. Hendrix, for appellant.
Andrew J. Ryan, Jr., Solicitor General, Andrew J. Ryan, III, Arthur K. Bolton, Attorney General, Rubye G. Jackson, Assistant Attorney General, for appellee.
MOBLEY, Justice.
Robert Manor was indicated, tried, and convicted of murder without recommendation and sentenced to death by the Superior Court of Chatham County. From the verdict and judgment he filed his motion for new trial containing the general grounds which was later amended to include twenty eight special grounds. The defendant was indicted, tried, and convicted and filed his motion for new trial all before the effective date of the Appellate Practice Act (Ga. L. 1965, pp. 18-40, 240-244) of August 1, 1965. His amended motion for new trial was filed December 9, 1965. His notice of appeal and enumeration of errors were timely filed, and he enumerated as error each of the grounds of his motion for new trial as amended.
1. In our view of this case it will be necessary only to consider those alleged errors as to failure to give defendant a preliminary or commitment hearing, as we think there was no valid waiver of the hearing, and it was error not to give him a commitment hearing requiring the grant of a new trial. Such *867 of the facts and circumstances and the events prior to the purported waiver of the preliminary hearing by the defendant as are necessary to demonstrate the error will be recounted.
The victim, a spinster nurse, was last seen on Wednesday, September 16, 1964, when she entered her home where she lived alone. She was found the next day lying in a bathtub half filled with water. She was dead, and, according to an autopsy, died of suffocation and drowning; and there was evidence of sexual molestation. Based on facts developed by police officers, a warrant was sworn out for the defendant on the following Sunday; and he was placed under arrest and taken to the police barracks, where the officers interrogated him. After being confronted with the facts the officers had developed, he admitted that he had knocked out a window of the victim's house and entered the house for the purpose of taking things therefrom; that the victim came home while he was in the house and upon seeing him became frightened, and that he choked her to keep her quiet; that when he released her she was limp, so he placed her in the tub and half filled it with water to make it appear that she had drowned. He at first denied taking her clothes and billfold, but after the billfold was found in a catch basin of the sewerage system he admitted taking it and the clothes and having thrown them away. The officers testified that these statements were freely and voluntarily made, after he had been warned that he did not have to say anything, and was entitled to counsel, but he "told us that he didn't need a lawyer; that he could tell us without the lawyer."
Detective Whitten testified that some time Sunday, after the defendant had made his statement to them, the defendant asked him to call attorney Joe Saseen for him, that he did so, and Mr. Saseen was out, but about 9 p. m. he called and said he could not take the case; that on Monday morning he told the defendant that Saseen would not take the case, so he then asked him to call Mr. Eddie Goodwin, an attorney, which he did, and Mr. Goodwin went to see him on Monday. Mr. Goodwin found the defendant naked in his cell and went up and told the officers he would not talk to him in that condition. The officers refused to restore his clothing and Goodwin refused to take his *868 case. Captain Webber, a superior of Whitten's, testified that he ordered that defendant be stripped of his clothing as he appeared very remorseful and he was afraid he might attempt to take his life; that on order of the Chief of Police he returned his clothes to him. Detective Whitten testified that his clothes were taken Sunday afternoon or night and had been returned to him Tuesday morning when he saw him.
Sergeant Taylor, one of the investigating officers, testified in answer to the question, whether he was the officer who told him he-would get off better if he didn't insist on a preliminary hearing that "I only told him that I says, You can wait in the police barracks here until someone is appointed as your attorney, but I understand the attorneys you wanted have refused to take the case; or you can go to court and waive a hearing and go on over to the county jail." And he said, "I will go on to the police court and waive the hearing." He then went before Judge Brennan, the Judge of the Police Court of Savannah, who bound the defendant over to the superior court, and who testified that defendant was not represented by counsel when he came before him; that the notation on his docket showed what the findings of the court were, which notation was "Superior Court, Grand Jury; wants an attorney; waives preliminary hearing." Judge Brennan said he explained to him that Judge Harrison of the Superior Court would be glad to appoint him an attorney and advised him that he should make no decision without the advice of an attorney, and he said "he wanted to go to the higher court; waived preliminary hearing."
Assuming that detectives Whitten and Taylor and the other investigating officers and Judge Brennan acted in the utmost good faith in handling the defendant, it is clear nevertheless, that defendant who was charged with a horrible murder, a capital felony, for which he could be sentenced to death, without the advice of counsel and under compelling circumstances made a crucial decision to waive and did purport to waive a preliminary or commitment hearing before the police court. A commitment hearing is a valuable right which the law gives to one accused of crime. Ga. L. 1956, p. 796 (Code Ann. § 27-210); Code § 27-401 et seq. A lawyer recognizes this fact, for this *869 affords him an opportunity to make the State show its hand by putting up the evidence it has against the accused, which enables him to know what he has to defend against, as well as to protect his client against commitment without sufficient evidence. Savannah News-Press, Inc. v. Harley, 100 Ga. App. 387, 391 (111 SE2d 259). The law gives the defendant a reasonable time for preparation of his case, and in no event shall he be forced to trial without aid of counsel, if there be reasonable probability of his securing counsel without too great delay. Code § 27-403.
On Sunday, the day of his arrest, he tried to get attorney Joe Saseen and failed. On Monday attorney Goodwin, at his request, came to see him, but refused to talk with him in a naked condition and left when the jailer would not give him a pair of pants to put on. Then he is told by Detective Taylor that "you can wait here in the police barracks until someone is appointed your attorney, but I understand the attorneys you want have refused your case, or you can go to court and waive a hearing and go on over to the county jail." And he replied "I will go on to police court and waive hearing," which he did on Thursday.
A person accused of crime may waive a commitment hearing, but a waiver of commitment hearing under such conditions as existed in this case is no waiver, and the purported waiver is a nullity, for the conclusion is inescapable that to get out of the city barracks where he was being held in a cruel and inhumane manner in a naked condition in a steel cell, with a rock floor, a metal bed with no mattress, and to escape this humiliating and intolerable treatment, he agreed with Detective Taylor to waive the hearing and go over to the county jail where he could get counsel appointed. The circumstances under which he waived commitment hearing amounted to duress, such as destroyed the exercise of his own free will and accord in making his decision, and this cannot be recognized as a valid waiver of the hearing.
The defendant was represented by able counsel appointed by the judge of the superior court in all proceedings in that court, and the record makes it crystal clear that the able trial judge *870 made every effort possible to give the defendant a fair and impartial trial; but this did not erase the error and the harm done to the defendant prior to the time he reached the superior court.
2. All the proceedings in this case beginning with the commitment hearing and including indictment, trial, verdict and sentence of the court are nugatory and are hereby declared null and void. The court is directed to quash the indictment, set aside the verdict and judgment; and the defendant must be furnished with counsel, if he is without counsel, and must be given a commitment hearing, if he desires such, and the case may then proceed through the processes of law of bringing him to trial by indictment of a grand jury.
Judgment reversed with direction. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316947/ | 148 S.E.2d 119 (1966)
267 N.C. 276
FIRST NATIONAL BANK OF NEVADA, Executor under the Will of Pearl K. Wells, Planters National Bank & Trust Company and Lillian Kent Dickens, Ancillary Administrators of the Estate of Pearl K. Wells,
v.
Redmond S. WELLS.
No. 539.
Supreme Court of North Carolina.
May 11, 1966.
*121 Joyner & Howison, W. T. Joyner, Jr., Raleigh, Battle, Winslow, Merrell, Scott & Wiley, Rocky Mount, for plaintiffs, appellees.
*122 Poyner, Geraghty, Hartsfield & Townsend and Arch E. Lynch, Jr., Raleigh, for defendant, appellant.
EMERY B. DENNY, Emergency Justice.
The determinative question posed on this appeal would seem to be simply this: Is the devise of real property under a general power of appointment which is included in the gross estate for federal estate tax purposes liable under the law for payment of a pro rata part of the federal estate tax where the will of the devisor contains no express direction regarding the ultimate burden with respect to the payment of such tax?
As we interpret the evidence, the stipulations and findings of fact by the court below, it is uncontradicted by any competent evidence that the estate of Pearl K. Wells had a gross value of $547,467.96 for federal estate tax purposes and that the tax determined to be due, based on the federal estate tax return, was $129,791.03. And, further, that Pearl K. Wells, pursuant to the power of appointment created as hereinabove set out, devised to the defendant, Redmond S. Wells, an undivided interest in real property in North Carolina in fee simple, having a value of $91,208.33, which property was included at such value in the gross estate of Pearl K. Wells for federal estate tax purposes. That this devise represents 16.66% of the value of the gross estate of Pearl K. Wells.
The defendant contends that stipulation No. 3 should be construed as an agreement of counsel that Pearl K. Wells did not have "a general power of appointment" over the North Carolina property involved in this proceeding. As a matter of fact, the stipulation merely identified the estate tax return and stated "the estate tax has been paid on the basis of said return."
Counsel for defendant contends that certain answers to questions in Schedule H of the return tend to show that no power of appointment exists. Even so, an examination of this schedule tends to show both the existence and non-existence of such power. However, the question of the existence and validity of such power is no longer an open question. This Court, in the case of Wells v. Planters Nat. Bank & Trust Co., 265 N.C. 98, 143 S.E.2d 217, settled this question. Sharp, J., speaking for the Court said:
"Did the interest of R. S. Wells in the corpus of the Pearl K. Wells Trust pass to him in fee, freed of the trust, as appointee under the will of Pearl K. Wells? Or did it pass, under the terms of the inter vivos trust, to defendant Bank as trustee for R. S. Wells for life and at his death to his heirs (excluding any adopted child) in fee? The answer is that R. S. Wells owns his share in fee, freed of the trust, as appointee. By the terms of the instrument creating the Pearl K. Wells Trust, the income beneficiary was given a general power of appointment to dispose of the corpus of the trust by her will just as if she herself owned the corpus free of the trust. She could have appointed to her own estate."
The plaintiffs contend they are entitled to recover of the defendant on three separate and alternate grounds, as follows:
1. That under the Federal statute, 26 U.S.C.A. § 2207, the plaintiffs have the right to collect from the defendant the pro rata part of the federal estate tax.
2. In the event it should be held that the Federal statute is unconstitutional or for any reason not applicable, then the plaintiffs contend they are entitled to recover from the defendant under the North Carolina law.
3. That if the lower court erred in concluding that under North Carolina law the defendant is required to pay his pro rata part of the federal estate tax, that such error was harmless because the Nevada law is applicable to this case, and that under the apportionment law of Nevada the plaintiffs are entitled to recover of the defendant his pro rata part of the federal estate tax.
*123 The court below ruled with the plaintiffs on their contentions Nos. 1 and 2, but denied their contention as to No. 3.
Now with respect to contention No. 1. Section 2207 of the Internal Revenue Code (26 U.S.C.A. § 2207) provides in part as follows:
"Unless the decedent directs otherwise in his will, if any part of the gross estate on which the tax has been paid consists of the value of property included in the gross estate under section 2041, the executor shall be entitled to recover from the person receiving such property by reason of the exercise, nonexercise, or release of a power of appointment such portion of the total tax paid as the value of such property bears to the sum of the taxable estate and the amount of the exemption allowed in computing the taxable estate * * *. If there is more than one such person, the executor shall be entitled to recover from such persons in the same ratio. * * *"
It is the position of the defendant that the states have the exclusive right to determine how decedents' estates under their jurisdiction shall be distributed, and that Section 2207 of the Internal Revenue Code infringes this right.
It seems to be the general rule as to probate estates that Congress has left it to the respective states to determine who shall pay the federal estate tax levies.
In the case of Riggs v. Del Drago, 317 U.S. 95, 63 S. Ct. 109, 87 L. Ed. 106, the question posed for determination was, "* * * whether § 124 of the New York Decedent Estate Law, * * * which provides in effect that, except as otherwise directed by the decedent's will, the burden of any federal death taxes paid by the executor or administrator shall be spread proportionately among the distributees or beneficiaries of the estate, is unconstitutional because in conflict with the federal estate tax law."
The New York Court of Appeals held the New York act unconstitutional. (See In re Del Drago's Estate, 287 N.Y. 61, 38 N.E.2d 131.) The Supreme Court of the United States said:
"In the Act of 1916 Congress turned from the previous century's inheritance tax upon receipt of property by survivors * * * to an estate tax upon the transmission of a statutory `net estate' by a decedent. That act directed payment by the executor in the first instance, § 207, but provided also for payment in the event that he failed to pay, § 208. It did not undertake in any manner to specify who should bear the burden of the tax. Its legislative history indicates clearly that Congress did not contemplate that the Government would be interested in the distribution of the estate after the tax was paid, and that Congress intended that state law should determine the ultimate thrust of the tax,"
citing a statement of Congressman Kitchin, Chairman of the House Ways and Means Committee, as follows:
"We levy an entirely different system of inheritance taxes. We levy the tax on the transfer of the flat or whole net estate. We do not follow the beneficiaries and see how much this one gets and that one gets, and what rate should be levied on lineal and what on collateral relations, but we simply levy on the net estate. This also prevents the Federal Government, through the Treasury Department, going into the courts contesting and construing wills and statutes of distribution." 53 Cong.Rec.App. p. 1942.
The Court further said:
"* * * while the federal statute normally contemplates payment of the tax before the estate is distributed, § 822(b) of the Code, 26 U.S.C.A. Int.Rev. Code § 822(b), provision is made for collection of the tax if distribution should precede payment, § 826(a). If any distributee *124 is thus called upon to pay the tax, § 826(b) provides that such person `shall be entitled to reimbursement out of any part of the estate still undistributed or by a just and equitable contribution by the persons whose interest in the estate of the decedent would have been reduced if the tax had been paid before the distribution of the estate'. By that section Congress intended to protect a distributee against bearing a greater burden of the tax than he would have sustained had the tax been carved out of the estate prior to distribution; any doubt that this is the proper construction is removed by the concluding clause of the section specifically stating that it is `the purpose and intent of this subchapter that so far as is practicable and unless otherwise directed by the will of the decedent the tax shall be paid out of the estate before its distribution'. Section 826(b) does not command that the tax is a non-transferable charge on the residuary estate; to read the phrase `the tax shall be paid out of the estate' as meaning `the tax shall be paid out of the residuary estate' is to distort the plain language of the section and to create an obvious fallacy. For in some estates there may be no residue or else one too small to satisfy the tax; resort must then be had to state law to determine whether personalty or realty, or general, demonstrative or special legacies abate first. In short, § 826(b), especially when cast in the background of Congressional intent discussed before, simply provides that, if the tax must be collected after distribution, the final impact of the tax shall be the same as though it had first been taken out of the estate before distribution, thus leaving to state law the determination of where that final impact shall be.
"Respondents also rely on § 826(c) (now 26 U.S.C.A. § 2206), authorizing the executor to collect the proportionate share of the tax from the beneficiary of life insurance includable in the gross estate by reason of § 811(g), and § 826(d), 26 U.S.C.A. Int.Rev.Code, [1940 ed.] § 811(f, g), 826(d) (now 26 U.S.C.A. § 2207) authorizing similar action against a person receiving property subject to a power which is taxable under § 811(f), as forbidding further apportionment by force of state law against other distributees. But these sections deal with property which does not pass through the executor's hands and the Congressional direction with regard to such property is wholly compatible with the intent to leave the determination of the burden of the estate tax to state law as to properties actually handled as part of the estate by the executor.
"Since § 124 of the New York Decedent Estate Law is not in conflict with the federal estate tax statute, it does not contravene the supremacy clause of the Constitution."
The Court held the New York apportionment act constitutional and reversed the New York Court of Appeals.
The case of Fernandez v. Wiener, 326 U.S. 340, 66 S. Ct. 178, 90 L. Ed. 116, involved the constitutionality of a 1942 amendment to the federal estate tax law which provided that the entire value of property (rather than one-half) owned by husband and wife in a community property state would be taxable on the death of either. The constitutionality of the law was challenged on various grounds, one of which was stated by the Court as follows: "And finally the tax is said to invade the powers reserved to the states by the Tenth Amendment, to determine property relationships within their borders."
The Court held that the 1942 law was constitutional. On the question of whether it violated the Tenth Amendment, the Court said:
"The Tenth Amendment does not operate as a limitation upon the powers, expressed or implied, delegated to the national government. * * * The *125 amendment has clearly placed no restriction upon the power, delegated to the national government to lay an excise tax qua tax. Undoubtedly every tax which lays its burden on some and not others may have an incidental regulatory effect. But since that is an inseparable concomitant of the power to tax, the incidental regulatory effect of the tax is embraced within the power to lay it."
We think it is significant that § 2207, relating to power of appointment property, has been in effect since 1942, and 26 U.S. C.A. § 2206, relating to life insurance, has been in effect since 1918 and, having been applied numerous times in the state and federal courts, no case has been cited, and we have found none, in which the question has heretofore been raised as to whether these sections are in contravention of the Tenth Amendment of the Constitution of the United States. We cite the following cases where one or the other of these sections has been applied: In re Duell's Will, 34 Misc. 2d 589, 227 N.Y.S.2d 469; Union Bank & Trust Co. v. Bassett, Ky., 253 S.W.2d 632; Jeromer v. United States, D.C., 155 F. Supp. 851; Union Trust Co. v. Watson, 76 R.I. 223, 68 A.2d 916.
In our opinion the above sections are merely enabling acts to aid executors and administrators to protect probate estates passing through the hands of such executors or administrators, and are not in violation of the Tenth Amendment of the Constitution of the United States. Neither do they infringe upon matters relating to the descent and distribution of decedents' estates or the probate and administration of such estates. Therefore we concur in the decision reached below with respect to contention No. 1, which is in accord with conclusion of law No. 3 hereinabove set out.
In our opinion the court below committed error in holding that the Nevada Apportionment Act was not applicable in this action.
The state of Nevada has a law entitled "Federal Estate Tax Apportionment Law." It was enacted in 1957 and is contained in sections 150.290 through 150.390 of the Nevada Revised Statutes. Insofar as applicable to this case, the method of proration is set forth in Section 150.330(1) as follows:
"The proration shall be made by the court having jurisdiction in probate of any property in the estate in the proportion, as near as may be, that the value of the property, interest or benefit of each such person bears to the total value of the property, interest and benefits received by all such persons interested in the estate."
In In re Gato's Estate, 276 A.D. 651, 97 N.Y.S.2d 171, Gato, a citizen and resident of Florida, established two living trusts in New York. He named Guaranty Trust Company of New York as trustee of one of the trusts and another New York bank as trustee of the other. Gato was to receive the income from both trusts for his life, and after his death his five children were to receive the income for their lives, with remainders over to their issue. Gato died intestate on 8 March 1948. The corpus of these inter vivos revocable trusts created by decedent were included in the gross estate in the tax return for federal estate tax purposes. This appeal involved the trust in which Guaranty Trust Company of New York was trustee.
The Appellate Division of the Supreme Court of New York held: "The Florida court could not exercise jurisdiction over the trustee (in New York) in the absence of its consent, and therefore the New York Supreme Court is the appropriate forum. Nor is it disputed that the New York court will apply the domiciliary law of the decedent in a proceeding wherein instructions are sought concerning apportionment of estate taxes. In the present proceeding the domiciliary law is the law of the State of Florida." This decision was affirmed by *126 the New York Court of Appeals, 301 N.Y. 653, 93 N.E.2d 924.
In the case of Central Hanover Bank & Trust Co. v. Peabody, 190 Misc. 66, 68 N.Y.S.2d 656, it was held that an inter vivos trust created by a testator who died as a resident of Connecticut, the trust property being located in New York and the trustee being a resident of New York, the trust must bear its pro rata share of the federal estate taxes in accordance with the proration formula in the Connecticut statute on apportionment of the federal estate tax.
Likewise, in the case of Re Chase National Bank, Sup., 59 N.Y.S.2d 848, the testator created a trust in New York during his lifetime. He died a resident of Maryland. The court held the Maryland statute on apportionment controlled and was applied by the New York court.
In the case of Re Adams' Estate, Sur., 37 N.Y.S.2d 587, a decedent died a resident of New York. It was held the New York apportionment law was applicable against the devisee of real property situate in New Hampshire.
In Isaacson v. Boston Safe Deposit & Trust Co., 325 Mass. 469, 91 N.E.2d 334, 16 A.L.R. 2d 1277, the testator created a trust in Massachusetts while he was a citizen of Massachusetts. He later moved to Maine and died while a resident of that state. The Massachusetts court refused to apply the domiciliary rule followed by New Jersey and New York. The court said: "The Federal government could have provided for apportionment of the tax, and did so in certain particulars not reaching the question in this case. U.S.C. (1946 ed.) Title 26, § 826(b), (c), and (d), 26 U.S.C.A. § 826(b, c, d)."
The case of First National Bank of Miami v. First Trust Co. of St. Paul, 242 Minn. 226, 64 N.W.2d 524, involved the estate of a testatrix who resided in Florida at the time of her death. The Minnesota court followed the above Massachusetts decision and declined to apply Florida's apportionment law. However, the court apparently was influenced by the fact that it determined it was not the intent of the testatrix for the tax to be apportioned.
In Doetsch v. Doetsch, 312 F.2d 323 (U.S.C.A. 7th Cir.) the decedent was a resident of Arizona. There was included in his estate for federal estate tax purposes a trust whose assets were in Illinois. The plaintiff sought to require the beneficiaries of the Illinois trust to contribute the pro rata part of the federal estate tax. The first question presented to the court was whether the law of Arizona or the law of Illinois was applicable to the question of the proration of the federal estate tax. Since the suit was brought in the state of Illinois, the conflict of laws question was held to be determinable by Illinois law under the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188. After an exhaustive review of the authorities the court held that the law of the domicile of the decedent was controlling; that is, specifically, the court held that the Illinois court would, if presented with the question, decide that the law of Arizona was applicable. In its opinion the court said:
"In our opinion the better rule, and the one which the courts of Illinois would follow, is that adopted in New York and New Jersey. When questions of apportionment of estate taxes arise in courts of a state of the situs of a trust whose assets are includible in decedent's gross estate for tax purposes, the law of the situs refers to the law of decedent's domicile to resolve the questions.
"The rule brings about the desirable result of uniform treatment of all those who benefit from the property included in decedent's gross estate for tax purposes, for regardless of the situs of the property there is a single point of reference decedent's domicile."
For other decisions in accord with the New York rule, see Anno.: Estate TaxAllocationLaw Governing, 16 A.L.R. 2d 1282; In re Gallagher's Will, 57 N.M. 112, *127 255 P.2d 317, 37 A.L.R. 2d 149; Trust Co. of Morris County v. Nichols, 62 N.J.Super. 495, 163 A.2d 205.
We concur in the view of the court below that the Nevada decree with respect to apportionment was not binding on this defendant, since that court had no jurisdiction over him. However, when these plaintiffs came into North Carolina and instituted this action, in our opinion they are entitled to the relief they seek under 26 U.S.C.A. § 2207, as well as under the apportionment statute in effect in Nevada, and we so hold.
In view of the foregoing conclusion, we deem it unnecessary to consider whether or not the tax involved is apportionable under the decisions of this jurisdiction. Even so, this Court has heretofore recognized and applied the doctrine of equitable contribution with respect to gift taxes. Nebel v. Nebel, 223 N.C. 676, 28 S.E.2d 207. This doctrine was cited with approval in Cornwell v. Huffman, 258 N.C. 363, 128 S.E.2d 798.
The defendant contends that if interest is allowed at all, it should be allowed only from 30 January 1965, the date this defendant received a letter from the executor of decedent's estate making formal demand for payment of a pro rata part of the federal estate tax. On the other hand, the plaintiffs contend, and according to the facts found, a copy of the first annual account and report rendered by the executor was sent to defendant by certified mail on 24 October 1963. It was further found that said first account and report constituted notice to defendant of the claim of the executor that the defendant owed to the estate the pro rata part of the federal estate tax attributable to the value of the property which he received by virtue of the exercise of the power of appointment by Pearl K. Wells. There was no exception to the foregoing findings of fact.
In the absence of any evidence tending to show that the executor was not diligent in converting assets of the estate into cash for the payment of the federal estate tax, we hold that this defendant is liable under the doctrine of equitable contribution for his pro rata part of the interest as decreed in the judgment entered below.
The assignments of error directed to the matters discussed in this opinion, as well as the remainder of the assignments of error not discussed, present no prejudicial error which in our opinion would justify the relief sought by the defendant, and they are overruled.
Except as modified herein, the judgment of the court below will be affirmed.
Modified and affirmed.
MOORE, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1317001/ | 207 Va. 194 (1966)
JESSIE JAMES FREEMAN
v.
C. C. PEYTON, SUPERINTENDENT OF THE VIRGINIA STATE PENITENTIARY.
Record No. 6138.
Supreme Court of Virginia.
June 13, 1966.
John D. Gray for the appellant.
Present, Eggleston, C.J., and Spratley, Snead, I'Anson, Carrico and Gordon,
1. After preliminary hearing on the charge of burglary for which he was arrested, Freeman escaped from jail and while a fugitive was indicted for this crime and others as well. He contended, in habeas corpus proceedings after conviction of these crimes, that he was denied his constitutional rights because he did not have preliminary hearings on the other charges. This contention was rejected on the authority of prior decisions.
2. Freeman argued that he had not been given a plenary hearing in the habeas corpus proceeding because the judge ruled on only two of his seven contentions. But the judge's denial of the writ was a ruling on all points raised, and he was not required to state his reasons as to all.
Appeal from an order of the Circuit Court of the city of Hampton. Hon. Frank A. Kearney, judge presiding. The opinion states the case.
Reno S. Harp, III, Assistant Attorney General (Robert Y. Button, Attorney General, on brief), for the appellee.
GORDON
GORDON, J., delivered the opinion of the court.
This is an appeal from an order entered August 10, 1964 denying Freeman's petition for a writ of habeas corpus. Freeman asks us to *195 reverse the order because (1) he did not have a preliminary hearing on all the felony charges against him, and (2) the court failed to give him a full and complete hearing on his petition for a writ of habeas corpus. We affirm the order for the reasons to be set forth after a brief statement of the facts and proceedings.
Freeman was arrested November 2, 1961 on a warrant charging burglary on November 1, 1961. On November 10, 1961 he was given a preliminary hearing on this charge and bound over to the grand jury. He escaped from jail on November 16, 1961. The grand jury convened December 5, 1961, while Freeman was at large, and returned sixteen separate indictments against him for burglary and attempted burglary on various dates. In January 1962 Freeman surrendered to the Hampton police. He was tried in the Circuit Court of the City of Hampton on ten of the sixteen indictments and convicted of all ten charges.
Freeman subsequently filed a petition in the Circuit Court of the City of Hampton challenging these convictions and seeking a writ of habeas corpus. By order entered July 16, 1963, the Circuit Court dismissed the petition without a plenary hearing. By order entered January 20, 1964, we remanded the case to the Circuit Court with direction to grant Freeman a plenary hearing if he was then detained pursuant to the judgment of which he complained.
A plenary hearing was held in the Circuit Court on July 21, 1964. After hearing evidence and arguments of counsel, the Judge announced his decision to deny Freeman's petition for a writ of habeas corpus. Freeman's counsel prosecuted this appeal from the order entered August 10, 1964 carrying out that decision.
As noted, Freeman was arrested on a warrant charging burglary on November 1, 1961. He admits he was given a preliminary hearing on that charge. He argues, however, that he was denied his constitutional rights because he had no preliminary hearing on the other charges for which he was indicted. He makes this argument even though he was not arrested on the other charges and even though the indictments were returned while he was a fugitive. We reject this argument for reasons set forth in Webb Commonwealth, 204 Va. 24, 129 S.E.2d 22 (1963).
Turning to the second point, we find from the record that Freeman's counsel was permitted to bring forth all evidence that he desired to introduce at the plenary hearing on July 21, 1964, and that he was not denied the right to make full argument to the court. In fact, counsel does not complain he was denied the rights to introduce *196 evidence and to be heard. He argues Freeman was denied a full and complete hearing because the Judge ruled on only the first two questions raised by Freeman's petition: whether Freeman had been effectively represented by counsel at his criminal trials, and whether he was denied his constitutional rights because preliminary hearings were not held on all charges against him. Counsel asserts that the Judge failed to rule on the other seven questions raised in Freeman's petition.
Freeman's counsel fails to distinguish, however, between failure to rule and failure to announce reasons for a ruling. By entering the order of August 10, 1964 denying the writ of habeas corpus and dismissing Freeman's petition, the Judge ruled on all points raised in the petition. The Judge saw fit to state reasons for rejecting two of the alleged grounds for granting the writ, and he saw fit to refrain from stating reasons for rejecting the other seven alleged grounds. He may have refrained because he thought the reasons self evident. In any event, he was not required to give his reasons.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316991/ | 113 Ga. App. 528 (1966)
148 S.E.2d 919
SPARKS
v.
BUFFALO CAB COMPANY, INC.
41894.
Court of Appeals of Georgia.
Argued April 4, 1966.
Decided April 25, 1966.
*529 Northcutt & Edwards, John Ray Nicholson, for appellant.
Ross & Finch, Homer A. Houchins, Jr., for appellee.
BELL, Presiding Judge.
"To hold a master liable for a tort committed by his servant, it must appear that at the time of the injury the servant was engaged in the master's business and not upon some private and personal matter of his own; that is, the injury must have been inflicted in the course of the servant's employment." Wilson v. Quick-Tire Service, 32 Ga. App. 310, *530 311 (123 S.E. 733); Corum v. Edwards-Warren Tire Co., 110 Ga. App. 33 (1) (137 SE2d 738). "For a tort committed by the servant entirely disconnected from the service or business of the master, the latter is not responsible under the doctrine of respondeat superior, although it may occur during the general term of the servant's employment." Fielder v. Davison, 139 Ga. 509, 512 (77 S.E. 618).
The supporting affidavit in this case showing that defendant's employee was engaged in the return trip from a visit to his family and that he was not working for his employer at the time but was preoccupied with a personal enterprise of his own was clear, positive and uncontradicted evidence sufficient to pierce plaintiff's allegations predicating defendant's liability upon the doctrine of respondeat superior. "Where a servant, while not engaged in the performance of his master's business, and during a time when he is free to engage in his own pursuits, uses his master's automobile for his own purposes (although he does so with the knowledge and consent of his master), and, while so using it, negligently injures another by its operation, the master is not liable for the injuries." Eason v. Joy Floral Co., 34 Ga. App. 501 (1) (130 S.E. 352). See also Harmon v. Southeastern Compress &c. Co., 48 Ga. App. 392 (172 S.E. 748). Davies v. Hearn, 45 Ga. App. 276, 278 (164 S.E. 273); Starr & Sons Lmbr. Co. v. York, 89 Ga. App. 22, 25 (78 SE2d 429); F. E. Fortenberry & Sons v. Malmberg, 97 Ga. App. 162, 165 (102 SE2d 667); Ayers v. Barney A. Smith, 112 Ga. App. 581 (145 SE2d 753), and other cases cited by plaintiff have no application here. In each of the named cases there was evidence authorizing the conclusion that the employee's activities were not entirely disconnected from his employment. Note that a portion of the court's ruling in Fortenberry & Sons v. Malmberg, supra, p. 169, was expressly disapproved in Corum v. EdwardsWarren Tire Co., supra, p. 35.
Plaintiff did not present any evidence showing that Walker's operation of defendant's automobile at the time of the collision had any connection whatsoever with Walker's employment. "The time for the party opposing the motion to present relevant evidence or show satisfactory reasons for the nonproduction is *531 at the time of the hearing on the order to show cause, and if this is not done, it is too late to complain later. Scales v. Peevy, 103 Ga. App. 42 (2) (118 SE2d 193); Studsill v. Aetna Cas. &c. Co., 101 Ga. App. 766, 768 (115 SE2d 374)." King v. Fryer, 107 Ga. App. 715, 717 (131 SE2d 203).
The trial court did not err in granting summary judgment for defendant.
Judgment affirmed. Jordan and Eberhardt, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1317004/ | 222 Ga. 76 (1966)
148 S.E.2d 392
MORRIS
v.
JOHNSON.
23402.
Supreme Court of Georgia.
Submitted March 15, 1966.
Decided April 7, 1966.
Rehearing Denied April 19, 1966.
W. D. Moon, Jr., Frank M. Gleason, for appellant.
John E. Wiggins, for appellee.
ALMAND, Justice.
Mrs. J. L. Morris, as the widow and sole heir at law of J. L. Morris, brought her petition against Mrs. Estelle Johnson, in which she prayed that a deed executed by her husband to the defendant three days before his death conveying a described tract of land in Catoosa County, be canceled because her husband had never delivered the deed to the defendant, and it was without any consideration. Subsequently, the petition was amended by adding five counts. The general demurrers to the six-count petition were sustained. On review, this court affirmed the court's rulings in counts 1, 3 and 6 *77 and reversed as to the other three counts. See Morris v. Johnson, 219 Ga. 81 (132 SE2d 45). A full statement of the allegations and contentions of the plaintiff may be found in that report.
The case came on for trial before the court and jury for a determination of the following issues raised by the pleadings: (1) was there a lack of delivery of the deed in that the defendant held the deed after its proper execution only for safe keeping pending further negotiation; (2) whether the defendant obtained possession of the deed by fraud; and (3) whether actual delivery of the deed was ever made because no agreement had been reached between the grantor and grantee as to the consideration the defendant was to pay.
On the trial, the jury returned its verdict in favor of defendant. The plaintiff's motion for a judgment notwithstanding the verdict and her motion for a new trial on the general grounds and nine special grounds were overruled. In her appeal, error is enumerated on these orders.
1. The main and decisive question in the case was: did the evidence demand a finding by the jury that no delivery had been made by the grantor to the defendant grantee of the deed? (a) Our review of the evidence is that it did not demand a finding in favor of the plaintiff, and it was not error to overrule the motion for a judgment notwithstanding the verdict. (b) There was sufficient evidence to support the jury's verdict that a delivery had been made, and the general grounds of the motion for a new trial are without merit.
2. A witness for the defendant was allowed to testify, over objection, that her brother, the grantor in the deed, had stated on several occasions that he was going to give the property (conveyed by the deed) to the defendant. Ground 1 asserts the admission of this testimony was error because (a) it was hearsay, (b) it was inadmissible because it was a transaction after the death of the grantor with an opposite party and (c) it varied the terms of the deed.
A mere recitation of these grounds shows their want of merit.
3. It was not error to refuse the admission in evidence of the original petition of the plaintiff as asserted in ground number two. The original petition as a part of the pleadings was before the jury without formal introduction.
*78 4. The third special ground asserts that the court erred in refusing to admit in evidence the deposition of the defendant taken at the instance of the plaintiff. The objection that the defendant was in court was sustained. It appears from the record that the defendant was fully cross examined as to her previous answers in the deposition, and no harm was occasioned in refusing to allow the deposition in evidence.
5. Grounds four and five assert that the court erred in refusing to allow the plaintiff on cross examination to testify, over objection by the defendant, that she, the grantee in the deed, had agreed that the consideration for the deed would be a matter for future determination. It appears from the record that the evidence, which was excluded, was later admitted without objection. This ground is without merit.
6. The court charged the jury as follows: "Now I charge you in reference to the delivery of a deed that the delivery of a deed is, simply is transferring the possession of the deed by the Grantor to the Grantee with the purpose and intent of consummating the transaction, closing the transaction, placing the Grantee, that's the defendant in this case, in possession of the evidence of title, deed is simply evidence of title for the purpose of conveying the deed from the, the title from the Grantor to the Grantee and if you find that that was done here, irrespective of the amount of the consideration or irrespective of the length of time prior to the demise of the Grantor then there would be a delivery. And if there was a delivery, why then you should return a verdict in this case for the defendant in the case." Ground six asserts that this charge was erroneous, unsound and contains an incorrect statement of the law.
Ground seven asserts that the court failed to charge on the controlling issue as to whether there had been a delivery of the deed. Subsequent to the charge complained of in ground number six, the court charged the jury as follows: "Delivery of a deed, I will repeat, I don't mean to emphasize anything that I have already said, but delivery of a deed simply consummates the transaction whereby the title passes from one person to another person with that intent. A deed might be deposited, it might be deposited in escrow; and what escrow means is put into the hands *79 of some third person to be delivered after the happening of some contingency, that is referred to as an escrow. A deed could be delivered in escrow, a deed might be left with the grantee, after the deed is executed and signed and witnessed and so on. A deed could be left with the grantee in the nature of a bailee and without any intention of consummating the transaction, and without the intent or purpose to deliver it in the way and manner required by law to convey the title. If it's left there for some other purpose, and that purpose is understood by the parties, that it's not intended as a delivery to convey the title, it would not be, it's a question of the intent of the parties."
There is no merit in these grounds.
7. We have examined ground number eight complaining of the court's refusal to grant a mistrial for a remark made by counsel for the defendant before the jury and ground number nine complaining of the court's remarks to the jury after their retirement for consideration of the case and upon their request as to whether they could consider the deposition of the defendant which the court had refused to admit into evidence. Neither of these grounds has any substance or merit.
It was not error to overrule the amended motion for a new trial.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1316998/ | 9 Kan. App. 2d 287 (1984)
676 P.2d 1300
JAMES CAPLINGER, SR., and JAMES CAPLINGER, JR., Appellants,
v.
CHARLES R. CARTER, III, THOMAS HREN, PHIL TALIAFERRO, FRED HOWARD, and THE CITY OF TOPEKA, Appellees.
No. 55,455
Court of Appeals of Kansas.
Opinion filed February 2, 1984.
Charles D. McAtee and Anne L. Baker of Eidson, Lewis, Porter & Haynes, of Topeka, for appellants.
Wilburn Dillon, Jr., of Topeka, for appellees Charles R. Carter, III, Phil Taliaferro and Thomas Hren.
Robert E. Duncan, II, of Topeka, for appellee City of Topeka.
George E. Erickson, Jr., of Topeka, for appellee Fred Howard.
*288 Before SPENCER, P.J., JEROME HARMAN, C.J. Retired, assigned, and STEVEN P. FLOOD, District Judge, assigned.
Petition for review denied 235 Kan. 1041.
FLOOD, J.:
This is an appeal from the trial court's failure to rule on plaintiffs' (James Caplinger, Sr., and James Caplinger, Jr.) motion to dismiss and the granting of a motion for summary judgment in favor of all defendants.
When summary judgment is challenged on appeal, we must read the record in the light most favorable to the party who defended against the motion. McAlister v. Atlantic Richfield Co., 233 Kan. 252, Syl. ¶ 4, 662 P.2d 1203 (1983). With this in mind, we recite only those facts most favorable to the plaintiffs, as drawn from defendants' uncontroverted statement of facts in their motions.
On September 27, 1979, plaintiffs were passengers in a car driven by Mark Caplinger. After observing Mark Caplinger back into an intersection, Topeka police officers Hren and Smith stopped the car and commenced administering field sobriety tests to the driver.
During this time, Caplinger, Sr., and Caplinger, Jr., exited the car. Caplinger, Sr., was grabbed from behind, thrown to the ground, handcuffed, and dragged to the police car by Officer Hren. Caplinger, Jr., was grabbed from behind, choked, and handcuffed by Officer Carter. Later, in the police car, Officer Carter grabbed Caplinger, Jr., by the neck and pushed his head into a shotgun, causing a cut above the eye.
All three Caplingers were taken to the city police station. While in an elevator going from the first to the second floor, Officer Carter rubbed the head of Caplinger, Jr., against the wall, reopening his cut. After booking, Officer Taliaferro pushed Caplinger, Jr., over three chairs, shoved him against a wall, and struck him numerous times.
After booking, Caplinger, Sr., argued with officers about signing bail for his son Mark. As a result, Officer Taliaferro, with the assistance of another officer, carried him to the elevator, threw him on the floor, and Taliaferro kicked him several times.
The Caplingers testified by deposition that these actions were unprovoked and unjustified. The officers contended that the incidents never happened or were provoked but, because of the summary judgment, we are bound by the Caplingers' version.
In the criminal proceedings, Caplinger, Sr., was convicted of one count of obstruction of official duty in administration of field *289 sobriety tests, and acquitted of two counts of disorderly conduct. Caplinger, Jr., was convicted of one count of disorderly conduct at the scene of the arrest and acquitted of a charge of obstruction of official duty and a charge of disorderly conduct at the police station.
On September 26, 1980, plaintiffs filed suit in Federal District Court for the District of Kansas, alleging violation of their civil rights under 42 U.S.C. § 1983 (1976), common law battery, and the tort of outrage. They filed for identical relief in Shawnee County District Court on September 29, 1980.
The parties, in their briefs, raise numerous procedural matters which require an examination of the progress of the litigation. As we perceive it, the plaintiffs were attempting to keep both the federal and state actions pending until they were in a position to select the most favorable forum. The defendants were trying to prevent this approach. Such maneuvering usually leads to the problems which developed in this case.
On February 18, 1982, at a pretrial conference in state court, the trial judge set a discovery cutoff of July 15, 1982. At that time, plaintiffs' attorney advised the judge that he would shortly dismiss one of the two actions. Defendants, on March 15, 1982, filed a motion in federal court to force dismissal of the federal action. Plaintiffs then, on March 29, 1982, filed a motion in state court to dismiss the state action. The motion was initially granted, but then rescinded when defendants objected because Officer Hren had a counterclaim against Caplinger, Sr., for injury to his hand. Plaintiffs filed a renewed motion to dismiss on May 28, 1982, in state court. This motion was supplemented by a memorandum on September 10, 1982.
In the meantime, plaintiffs were seeking in federal court to discover personnel files of the involved police officers. Plaintiffs hoped to establish from such files knowledge on the part of the police chief, Fred Howard, and the City of Topeka, of prior conduct of the involved officers which would impose liability on their superior and the City. A federal magistrate granted this discovery, but defendants appealed to the federal district judge who has not yet ruled on this discovery. We do not, of course, have access to the federal court file and our knowledge of the steps taken in federal court comes from the briefs and oral arguments.
*290 Discovery time in state court lapsed July 15, 1982. Defendants filed their motions for summary judgment on August 10, 13, and 16, 1982. Plaintiffs filed a motion to compel discovery on August 17, 1982. On September 30, 1982, the district court granted all defendants' motions for summary judgment. A motion to reconsider was filed October 11, 1982, and denied January 11, 1983. On February 9, 1983, plaintiffs filed their notice of appeal.
Appellees initially challenge the jurisdiction of this court, claiming the motion to reconsider dated October 11, 1982, is a motion for relief from a final judgment under K.S.A. 60-260(b). If so, it would not stay the time for filing an appeal under K.S.A. 60-2103(a) and the appeal filed on February 9, 1983, is untimely. The motion to reconsider challenged the court's reasoning in the summary judgment decision. The relief sought was obviously a motion to alter or amend judgment under K.S.A. 60-259(f). In deciding that a motion for rehearing is in fact a motion to alter or amend judgment, we must look through form to substance. Ten Eyck v. Harp, 197 Kan. 529, 533, 419 P.2d 922 (1966). This appeal was timely filed and we have jurisdiction.
Additionally, appellees contend that the doctrine of collateral estoppel should be applied because of the plaintiffs' criminal convictions, to bar any action they now have based upon the defendants' conduct at the scene of the accident. One essential element of collateral estoppel is that the issue to be determined in this suit must actually have been determined and necessary to support the judgment in the prior action. Williams v. Evans, 220 Kan. 394, Syl. ¶ 2, 552 P.2d 876 (1976). Underlying the plaintiffs' causes of action in this case is a claim of excessive and unreasonable use of force by the officers in making their arrests. Assuming some evidence of excessive force was introduced in the criminal trials, a finding by the jury that the force used was reasonable would not be necessary to support a conviction of obstruction of official duty or disorderly conduct. In any event, plaintiffs' conduct, as shown by the convictions, would not justify use of excessive force after the arrests had been effected. See Courtney v. Reeves, 635 F.2d 326, 329 (5th Cir.1981). Plaintiffs' claims are not barred by collateral estoppel.
We turn now to appellants' contention that the trial court erred in failing to allow dismissal of plaintiffs' action without prejudice, and in granting summary judgment to all defendants.
*291 Appellants' first motion to dismiss was granted but then reinstated when defendants objected because of Officer Hren's counterclaim. Appellants renewed their motion, but failed to support it with a memorandum or certify it as ready for ruling as required by Shawnee County District Court Rule 3.301.
Appellants finally supported their motion with a memorandum on September 10, 1982, but this was after summary judgment motions had been filed. The trial court never did rule on plaintiffs' second motion to dismiss until the decision on rehearing on January 11, 1983, when the court noted that, because discovery was complete and trial was at hand, there was no reason to sustain the motion.
After an answer has been filed, a plaintiff may not dismiss his action without court approval. K.S.A. 60-241(a)(1). If a counterclaim has been pled, the action cannot be dismissed over the defendant's objection "unless the counterclaim can remain pending for independent adjudication by the court." K.S.A. 60-241(a)(2). Such dismissal is discretionary with the court, but should be allowed unless the defendant will suffer some plain legal prejudice other than the mere prospect of a second lawsuit. Gideon v. Bo-Mar Homes; Inc., 205 Kan. 321, Syl. ¶ 3, 469 P.2d 272 (1970).
The counterclaim of Officer Hren was for battery, seeking actual and punitive damages from James Caplinger, Sr., as a result of allegedly being kicked in the hand. The trial court had jurisdiction over Caplinger, Sr., and Officer Hren, and subject matter jurisdiction over the common law tort. The counterclaim could have remained pending for independent adjudication. In May of 1982, the plaintiffs were trying to elect their forum. Officer Hren had the same choice. The court should have allowed both to exercise this choice.
Where extensive discovery has taken place, the plaintiff has been dilatory, and the case is ready for disposition by summary judgment, the court would not err in denying a motion to dismiss. Pace v. Southern Express Company, 409 F.2d 331 (7th Cir.1969). Since we hold that summary judgment, in part, was not proper and we therefore reverse, we suggest that the trial court on remand consider motions to dismiss again under these principles.
We turn now to the lower court decision granting all defendants *292 summary judgment. Summary judgment should not be entered where the opposing party is proceeding with due diligence with pretrial discovery but has not had an opportunity to complete it. Timmermeyer v. Brack, 196 Kan. 481, Syl. ¶ 1, 412 P.2d 984 (1966). In this case, plaintiffs desired access to the personnel files of the defendant officers before deposing these defendants. Plaintiffs hoped these files would reveal other acts of excessive force by defendants, tending to show a pattern known to the City and the police chief. Plaintiffs had knowledge of at least two other lawsuits involving some of the defendants which would give rise to this suspicion. Plaintiffs had pursued this discovery in the federal court action, but had so far been stopped by defendants' objections. This was the basis for plaintiffs' motion to compel additional discovery filed August 17, 1982.
However, plaintiffs had done little discovery in the state court action and had allowed a limitation on discovery set by the court for July 15, 1982, to expire. "The control of discovery is entrusted to the discretion of the trial court." Commercial Union Ins. Co. v. City of Wichita, 217 Kan. 44, 55, 536 P.2d 54 (1975). We are not prepared to say that the court abused its discretion in adhering to the discovery limitations established in February of 1982. The summary judgment decision cannot be overturned simply because discovery was incomplete.
Summary judgment was granted all defendants on plaintiffs' third cause of action, alleging the tort of outrage. The tort of outrage has certain threshold requirements which must be determined as a matter of law before the case can be submitted to trial on the facts. Among these is that the plaintiff must suffer mental distress which is extreme and severe. Roberts v. Saylor, 230 Kan. 289, 292, 637 P.2d 1175 (1981). Neither Caplinger had sought treatment for mental distress, and no professional witness was prepared to testify in their cases to such a condition. Caplinger, Jr., testified that he was in "total shock" and that he has a continuing fear of police officers. Caplinger, Sr., opined that his son should have psychiatric treatment. At most, the evidence supports anger, resentment and hurt feelings found insufficient in Roberts v. Saylor. We agree with the trial court that the threshold requirements were not met and summary judgment should have been granted as to the tort of outrage.
The trial court also granted summary judgment for all defendants *293 on the plaintiffs' first cause of action for violation of their civil rights under 42 U.S.C. § 1983 (1976), and their second cause of action for battery. In this we think the trial court erred.
We reiterate that, for purposes of a motion for summary judgment, we must take the Caplinger testimony concerning what occurred as true and disregard contrary testimony from the officers. In the Caplinger version, they were beaten and kicked, not only during the arrest but at the police station after their release from custody. The attacks were unjustified and unprovoked, and clearly the result of excessive and unreasonable force.
In King v. Blankenship, 636 F.2d 70, 72 (4th Cir.1980), it was said:
"It has been widely held that the unjustified striking, beating, or infliction of bodily harm upon a prisoner by the police or a correctional officer gives rise to liability under 42 U.S.C. § 1983."
Quoting from Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973), the court went on to say:
"`In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.'" 636 F.2d at 73.
See generally 60 A.L.R. Fed. 204, 211.
The reasonableness of the force used in making an arrest under all the circumstances is a question for the jury. Hamilton v. Chaffin, 506 F.2d 904 (5th Cir.1975); Conklin v. Barfield, 334 F. Supp. 475 (W.D. Mo. 1971).
The trial court reached the conclusion that in this case the force used was not excessive and was taken in good faith with the belief that it was legal. Thus, the court concluded, following Samuel v. Busnuck, 423 F. Supp. 99 (D. Md. 1976), that no 1983 violation could exist. In reaching this conclusion, the trial court had to balance the testimony of the officers against that of the Caplingers. On a motion for summary judgment, the court cannot weigh the evidence.
Police Chief Fred Howard and the City of Topeka cannot be liable in a 42 U.S.C. § 1983 (1976) action under the traditional theory of respondeat superior. Hampton v. Holmesburg Prison *294 Officials, 546 F.2d 1077 (3d Cir.1976). However, Fred Howard could be liable if he was aware of a history of complaints against the officers and failed to control his subordinates. Donaldson v. Hovanec, 473 F. Supp. 602, 608 (E.D. Pa. 1979). The City cannot be liable unless its knowledge, actual or constructive, of the officer's conduct reveals a pattern of activity amounting to a governmental custom or practice. Koch v. Schneider, 550 F. Supp. 846, 852 (N.D. Ill. 1982).
Admittedly, the plaintiffs' evidence concerning the City and Fred Howard is weak, perhaps in part because they cannot get access to the personnel files. In response to defendants' motion for summary judgment, plaintiffs filed an affidavit setting forth two prior lawsuits involving police misconduct in using excessive force against these same officers, which the City had settled. The Caplingers testified to other similar incidents within their knowledge. There are some facts, therefore, on which liability could be established against the City or Howard, and some factual dispute remains on this issue.
Plaintiffs' second cause of action was for battery. The trial court found immunity under the Kansas Tort Claims Act, K.S.A. 1983 Supp. 75-6101 et seq. Specifically, the court cited three exceptions from 75-6104, which are as follows:
"A governmental entity or an employee acting within the scope of the employee's employment shall not be liable for damages resulting from:
....
"(c) enforcement of or failure to enforce a law, whether valid or invalid, including, but not limited to, any statute, regulation, ordinance or resolution;
"(d) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion be abused;
....
"(m) failure to provide, or the method of providing, police or fire protection."
When this case was decided, the trial court did not have the benefit of the decision of the Supreme Court in Dauffenbach v. City of Wichita, 233 Kan. 1028, 667 P.2d 380 (1983). While Dauffenbach was a pre-tort claims act case, it is important to note that the court there said:
"It is not the duty of a law enforcement officer to punish a suspect by using unreasonable force or to wantonly or maliciously injure the suspect. A public citizen should be compensated when unreasonable force by a law enforcement officer causes an injury whether the injured party is a pillar of the community, an incoherent drunk or mentally ill." 233 Kan. at 1035.
*295 Since the Kansas Tort Claims Act is "open ended," Dauffenbach would establish the rule of liability, absent an exception. The only case decided by our courts construing the Tort Claims Act as it relates to law enforcement is Robertson v. City of Topeka, 231 Kan. 358, 644 P.2d 458 (1982).
In Robertson, police officers were advised that a trespasser was in a house threatening to burn it down. Instead of arresting the suspect, the officer suggested that the property owner leave, and fifteen minutes later the house burned. The court held that the decision not to arrest was a discretionary function, noting that it was the nature and quality of the discretion which were to be examined, and not the status of the person exercising it. As an independent basis for the decision, the court noted that the duties to keep the peace and to arrest, accordingly, are duties owed to the general public and not to the individual complaining.
Dauffenbach would seem to create an individual duty not to act with excessive force. Moreover, it is difficult to conceive the idea that an intentional beating involves any kind of discretion. In Robertson, the court looked to the Federal Tort Claims Act for guidance in interpreting the discretionary function in the Kansas Act. 231 Kan. at 360-62. The Federal Act contains a particular exception for intentional torts, including assault and battery, which the Kansas Act does not contain. 28 U.S.C. § 2680(h) (1976).
We do not believe any of the exceptions contained in the Kansas Tort Claims Act were intended to permit police officers to violate the prohibition in Dauffenbach that they shall not use unreasonable force.
The trial court's summary judgment for defendants as to the plaintiffs' third cause of action is affirmed. The summary judgment as to plaintiffs' first and second causes of action is reversed and remanded for further proceedings. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1317033/ | 497 S.E.2d 821 (1998)
230 Ga. App. 881
BANKS
v.
The STATE.
No. A97A2144.
Court of Appeals of Georgia.
March 3, 1998.
*822 David D. Banks, pro se.
Hagler, Hyles, Adams & McKenna, Clark C. Adams, Jr., Columbus, for appellant.
John G. Conger, District Attorney, Melvin E. Hyde, Jr., Assistant District Attorney, for appellee.
ANDREWS, Chief Judge.
David D. Banks appeals from his convictions of DUI (less safe to drive) and burglary.
1. The first two enumerations deal with sufficiency of the evidence and are considered together.
"`On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence.' (Citations and punctuation omitted.) Curtis v. State, 208 Ga.App. 720, 721, 431 S.E.2d 719 (1993)." Etienne v. State, 219 Ga.App. 95, 97(2), 464 S.E.2d 396 (1995).
So viewed, the evidence was that Officer Lewis was on patrol and stopped at a red light on November 23, 1995 (Thanksgiving), around 3:00 a.m. when he noticed a man standing near the Cotton Exchange, a retail store, smoking a cigarette. He was looking at the man, later identified as co-defendant Toney, when Toney looked up and saw the officer. Toney then turned around and went down the alley beside the building. The Cotton Exchange shared a parking area with another shop, a dental clinic, and an apartment duplex and Officer Lewis, finding the conduct suspicious, drove his patrol car into the alley where he saw a car with its trunk up and two other men,[1] along with Toney. He returned to the front of the Cotton Exchange and summoned backup. The car was then blocked in by the officers, even though the car had begun moving toward the street. Banks was driving the car with Toney in the front seat and Parris in the back seat. In the back of the car, officers found a fax machine and another piece of office equipment. In the trunk, officers found a large screwdriver. Upon checking the area, the officers found that the padlocks and hinges on the door of the storeroom behind the Cotton Exchange had been torn off. Inside the storeroom were old office machines. Wade, the owner of the business, identified the fax machine as having been taken from the storeroom. He also said that he walked by the storage room daily when he emptied the trash and that he would have noticed if the storeroom had been disturbed. His business, which had opened on November 11, 1995, was full of stock for the holiday season and he was open the day before Thanksgiving.
The officers also found a manhole cover on the side of the Cotton Exchange, about three feet from the plate glass windows across its front. There were no manholes missing covers in the vicinity.
Officer Lewis noticed a strong smell of alcohol on Banks and that his eyes were bloodshot. Banks resisted getting into the police car and refused to perform an alcosensor *823 test. Officer Lewis opined that Banks was less safe to drive and he was arrested for DUI. Upon arriving at the police station, Deputy Swindall, the Intoximeter 5000 operator, noticed that Banks' speech was slurred, he was loud and boisterous, slightly staggering, and smelled of alcohol. Also, his eyes were glassy and bloodshot. Banks refused to take the test.
Toney had been arrested before by Officer Lewis in November 1992. During that incident, a manhole cover had been thrown through the plate glass window of a department store between 2:00 and 3:00 a.m. and clothing stolen. Toney was the passenger in the car stopped trying to leave the area and he was sitting on a large stack of clothing of which he denied knowledge. That store was located about one mile from the Cotton Exchange.
Banks contended that Parris had asked him for a ride and had the office machinery with him. Parris testified that he had received the equipment from Jerry, whose last name he did not know, several days before the incident. Parris' testimony at trial contradicted statements given to the police and to the court when he pled guilty to receiving stolen property.
The issue of which version of these events to believe was for the jury, which resolved the credibility issues in favor of the State. OCGA § 24-9-80. This Court will not weigh the evidence or determine witness credibility, but only determines the sufficiency of the evidence. Daras v. State, 201 Ga.App. 512(1), 411 S.E.2d 367 (1991).
The evidence was sufficient for rational triers of fact to find all essential elements of burglary and DUI. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Cann-Hanson v. State, 223 Ga. App. 690(1), 478 S.E.2d 460 (1996); Shy v. State, 220 Ga.App. 910, 911(1), 470 S.E.2d 484 (1996).
2. Banks contends that the court's denial of his motion to sever his trial from that of Toney was reversible error.
"When the death penalty is not sought, the severance of defendants' trials is within the sound discretion of the trial court and its decision will not be disturbed unless there is an abuse of that discretion. OCGA § 17-8-4. The burden is on the defendant moving for severance to demonstrate more than the possibility that a separate trial would provide him with a better chance of acquittal; he must establish a clear showing of prejudice. Cain v. State, 235 Ga. 128, 218 S.E.2d 856 (1975)." Dixon v. State, 268 Ga. 81, 83, 485 S.E.2d 480 (1997).
Banks' basis for the motion was that the similar evidence admissible as to Toney would be "confusing to the jury in that they will not be able to separate the evidence presented at trial" which would create a high risk of prejudice to Banks.
Admission of similar crimes evidence against a co-defendant does not mandate severance where, as here, the trial judge gave specific limiting instructions regarding that evidence and the evidence itself did not implicate Banks directly. Hightower v. State, 263 Ga. 375(2), 434 S.E.2d 491 (1993); Randolph v. State, 198 Ga.App. 291, 292(3), 401 S.E.2d 310 (1991).
There was no error.
3. Banks' final enumeration is that his character was improperly placed into issue by a statement made by a prospective juror during voir dire.
The only statement of the juror contained in the record before this Court is that "I don't know him [Banks] personally but I see him with a lot of people that I do know, a lot of friends of mine." Thereafter, some statement was made by the juror in response to a follow-up question by the prosecutor, but it was not loud enough to be picked up by the court reporter. Immediately thereafter, Banks' counsel asked that the entire panel be disqualified. As recalled by the trial judge, the statement made by the juror, known to the defense as a bondsman, was "I think that we might have gotten him out of jail once." The discussion continued among counsel and the court, and then Banks' counsel stated that "when he [the prosecutor] started asking him questions, I knew what was fixing to come out. He was about to go say, well, I've gotten him out on bond before. And I just knew when it came out, was going to object to it and I think the entire panel has to be excused." (Emphasis supplied.)
*824 (a) First, Banks has failed to show, by the record, harmful error. Colloquy among counsel and the court, although included in the record, is not sufficient to make a proper record of facts before this court for purposes of satisfying appellant's burden. Kennedy v. State, 217 Ga.App. 18, 19, 456 S.E.2d 288 (1995); Shaw v. State, 201 Ga. App. 438, 440(1), 411 S.E.2d 534 (1991).
Banks has not availed himself of the opportunity to complete the record under the provisions of OCGA § 5-6-41(f) and, when this is not done, there is nothing for the appellate court to review. Harris v. State, 230 Ga. App. 403, 496 S.E.2d 277 (1998); Parker v. State, 220 Ga.App. 303, 305(3), 469 S.E.2d 410 (1996).
(b) Further, even assuming the statement had been properly included in the record, Banks' counsel acknowledged that he anticipated what was about to be said by the juror, but did nothing to prevent it. Such a tactic, if not induced error, is at least failure to object and waives any error, "`for one must assert his rights properly or face the possibility of their being forever lost.' [Cit.]" Price v. State, 222 Ga.App. 655, 656(1), 475 S.E.2d 692 (1996). E.g., Tucker v. State, 225 Ga.App. 757, 758(2), 484 S.E.2d 793 (1997).
Judgment affirmed.
POPE, P.J., and JOHNSON, J., concur.
NOTES
[1] These two were later identified as Banks and Parris. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2441922/ | 4 A.3d 835 (2010)
298 Conn. 909
STATE of Connecticut
v.
Kathleen Pamela LAVIGNE.
SC 18675
Supreme Court of Connecticut.
Decided September 15, 2010.
Martin Zeldis, public defender, in support of the petition.
Melissa L. Streeto, assistant state's attorney, in opposition.
The defendant's petition for certification for appeal from the Appellate Court, 121 Conn.App., 190, 995 A.2d 94 (2010), is granted, limited to the following issue:
"Did the Appellate Court properly conclude that the trial court's instructions as to General Statutes § 53a-123(a)(5) were not improper when the defendant was the joint owner of the subject bank account?" | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/333064/ | 529 F.2d 1222
Andrew D. DEROUEN, Sr., and Agglia Penn Derouen, his wife,individually and on behalf of their Deceased son,Andrew D. Derouen, Jr., Plaintiffs-Appellants,v.VAUGHN MARINE, INC., Defendant-Appellee.
No. 75--2325 Summary Calendar.*
United States Court of Appeals,Fifth Circuit.
April 7, 1976.
Darryl J. Tschirn, Gothard J. Reck, Michael E. Coney, Metairie, La., for plaintiffs-appellants.
Eldon T. Harvey, III, Kenneth W. Manuel, New Orleans, La., for defendant-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before BROWN, Chief Judge, GEWIN and MORGAN, Circuit Judges.
PER CURIAM:
1
The appellants brought this action under the Jones Act and general maritime law to recover for the drowning death of their son, Andrew Derouen, who had been employed as a deck hand aboard the M/V Cavalier, a vessel owned by the appellee, Vaughn Marine, Inc. On February 15, 1969, shortly after daybreak, the Cavalier, pushing three loaded barges, was approaching a fleet of barges in the Mississippi River at Baton Rouge. The captain instructed the deck hands to prepare to go forward on the barges being pushed in order to secure those barges to the other barges in the fleet. The decedent proceeded toward the stern of the Cavalier to procure a rope. He was not seen alive again. No one saw him go overboard, and his absence was not discovered for about forty-five minutes. A search for the decedent was unsuccessful; his body was recovered some three weeks later.
2
The appellants sought to predicate negligence on the part of the defendant company and/or unseaworthiness of the vessel on a variety of grounds: that the crew members did not wear life jackets; there was no handrailing on the main deck; the bulwarks were not of sufficient height to afford adequate protection; the deck had not been painted with non-skid paint; there was dew on the deck; and the Cavalier's crew should have discovered earlier that the decedent was missing and given an earlier alarm.
3
At the close of the evidence, after instructing the jury, the trial judge submitted the case to the jury with special interrogatories:
4
1. Was Vaughn Marine, Inc. negligent?2. If so, did the negligence of Vaughn Marine, Inc. play some part, however small, in causing the accident?
5
3. Was the M/V Cavalier unseaworthy?
6
4. If so, was the unseaworthiness a proximate cause of the accident?
7
Thereupon the jury retired. Unable to reach a verdict, the jurors requested that they be permitted to continue their deliberations the next day.
8
After further deliberations the next morning the foreman sent the following note to the judge:
9
There seems to be some question in the jury's mind as to what exactly constitutes negligence. Is it possible to get some clarification on this?
10
Also, one word in the second question. The question is--Did negligence cause the accident, or if the company had not been negligent would the accident have been prevented?
11
If possible can we have some clarification on these two points as to the law?
12
The trial judge summoned the jurors. In response to their first question he reinstructed them on the law of negligence. Apparently, however, the judge misread the second question, mistaking the word 'company' for the word 'captain':
13
Now your second question relates to the question of whether if the captain had not been negligent, would the accident have been prevented. I take that to have reference to the acts of the captain. Should he have stopped the barges? Did he exercise proper care? In deciding that question, as an example, you are to consider the surrounding circumstances--where the captain was; what he was doing; how he was occupied; and questions like that . . ..
14
The trial judge then proceeded to instruct the jury on causation. The jury again retired to deliberate, and returned approximately two hours later with a verdict for the defendant, having answered each interrogatory in the negative.
15
On this appeal the appellants assert that the 'primary thrust' of their case was the absence of a handrailing and the inadequate height of the bulwark. They argue that the trial judge's remarks in response to the jury's note directed the jurors' attention away from the primary issues of the case and focused their attention on a 'very minor allegation'1 so as to prejudice the plaintiffs' case. They contend that the trial judge's remarks were impermissible and unwarranted comments on the evidence; they seek a reversal of the jury verdict and a remand for a new trial.
16
The trial judge's misreading of the jury's question does not warrant reversal. Any confusion which the mistake may have engendered was cured by the judge himself. In summarizing his supplemental instructions, he redirected the jury's attention to the owner of the vessel, Vaughn Marine, Inc:
17
So to repeat, in answering the question whether or not the owner of the vessel, through its officers, employees, other than the deceased was negligent, you have to ask yourselves the question, what was done that an ordinary prudent person would not have done under the same circumstances?
18
Moreover, the interrogatories submitted to the jury made no mention whatsoever of the captain. These interrogatories, however, did specifically refer by name to Vaughn Marine. The trial judge neither sought to be an advocate for either side, nor sought to assume the role of a witness. The possibility that the jury was confused or misled because of his misreading of the question was minimal. Accordingly, appellants' first contention is without merit.
19
The appellants' second contention is that in reinstructing the jury the trial judge failed to emphasize that under the Jones Act the test of proximate cause is whether the negligence of the employer contributed to the accident even in the slightest degree. See Sanford Bros. Boats, Inc. v. Vidrine, 412 F.2d 958, 966 (5th Cir. 1969). In his initial instructions the judge stated:
20
. . . (T)he burden is on the plaintiff to establish by a preponderance of the evidence either that the defendant was negligent and that the negligence played some part, however small, in causing the accident and death, or unseaworthiness which was the proximate cause of the injury and death. (emphasis supplied)
21
The interrogatory submitted to the jury contained identical language. Moreover, the jury never had to reach the question of causation because it concluded that the appellee had not been negligent. Appellants' second contention is therefore also without merit. The judgment of the district court is affirmed.
22
Affirmed.
*
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir., 1970, 431 F.2d 409, Part I
1
Despite the appellants' characterization of the captain's alleged negligence as a 'very minor allegation,' counsel for the appellants made the following closing argument:
Now, in addition, the captain, Captain Denais, was on the stand. He told me something which really struck me at the time, and I hope it struck you, and that you perhaps noticed the importance of it. The captain said the entire operation took approximately forty to forty-five minutes to accomplish, to push the barges into position . . . No where in that forty to forty-five minutes did he ever say, 'Why, where is Andrew?' . . . Why didn't Captain Denais say, 'Where is Andrew? I gave him an order to go forward on those barges, and he is not there.' Was it more important to tie up those barges than to find out what happened to one of his men?
Ladies and gentlemen, I submit to you it is more likely so than not that had the captain stopped, had he maybe cut the barges loose, he had a loudspeaker up there with him, if he had called out to Mr. Michon (a deck hand) and said 'Where is Andrew?' Why didn't he get on the horn somewhere before forty minutes had passed and said, 'Where is Andrew?' . . . I submit to you, ladies, and gentlemen of the jury, that that is negligence. That boy fell in the river, and had the vessel stopped, perhaps they could have found him right then and there and saved his life. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1066961/ | 497 S.E.2d 519 (1998)
27 Va. App. 95
Luciano MONTALVO
v.
COMMONWEALTH of Virginia.
Record No. 1117-97-2.
Court of Appeals of Virginia, Richmond.
April 7, 1998.
*520 Jacqueline Waymack (Butterworth & Waymack, on brief), Hopewell, for appellant.
Linwood T. Wells, Jr., Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.
Present: BENTON, COLEMAN, JJ., and COLE, Senior Judge.
COLEMAN, Judge.
Under Code § 18.2-251, commonly referred to as the first offender drug statute, when a defendant who has not been previously convicted of a drug-related offense pleads guilty to a charge of illegal drug possession, the judge may, with the defendant's consent, defer disposition of the charge, place the defendant on probation upon the condition that he or she submit to drug treatment and screening, and, upon the defendant's satisfactory completion of probation, dismiss the charge. In this appeal, Luciano Montalvo contends the trial judge abused his discretion when he refused to invoke the first offender drug statute after Montalvo pled guilty to possession of cocaine. We find that the trial judge did not abuse his discretion; therefore, we affirm the conviction.
On appeal, we view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). So viewed, the record established that Montalvo was arrested and charged with possessing cocaine after an officer recovered the cocaine while investigating a domestic complaint at Montalvo's residence. At trial, after pleading guilty to possession of cocaine, Montalvo requested that the judge defer finding him guilty and grant him first offender status under Code § 18.2-251. In support of his motion, Montalvo tendered a copy of his criminal record, which verified that he had no prior drug-related convictions. The arresting officer testified that Montalvo admitted "that he had a bad drug problem and that he was going to the VA hospital in an attempt to try to help himself out." The trial judge ordered a presentence report and deferred sentencing pending his review of the report.
The presentence report showed that Montalvo had two prior assault and battery convictions and numerous driving infractions, including three for reckless driving. The report also revealed charged offenses in New York for robbery with physical injury and assault with intent to cause serious injury, the dispositions of which were "Unknown." The probation officer's report stated that it would be difficult to supervise Montalvo on probation because he was "living at different places and not living at home." It showed that Montalvo was 100% disabled because he suffered from post-traumatic stress syndrome, depression, and HIV infection. The probation officer also noted in his report that Montalvo's drug use was "apparent." The probation officer further reported that Montalvo was reluctant to sign the medical release forms that were required of him in order to obtain his medical records from the VA hospital. Because of Montalvo's delay and reluctance to sign the release, the officer *521 had not obtained the records at the time of the sentencing hearing. At the hearing, when Montalvo was asked about his delay in signing the release, he stated that he was "told it doesn't make any sense to sign it" and that he eventually signed the release after he checked with the VA hospital and was told to sign the forms.
The trial judge denied Montalvo's request to defer his sentence and to grant him first offender status. The judge stated:
The point is [that] the Court's confronted with this man being difficult when he is being given an opportunity to have first-offender status. That's inexcusable so far as the Court is concerned.... It wouldn't have been the VA that gave the difficulty, it was the defendant. The Court's not inclined to give first-offender status under these circumstances.
The trial judge found Montalvo guilty, sentenced him to five years in the penitentiary, and suspended that sentence for a period of ten years.
Montalvo asserts that the evidence does not support the judge's finding that he was uncooperative in providing the medical release. Accordingly, Montalvo argues the judge abused his discretion by denying him first offender status because the trial judge based his decision upon a finding the record does not support.
A trial court has broad discretion under Code § 19.2-203 in deciding whether to suspend all or any portion of a penitentiary sentence and to grant probation. See Hamilton v. Commonwealth, 217 Va. 325, 327, 228 S.E.2d 555, 556 (1976); Slayton v. Commonwealth, 185 Va. 357, 365, 38 S.E.2d 479, 483 (1946); Bell v. Commonwealth, 18 Va.App. 146, 148, 442 S.E.2d 427, 428 (1994). Similarly, the court has broad discretion under Code § 18.2-251 in deciding whether to defer a finding of guilt and to grant first offender status to a first-time drug offender. We will reverse a trial judge's decision to deny first offender status only where the trial judge has made an arbitrary decision and abused his discretion by failing to exercise a conscientious judgment in rendering the decision. See id.
Here, the evidence supports the trial court's finding that Montalvo was unwilling to cooperate with the probation officer by being reluctant to sign the medical release forms. Montalvo stated that he had been told "it doesn't make any sense to sign it [the release]." Although Montalvo explained why he delayed but eventually signed the medical release, the trial judge, who had the opportunity to hear Montalvo and to observe his demeanor, did not err in finding that he was uncooperative. Furthermore, from the information contained in the presentence report, the trial judge did not abuse his discretion in finding that Montalvo would not be a good candidate for first offender status.
A first-time drug offender is not entitled as a matter of right to receive a suspended sentence, probation, or treatment under Code § 18.2-251. As alternatives to confinement and incarceration, the statute's benefits are reserved for those first-time drug offenders who demonstrate a likelihood of being able to adhere to the terms and conditions of probation. Here, Montalvo had pled guilty to possession of cocaine and, although it was his first drug offense, he admitted he had used drugs on other occasions and had a drug problem for which he was being treated at the VA hospital. Moreover, the fact that Montalvo was a drug user was apparent to the probation officer. Although a first-time offender who has a history of drug use may still be considered for first offender status, when considered with the fact that Montalvo did not have a regular address, had a prior criminal record of two assault convictions and numerous traffic related offenses, was suffering from depression and post-traumatic stress syndrome and that he had demonstrated an uncooperative attitude by being reluctant to provide the medical release forms that would have enabled the court to obtain information about his drug use and treatment, we cannot say the trial judge abused his discretion by denying Montalvo first offender status under Code § 18.2-251.
Accordingly, we uphold the ruling of the trial court and affirm the conviction.
Affirmed.
BENTON, J., dissenting.
*522 Stating that Montalvo "made it very difficult" for the probation officer to obtain Montalvo's medical records from the Veterans' Administration, the trial judge refused to grant Montalvo first offender status under Code § 18.2-251. The record does not support that finding. Therefore, I would hold that the trial judge abused his discretion.
At trial, both the Commonwealth's attorney and Montalvo represented to the judge that Montalvo was eligible for first offender status pursuant to Code § 18.2-251 and that his criminal record was not disqualifying. At the sentencing hearing, the following exchange occurred:
THE COURT: This case was tried in December. To date the probation officer tells me he has not been able to get the necessary signatures from the defendant to get medical records that are required in order to go forward with first-offender status. Still has not had it since December. We've continued it once before.
[DEFENSE COUNSEL]: Your Honor, I think [the probation officer] has gotten the signatures at this point.
THE COURT: Told me a few minutes ago he did not have.
[PROBATION OFFICER]: I got the signature on the first release eventually, Judge, and then the second release that was sent to me
THE COURT: The point is, the Court's confronted with this man being difficult when he is being given an opportunity to have first-offender status. That's inexcusable so far as the Court is concerned.
[DEFENSE COUNSEL]: Yes, sir. I believe at first he did have a problem with medical records, and after talking to him he did give a release to [the probation officer]. That's my understanding. It's difficult to get records from the Veteran's Administration.
This record clearly establishes that, based on an off-the-record conversation with the probation officer, the trial judge concluded that Montalvo had not signed the second release that the Veterans' Administration required. No evidence proved that Montalvo or his counsel were present when that off-the-record discussion occurred. Montalvo's counsel made an unrefuted avowal on the record that Montalvo had signed the second release and had given it to the probation officer. Indeed, when the probation officer began to explain the events after he received the second release, the trial judge spontaneously ruled that Montalvo was "being difficult" before the probation officer could complete his explanation. This is the sole basis upon which the trial judge refused to consider Montalvo for first offender status under Code § 18.2-251.
Although the majority concludes, based on its own examination of Montalvo's history, that Montalvo was not a "good candidate" for first offender status, the trial judge's decision was grounded only in the judge's perception that Montalvo was uncooperative with the probation officer. We are not at liberty to conclude that the trial judge might have discovered some reason other than the stated reason. The trial judge's stated reason was based on an erroneous assumption. Therefore, I would reverse the judgment and remand to the trial judge for reconsideration of the sentence and Montalvo's eligibility for first offender status as provided by Code § 18.2-251. | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260937/ | 130 Cal.Rptr.2d 810 (2003)
106 Cal.App.4th 458
In re JOSE P, a Person Coming Under the Juvenile Court Law.
The People, Plaintiff and Respondent,
v.
Jose P., Defendant and Appellant.
No. H024354.
Court of Appeal, Sixth District.
February 21, 2003.
Review Denied April 30, 2003.[*]
*811 Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant *812 Attorney General, Moona Nandi, Assistant Supervising Deputy Attorney General, Allan Yannow, Deputy Attorney General, for Plaintiff/Respondent, The State of California.
Sixth District Appellate Program, In association with Peter A. Estern, San Jose, for Defendant/Appellant, Jose P.
PREMO, J.
INTRODUCTION
The juvenile court found that Jose P. (the minor) had committed home invasion robbery, false imprisonment, and first degree burglary. The court found true the allegation that he had committed these crimes for the benefit of, at the direction of, or in association with a criminal street gang. (Pen.Code, § 186.22, subd. (b)(1) (hereafter § 186.22(b)(1)).)[1] The court also found that the minor had committed the substantive offense of active participation in a criminal street gang. (§ 186.22, subd. (a) (hereafter § 186.22(a)).) The court committed the minor to the California Youth Authority. The maximum period of confinement included nine years for the robbery increased by 10 years for the gang enhancement. In addition, the court assessed eight months for the substantive gang crime.
On appeal, the minor contends that there is insufficient evidence to support either the gang enhancement or the gang crime and that section 654 prohibits imposition of punishment for the latter. We shall affirm.
Facts
Evidence of the Robbery
On October 5, 2001, a witness observed two men enter a residence in Salinas carrying a wheeled dolly. A third person, who was wearing a Nike baseball cap, stationed himself across the street. Shortly afterward, the first two men left the house pushing the dolly, which now bore a heavy object wrapped up in a sheet or a blanket. The witness believed the object might have been a washing machine. In fact, the dolly bore two safes containing about $17,000 in cash, payroll checks, and jewelry.
Twelve-year-old J.B. and her seven-year-old brother, D.G, lived in that house in Salinas. On the night of the robbery, D.G. was watching television and J.B. was taking a bath. Their parents were not home. The two robbers came in and pointed what D.G. thought was a gun at D.G.'s head. Someone put duct tape over his eyes and mouth and also bound his hands and feet with the tape. D.G. positively identified the minor from a photographic lineup as the person who pointed the gun at him. He referred to the minor as "Ruben," J.B.'s ex-boyfriend.[2]
The officers investigating the crime found a bed sheet on the ground across the street from the minor's house. When they searched his house they found a roll of duct tape, a .380-caliber bullet in a dish in the living room, and a dolly in the rafters of the garage. Neither the safes nor their contents were recovered.
Evidence Of Gang Participation
Three nights before the robbery, J.B. stayed out all night. Her mother became concerned and looked through her things. She found J.B.'s diary and read it. J.B. had written about her relationship with the *813 minor and made numerous notations referring to the `Norteños.'
Officers searching the minor's residence after the robbery found two photographs. Each photograph depicted two Hispanic males, one or both of whom was flashing gang signs.
Salinas Police Detective Fay Patterson interviewed the minor at the police station a little over a month after the robbery. The minor told Detective Patterson that he was associated with the `Norteño' gang. He said that J.B was his girlfriend and because her parents did not have a high opinion of gang members he used the name "Ruben" when he called her home so that her parents would not know who he was. In addition to admitting his association with the gang, the minor told the detective that if the gang was to "do something," he would not "be a chicken," which the detective took to mean that he would do whatever the gang was doing at the time.
About a month after the robbery, shortly after J.B.'s family had received subpoenas requiring their testimony in this case, J.B.'s mother found a note on her doorstep. The note contained a reference to "Norteño" and threatened her husband. The note caused the family to be reluctant to testify.
Officer Vickie Burnett of the Salinas Police Department testified as an expert on criminal street gangs. Officer Burnett explained that the "Norteño" street gang is an ongoing organization having around 600 members or associates in Salinas. She explained that there were separate cliques or factions within the larger Norteño gang. The Santa Rita and Salinas East Market Street (SEM) gangs were such subgroups and were loyal to one another and to the larger Norteño street gang. She said that all the Norteño gangs follow the same bylaws as the Norteño prison gangs. The primary activities of the gangs are those listed in section 186.22, subdivision (e). Norteños identified with the color red and the number 14.
Officer Burnett went on to describe criminal activity of Norteño gang members. She testified about two recent cases. In the first, two members of SEM were arrested. One was convicted of discharging a firearm at an inhabited dwelling (§ 246) and the other of being a felon in possession of a firearm (§ 12021). Both convictions included the gang enhancement of section 186.22(b)(1). In the second case, one of the defendants was identified as a `Norteño' gang member. The other admitted to being a member of the `Kilbreth Street Norteño' gang. These defendants were arrested in connection with a robbery at a convenience store. Both were convicted of robbery with gang enhancements. (§§ 211, 186.22(b)(1).)
Officer Burnett recounted the following series of contacts that had taken place between the minor and members of the Salinas Police Department:
On November 17, 2001, the minor was contacted in the company of `an admitted Norteñno.'
On September 2, 2001, the minor, who was wearing a red shirt and red pants, was contacted in the company of a `Santa Rita gang associate.'
On June 8, 2001, the minor was contacted as a witness in the attempted murder of his brother, a Santa Rita gang associate. At the time, he was in the company of another admitted `Norteño.' The minor admitted at that time that he associated with Santa Rita gang members.
On April 19, 2001, the minor was arrested for attempted robbery and resisting arrest.
*814 On March 29, 2001, the minor was again contacted in the company of his brother who is associated with the Santa Rita gang. The minor was wearing a red shirt.
On August 3, 2000, the minor was contacted in the company of another brother who is an SEM gang member. Officer Burnett pointed out that in one of the photographs found at the minor's home the word "Semsters" appeared, which was a word used for the SEM gang.
On December 3, 1999, the minor was arrested along with his brother, the Santa Rita gang associate, in connection with a stolen vehicle.
The minor's high school records revealed that in November 1999 he was suspended for breaking school rules and was put on a "gang contract" by which he agreed not to wear red or to associate with "other known members of the Norteño gang." On May 17, 2000, he was involved in a fight on school grounds. During the fight the minor used the word "Norteños." According to Officer Burnett, a gang member will yell out "Norteños" to advertise that a Norteño is doing the crime. The minor was expelled from the school district as a result of this fight.
Officer Burnett testified that it was her opinion that the minor "is an active participant in a criminal street gang, because he has admitted to associating with Norteños, Norteño street gang members. He wears gang-related clothing and colors, and he has been arrested for participating in gang-related crimes." She also opined that the robbery of which the minor was then accused was committed in association with "the Norteño criminal street gang" because the minor associates with persons he knows to be Norteño street gang members, he admitted that if they asked him to do something he would probably do it, the robbery lookout was wearing a Nike baseball cap (the letter "N" in Nike also stands for Norteño), and an intimidating note was left with J.B.'s family, which Officer Burnett explained was a common gang tactic.
PROCEDURAL BACKGROUND
The instant matter was conducted in response to a petition filed under Welfare and Institutions Code section 602. The petition contained allegations of seven substantive offenses and a variety of enhancements relating to the October 5, 2001 incident.[3] Count 1 alleged robbery in the presence of D.G. and under circumstances commonly referred to as home invasion robbery. (§§ 211, 213, subd. (a)(1)(A).) Count 4 alleged false imprisonment of D.G. (§ 236.) Count 6 alleged first degree burglary. (§ 459.) Each of these three felony counts also included the gang enhancement allegation of section 186.22(b)(1). Count 7 alleged the substantive offense of active participation in a criminal street gang. (§ 186.22(a).) The petition further alleged that the minor had committed attempted robbery (§§ 664, 211) in April 2001 for which a previous petition had been sustained. The juvenile court found each of these allegations to be true and sustained the petition on that basis. The court rejected the other allegations, all of which concerned the use of firearms or listed J.B. as a victim.
ISSUES
1. Is the evidence sufficient to support the juvenile court's finding that the minor is an active participant in a criminal street gang and that he committed the crimes *815 with which he was charged for the benefit of a criminal street gang?
2. Does section 654 apply to stay the eight month sentence for violation of section 186.22(a)?
DISCUSSION
Sufficiency of the Evidence of Gang Involvement
The minor contends that there was insufficient evidence to establish that he was associated with any particular gang and therefore the prosecution did not carry its burden of proving the facts necessary to support either the substantive gang offense (§ 186.22(a)) or the gang enhancement. (§ 186.22(b)(1).)
When the challenge is to the sufficiency of the evidence, "`[t]he test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.'" (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738 quoting People v. Reilly (1970) 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649.) We view the evidence in the entire record in the light most favorable to the respondent and we presume the existence of every fact in support of the judgment that the trier could reasonably deduce from the evidence. (People v. Johnson, supra, 26 Cal.3d at pp. 576-577, 162 Cal.Rptr. 431, 606 P.2d 738.) To be substantial, the evidence must be "`of ponderable legal significance ... reasonable in nature, credible, and of solid value.'" (Id at p. 576, 162 Cal.Rptr. 431, 606 P.2d 738.)
Section 186.22(a) creates a substantive crime: "Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished [as specified]." A person need not be a gang member to be guilty of violating section 186.22(a). (See People v. Valdez (1997) 58 Cal.App.4th 494, 505, 68 Cal.Rptr.2d 135 (Valdez).) But he or she must have had more than a nominal or passive involvement with the gang, knowing of the gang's pattern of criminal activity, and must have aided and abetted a separate felony committed by gang members. (People v. Castenada (2000) 23 Cal.4th 743, 749-750, 97 Cal.Rptr.2d 906, 3 P.3d 278.)
Section 186.22(b)(1) is a sentence enhancement: "Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted" shall receive additional punishment as specified.
The existence of a criminal street gang is unquestionably an element of both the enhancement and the substantive offense. (Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 846, 100 Cal.Rptr.2d 120 (Salazar).) To prove the existence of a criminal street gang, "the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a `pattern of criminal gang activity' by committing, attempting to commit, or soliciting two or more of the enumerated *816 offenses (the so-called `predicate offenses') during the statutorily defined period. [Citation.]" (People v. Gardeley (1996) 14 Cal.4th 605, 617, 59 Cal.Rptr.2d 356, 927 P.2d 713.)
The minor cites this court's opinion in Valdez, supra, for the proposition that the evidence of gang activity must be specific to a particular local street gang, not to the larger Norteño organization. In Valdez, one issue before us was whether the court erred in permitting expert testimony concerning whether the defendant's conduct was committed for the benefit of a criminal street gang. In that case, a group of individuals from a number of different Norteño cliques or gangs in San Jose came together one day and formed a caravan to attack Sureños. Given the expert testimony, we stated, At the time it assembled, the caravan was not a criminal street gang within the meaning of the [gang] enhancement allegation. Moreover, their common identification as Norteos did not establish them as a street gang, for, as [the expert] testified, Norteo and Sureo are not the names of gangs. (Valdez, supra, 58 Cal. App.4th at p. 508, 68 Cal.Rptr.2d 135.) We concluded that the expert testimony was admissible because it could help the jury understand that joint conduct by such a diverse group could benefit each of the gangs. (Id. at pp. 508-509, 68 Cal.Rptr.2d 135.) Valdez does not hold that there is no criminal street gang called `Norteño.' Moreover, the expert testimony in Valdez was evidence in that case, not this one. It is irrelevant to our determination of whether there is substantial evidence to support the gang findings here.
The minor also cites our opinion in Salazar, supra. In that case, we concluded that the preliminary hearing produced a total absence of evidence demonstrating the existence of a criminal street gang. (Salazar, supra, 83 Cal.App.4th at p. 846, 100 Cal.Rptr.2d 120.) Although during the incident, the words "Vagos" and "SEM" had been uttered, we found that this, at most, implied that there were groups known as "Vagos" or "SEM" but that there was no evidence to connect the defendant in that case to any such group or that either group engaged in a pattern of criminal gang activity. (Ibid.) In contrast, the prosecution's expert in this case testified to both the existence of a criminal street gang and the minor's participation in it.
Officer Burnett testified that the Norteño gang was an ongoing association of around 600 persons, identified by the color red and the number 14, and that it had as one of its primary activities the commission of the criminal acts listed in section 186.22. She detailed the gang's pattern of criminal activity by describing the firearms offenses and the convenience store robbery. This is sufficient evidence to establish that Norteño was a criminal street gang.
There is also substantial evidence to support a finding that the minor was an active participant in the Norteño criminal street gang. (§ 186.22(a).) Significantly, he admitted to Officer Patterson that he associated with the Norteño gang. Police records also indicated that he had admitted to associating with the Santa Rita gang, a Norteño subgroup. The minor had been contacted on several occasions in the company of persons who were members of the Norteños, SEM, and Santa Rita gangs and was observed wearing red on at least two occasions. The minor said that if his fellow gang members had asked him to do something, he would not be a chicken. And finally, he had previously been involved in the crimes of car theft and attempted robbery as well as the home invasion robbery he committed on October 5, 2001.
*817 As to the enhancement, there was the evidence that the robbery lookout was wearing a Nike baseball cap, J.B. had written in her diary about the minor along with repeated references to "Norteño," and her family received a note from the Norteños attempting to dissuade their testimony in this case. This evidence, coupled with the evidence of the minor's ongoing involvement with the Norteño gang and his prior arrests for gang-related crimes, is sufficient to support a finding that the robbery was committed for the benefit of, or in association with, the Norteño gang and that the minor had the specific intent to promote, further, or assist in the gang's criminal conduct. (§ 186.22(b)(1).)
Section 654
In committing the minor to the Youth Authority, the juvenile court included in the maximum period of confinement nine years for the home invasion robbery (§§ 211, 213) enhanced by 10 years pursuant to section 186.22(b)(1)(C). The court also included eight months for the gang crime. (§ 186.22(a).) The minor challenges the eight months for the gang crime, contending that time should be stayed pursuant to section 654.[4]
"Section 654 is intended to ensure that punishment is commensurate with a defendant's criminal culpability. (People v. Perez (1979) 23 Cal.3d 545, 551, 153 Cal.Rptr. 40, 591 P.2d 63; accord, People v. Latimer (1993) 5 Cal.4th 1203, 1211, 23 Cal.Rptr.2d 144, 858 P.2d 611.) It expressly prohibits multiple sentences where a single act violates more than one statute. For example, a defendant may be guilty of both arson and attempted murder for throwing gasoline into an inhabited room and lighting it, but the single act may be punished only once. (See, e.g., Neal v. State of California (1960) 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839.)" (People v. Alvarado (2001) 87 Cal. App.4th 178, 196, 104 Cal.Rptr.2d 624.) "Although the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one offense the one carrying the highest punishment. [Citation.]" (People v. Liu (1996) 46 Cal. App.4th 1119, 1135, 54 Cal.Rptr.2d 578.)
Section 654 also prohibits multiple punishment if the defendant commits more than one act in violation of different statutes when the acts comprise an indivisible course of conduct having a single intent and objective. "If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California, supra, 55 Cal.2d at p. 19, 9 Cal.Rptr. 607, 357 P.2d 839.) In such a case, the defendant's single intent and objective are treated as a single act. For example, a defendant who enters a building with the intent to commit theft and then takes something of value cannot be sentenced for both burglary and theft. Although defendant committed two criminal acts (entering the building and taking the property), the two acts "were parts of a continuous course of conduct and were motivated by one objective, theft; the burglary, although complete before the theft was committed, was incident to and a means of perpetrating the theft." (People v. McFarland (1962) 58 Cal.2d 748, 762, 26 Cal.Rptr. 473, 376 P.2d 449.)
*818 On the other hand, section 654 does not apply when the evidence discloses that a defendant entertained multiple criminal objectives independent of each other. In that case, "the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations.] The principal inquiry in each case is whether the defendant's criminal intent and objective were single or multiple." (People v. Liu, supra, 46 Cal.App.4th at p. 1135, 54 Cal.Rptr.2d 578.) "A defendant's criminal objective is `determined from all the circumstances and is primarily a question of fact for the trial court, whose findings will be upheld on appeal if there is any substantial evidence to support it.' (People v. Porter (1987) 194 Cal.App.3d 34, 38, 239 Cal.Rptr. 269.)" (People v. Braz (1997) 57 Cal.App.4th 1, 10, 66 Cal.Rptr.2d 553.)
Participation in felonious conduct in association with, or for the benefit of a gang is one of the elements necessary to prove the substantive gang crime described by section 186.22(a). That is, "section 186.22(a) limits liability to those who promote, further, or assist a specific felony committed by gang members and who know of the gang's pattern of criminal gang activity. Thus, a person who violates section 186.22(a) has also aided and abetted a separate felony offense committed by gang members...." (People v. Castenada, supra, 23 Cal.4th at p. 749, 97 Cal.Rptr.2d 906, 3 P.3d 278.) Presuming that the juvenile court relied upon the instant robbery as the basis for section 186.22(a) liability, the minor contends that punishment for the section 186.22(a) offense and the robbery is double punishment for robbery. The minor also suggests that his objective and intent as to both crimes had to be the same because the gang enhancement that was applied to the robbery required a finding of specific intent to further the gang's criminal conduct.[5]
We note first that the instant robbery was not the only felonious act upon which the court could have based its finding that the minor had committed the section 186.22(a) crime. The minor had also been found guilty of attempted robbery in April 2001. Given his continuous involvement with the Norteños this crime could have served as the basis for the court's finding that he violated section 186.22(a). In that case, the home invasion robbery and the substantive gang crime would have no acts in common. However, even presuming that the robbery was the basis for the minor's section 186.22(a) liability, section 654 does not require that punishment for that crime be stayed.
A similar situation was confronted by the appellate court in People v. Herrera (1999) 70 Cal.App.4th 1456, 83 Cal.Rptr.2d 307 (Herrera). In Herrera, the jury found the defendant guilty of attempted murder and found the gang enhancement allegation to be true. (§ 186.22(b)(1).) The jury also found the defendant guilty of the gang crime of section 186.22(a). The trial court imposed sentence for attempted murder, enhanced pursuant to section 186.22(b)(1), and also imposed a sentence for the section 186.22(a) gang crime. (Herrera, supra, 70 Cal.App.4th at p. 1462, 83 Cal.Rptr.2d 307.)
*819 The appellate court struck the enhancement because it does not apply where the crime is punishable by life in prison. (Herrera, supra, 70 Cal.App.4th at p. 1465, 83 Cal.Rptr.2d 307; § 186.22(b)(4).) However, as to the defendant's argument that section 654 prohibited punishment for both the attempted murder and the section 186.22(a) offense, the court held that the defendant's objective in committing the two crimes was divisible, even taking into account the fact that the jury had found the attempted murder was committed for the benefit of the gang. The appellate court stated: "Section 186.22, subdivision (a) punishes active gang participation where the defendant promotes or assists in felonious conduct by the gang. It is a substantive offense whose gravamen is the participation in the gang itself. Hence, under section 186.22, subdivision (a) the defendant must necessarily have the intent and objective to actively participate in a criminal street gang.... [S]ection 186.22, subdivision (a) requires a separate intent and objective from the underlying felony committed on behalf of the gang. The perpetrator of the underlying crime may thus possess `two independent, even if simultaneous, objectives[,]' thereby precluding application of section 654. [Citation.]" (Herrera, supra, 70 Cal.App.4th at pp. 1467-1468, 83 Cal.Rptr.2d 307, fns. omitted.)
This case is no different than Herrera. The minor's intent and objective in violating section 186.22(a) necessarily must have been participation in the gang itself. Evidence of that intent was abundant. The minor had been actively involved in gangs since at least 1999. He was arrested along with a gang member for car theft. He was expelled from school for a gang fight. His brothers were gang members. Even if his criminal liability for the gang offense depended upon his participation in the robbery, the record supports a finding that he harbored the separate intent and objective to participate in the gang.
His intent and objective in committing the robbery was to take the property located in the home. Application of the enhancement does not alter the fact that he must also have had the intent to take the property. While he may have pursued the two objectives simultaneously, the objectives were nevertheless independent of each other. Therefore, section 654 does not bar punishment for both the gang crime and the robbery.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RUSHING, P.J., and ELIA, J.
NOTES
[*] Kennard, J., and Werdegar, J., dissented.
[1] Hereafter, all undesignated statutory references are to the Penal Code.
[2] J.B. did not testify because her parents sent her to live with relatives out of state very shortly after the robbery.
[3] A second petition relating to the minor's arrest on November 17, 2001, for driving without a license and possessing marijuana (Veh.Code, § 12500, subd. (a); Health & Saf. Code, § 11357, subd. (b)) was adjudicated simultaneously.
[4] Section 654 states, in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
[5] As the minor points out, it is undecided whether the rule of section 654 applies to sentence enhancements in the same way it applies to substantive offenses. (See People v. Arndt (1999) 76 Cal.App.4th 387, 394-395, 90 Cal.Rptr.2d 415 and cases cited therein.) In light of our conclusion that on the facts of this case section 654 would not limit the punishment imposed for the gang crime, it is unnecessary for us to reach that issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260943/ | 131 Cal.Rptr.2d 620 (2003)
106 Cal.App.4th 1209
David K. OLSON, Plaintiff and Appellant,
v.
Baruch C. COHEN et al., Defendants and Respondents.
No. B155518.
Court of Appeal, Second District.
March 11, 2003.
Rehearing Denied March 28, 2003.
As Modified April 2, 2003. and April 19, 2003.
Review Denied June 11, 2003.
*622 Robert W. Hirsh & Associates and Robert W. Hirsh, Beverly Hills, for Plaintiff and Appellant.
Levinson & Kaplan, Robert A. Levinson, Encino, and Stuart L. Leviton, San Francisco, for Defendants and Respondents.
*621 NOTT, J.
In this action we are called upon to address appropriate remedies where a law corporation fails to register with the State Bar of California (State Bar) as required by the Business and Professions Code. We hold that at least on the facts presented in the present case, where there is no allegation that any client either relied upon the existence of a corporate entity in seeking legal services or was injured by the law corporation's delinquency, disgorgement of legal fees is inappropriate.
David K. Olson appeals from the judgment of dismissal entered in his class action lawsuit filed on behalf of himself and other legal clients of "Baruch C. Cohen, Esq., a Professional Law Corporation aka Law Office of Baruch C. Cohen, Esq., a Professional Corporation aka Baruch C. Cohen, a Professional Law Corporation aka Law Office of Baruch C. Cohen, a Professional Law Corporation" (Corp). Corp and Baruch C. Cohen, an individual, were named as defendants. The action sought disgorgement of all legal fees collected by Corp and Cohen for work occurring during a four and one-half year period before Corp registered to practice law with the State Bar. Appellant contends the trial court improperly granted demurrers to the original complaint and the first amended complaint (FAC) without leave to amend, and granted excessive attorney fees. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This action was filed in May 2001. The complaint alleges that during the period of August 13, 1996, when Corp incorporated, through April 8, 2001, Corp was not registered *623 as a law corporation with the State Bar. It pleads counts for rescission and imposition of constructive trust (count 1), violation of section 17200 et seq. of the Business and Professions Code and for imposition of constructive trust (count 2); intentional misrepresentation (count 3); concealment (count 4); and accounting (count 5). The complaint prays for disgorgement of monies paid to Corp and Cohen before Corp registered with the State Bar, and for other affirmative relief.
Respondents demurred to the complaint. The trial court sustained respondents' general demurrer and allowed leave to amend count 2. The court denied leave to amend the remaining counts.
Appellant filed his FAC alleging violation of section 17200 et seq. of the Business and Professions Code and requesting imposition of constructive trust. The FAC alleges the following. Corp was not registered with the State Bar during a period of more than four years which ended in April 2001, when Corp registered to practice law. Corp is owned and controlled by Cohen, an attorney. Corp practiced law during the period when it was organized but not registered as a law corporation. The FAC seeks restitution of all fees paid for services rendered during the period, imposition of a constructive trust, and statutory damages pursuant to section 17206.1 of the Business and Professions Code (penalties for violations against senior citizens or disabled persons), subject to proof.
Respondents demurred to the FAC. The trial court sustained the demurrer without leave to amend and dismissed the action. It reasoned that requiring respondents to return all of the legal fees collected, regardless of the results obtained, would be disproportionate to the wrong and was in any event a matter between respondents and the State Bar. Appellant unsuccessfully sought reconsideration. Respondents were granted attorney fees and costs in the total amount of $33,036.75. This appeal followed.[1]
DISCUSSION
1. Standard of review
On appeal from a judgment of dismissal entered after a general demurrer is sustained, the appellate court reviews the complaint to determine whether it states a cause of action. The court assumes the truth of all properly pleaded material allegations of the complaint. (Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 558, 71 Cal.Rptr.2d 731, 950 P.2d 1086 (Stop Youth Addiction ).) The propriety of awarding attorney fees presents a legal question which is reviewed de novo. (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal. App.4th 1127, 1132, 94 Cal.Rptr.2d 448.) The court reviews the amount of the attorney fees award for abuse of discretion. (Id. at p. 1134, 94 Cal.Rptr.2d 448.)
2. Registration as a law corporation
The Business and Professions Code requires a law corporation to obtain a certificate of registration, which is issued by the State Bar upon findings that the corporation is organized and existing pursuant to the General Corporation Law or pursuant to section 13406, subdivision (b) of the Corporations Code, that the qualifications of personnel, the ownership and transfer of *624 shares, and the security for claims against the corporation have been satisfied, and that it appears the corporation will be conducted in compliance with law and the rules and regulations of the State Bar. (Bus. & Prof.Code, §§ 6161, 6171.) A registration fee is required, as are annual fees for renewal of the certificate of registration. (Bus. & Prof.Code, §§ 6161, 6161.1.) The State Bar is authorized to investigate the conduct of the corporation's business and to issue a notice to show cause why it should not be ordered to cease and desist from specified acts or conduct or its certificate of registration should not be suspended or revoked if there is reason to believe a law corporation has violated any pertinent statute, rule, or regulation. (Bus. & Prof.Code, §§ 6168, 6169.) Review is in the Supreme Court. (Bus. and Prof.Code, § 6170.)
Section 6160 of the Business and Professions Code provides that "[a] law corporation is a corporation which is registered with the State Bar of California and has a currently effective certificate of registration . . . . Subject to all applicable statutes, rules and regulations, such law corporation is entitled to practice law." "[M]embers of the State Bar may properly render legal services as officers or employees of a law corporation. . . ." (Bus. and Prof.Code, § 6172.)
3. Section 17200 of the Business and Professions Code
Appellant contends that Corp engaged in the unauthorized practice of law by providing legal services without registering as a law corporation with the State Bar. He reasons that during the period before Corp registered with the State Bar, all services rendered by it were illegal and that Corp's fee agreements were void. Appellant asserts that Corp's acts were "unlawful, unfair or fraudulent business practices" pursuant to section 17200 of the Business and Professions Code and that Corp and Cohen should be required to disgorge all fees they collected for services rendered during the period before Corp registered. We disagree.
To state a claim under sections 17200 through 17209 of the Business and Professions Code (the unfair competition law, or UCL), appellant must allege a business practice that is forbidden by law. (Stop Youth Addiction, supra, 17 Cal.4th at p. 560, 71 Cal.Rptr.2d 731, 950 P.2d 1086.) In the present case, appellant did not allege that Cohen was unlicensed, but only that Corp failed to register as a law corporation with the State Bar. Assuming that by holding Corp out as a law corporation, Corp and Cohen engaged in an unlawful business practice, appellant nevertheless failed to show that he is entitled to the relief he seeks.
A UCL action is equitable in nature, and the court may consider equitable factors in deciding which, if any, remedies authorized by the UCL should be awarded. (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 179-181, 96 Cal.Rptr.2d 518, 999 P.2d 706.) In the present case, those factors weigh strongly in favor of denying appellant relief. Corp voluntarily registered with the State Bar prior to the filing of the original complaint. There is no present basis for ordering injunctive relief regarding registration. Nor has appellant shown a reasonable basis for restitutionary relief. Although appellant seeks a forfeiture of all fees collected from Corp, there is no allegation that any client relied upon the existence of a corporate entity in seeking legal services or was injured by the delay in registration. There is no allegation of malpractice.
The complaint alleges that Corp failed to comply with one of the requirements for operating as a law corporation. The decision *625 to incorporate as a professional corporation, however, is typically made to obtain tax advantages and to avoid personal liability for the corporation's debts. (See Organizing Corp. in Cal. (Cont.Ed.Bar 3d ed.2001) § 6.5, pp. 638-639.) Incorporation is not undertaken for the protection of clients. The protections for clients mandated by laws governing incorporation of law corporations, such as restrictions on who may be a shareholder and requirements for security for claims against the corporation, protect against abuses which might otherwise occur from the use of the corporate structure. Failure to comply with these requirements may result in an order to cease and desist or suspension or revocation of registration. (Bus. & Prof. Code, §§ 6168, 6169.) To require disgorgement of fees because of a failure to register the corporation, on the other hand, is disproportionate to the wrong.
Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119, 70 Cal.Rptr.2d 304, 949 P.2d 1 (Birbrower) and Homami v. Iranzadi (1989) 211 Cal.App.3d 1104, 260 Cal.Rptr. 6 (Homami), relied upon by appellant, are distinguishable. Birbrower concerned the practice of law in California by attorneys who were not licensed to practice law here in violation of section 6125 of the Business and Professions Code. Our Supreme Court held that the law firm was not entitled to recover fees under its fee agreement for those services. (Birbrower, supra, 17 Cal.4th at p. 140, 70 Cal.Rptr.2d 304, 949 P.2d 1.)[2] In Homami, the appellate court reversed a judgment for interest on a loan where the loan agreement was evidenced by promissory notes that stated they would bear no interest, but the parties had orally agreed that interest would be paid but intended to avoid reporting it as income for tax purposes. The appellate court held that the oral agreement had as its object the violation of law, and was therefore void. (Homami, supra, 211 Cal. App.3d at p. 1112, 260 Cal.Rptr. 6.) Here, the fee agreements had as their object the provision of legal services by Cohen, a licensed attorney. Although Cohen may not have been entitled to the protection from individual liability afforded by a professional corporation during the period when Corp was not registered with the State Bar, the agreements' object was not the violation of law.
Instead, this case is similar to American Alternative Energy Partners II v. Windridge, Inc. (1996) 42 Cal.App.4th 551, 561, 49 Cal.Rptr.2d 686, in which a purported limited partnership failed to file a certificate of limited partnership with the Secretary of State. The court treated the partnership not as lacking capacity to sue but rather as a general partnership with general liability. Analogously, in the present case Corp would be treated as a sole proprietorship and Cohen denied the benefits of conducting his law practice through a corporate entity. (See also Schantz v. Ellsworth (1971) 19 Cal.App.3d 289, 96 Cal. Rptr. 783 [a real estate broker was allowed to enforce a commission contract even though it was entered into by the broker using a fictitious business name and his broker's license was held in his individual *626 name].) We conclude that based upon the allegations of the FAC, appellant is not entitled to the relief sought under the UCL.
4. Rescission
Appellant contends that an unlicensed person cannot collect compensation for practicing law, and that he and the represented class are therefore entitled to restitution based upon rescission. We disagree.
"Civil Code section 1692 in essence restates the equity jurisprudence applicable in the rescission context." (Hedging Concepts, Inc. v. First Alliance Mortgage Co. (1996) 41 Cal.App.4th 1410, 1422, 49 Cal. Rptr.2d 191.) It states in relevant part that in an action seeking rescission, "the court may require the party to whom such relief is granted to make any compensation to the other which justice may require and may otherwise in its judgment adjust the equities between the parties." As we discussed above, the equities of the present case do not support disgorgement of fees paid to Corp and Cohen. The contracts are fully executed. Cohen, the attorney performing the services, was licensed to practice law in California. Appellant does not challenge the services as negligently rendered. Moreover, "to effect a rescission a party to the contract must, promptly upon discovering the facts which entitle him to rescind . . . [¶] . . . (b) Restore to the other party everything of value which he has received from him under the contract. . . ." (Civ.Code, § 1691.) Appellant cannot restore to respondents the services which he has received from them under the fee agreements.
In addition, appellant conceded in his opposition to respondents' first demurrer, that he did not assert his rescission claim against Cohen personally. Cohen's demurrer to the claim was therefore properly sustained without leave to amend.
5. Misrepresentation or concealment
The only misrepresentation or concealment alleged in the original complaint is respondents' failure to inform appellant that Corp was not registered as a law corporation with the State Bar during the period in issue. The elements of a cause of action for fraud are misrepresentation (false representation, concealment, or nondisclosure), scienter, intent to defraud, justifiable reliance, and resulting damage. (Anderson v. Deloitte & Touche 1991) 56 Cal.App.4th 1468, 1474, 66 Cal.Rptr.2d 512.) Providing services through a law corporation limits the liability of its owners; it does not typically benefit clients receiving the services. Appellant failed to allege either justifiable reliance or resulting damage to himself or to the members of the class.
6. Accounting
As discussed above, appellant alleged no facts justifying the remedy of an accounting.
7. Attorney fees
The retainer agreements between the parties provided that in the event of litigation between them, the prevailing party would be entitled to reasonable attorney fees. The trial court awarded respondent $30,450. Appellant contends that amount is excessive. We disagree.
Appellant makes only a general challenge to the amount of time spent by opposing counsel he does not challenge the hourly billing rate. He also asserts that fees for unsuccessful services, including enforcement of a settlement agreement *627 and the motion to disqualify counsel, were improperly allowed.
The determination of reasonable attorney fees is committed to the sound discretion of the trial court, which is in the best position to judge the value of professional services rendered in its court. (Akins v. Enterprise Rentr-A-Car Co., supra, 79 Cal.App.4th at p. 1134, 94 Cal. Rptr.2d 448.) The court may consider the nature of the litigation, its difficulty, the amount involved in the litigation, the skill employed in handling the litigation, the attention given, the success of the attorney's efforts, the attorney's learning and experience, the intricacies and importance of the litigation, the labor necessary, and the time consumed. (See Clayton Development Co. v. Falvey (1988) 206 Cal. App.3d 438, 447, 253 Cal.Rptr. 609.) We will reverse only if the amount awarded is so large or small that we are convinced it is clearly wrong. (Akins v. Enterprise Rent-A-Car Co., supra, 79 Cal.App.4th at p. 1134, 94 Cal.Rptr.2d 448.)
Respondents sought $51,290.10 in attorney fees. The fees included services provided in connection with settlement efforts, the demurrer to the original complaint, the demurrer to the FAC, discovery issues and putative class issues including appellant's counsel's contacts with respondents' clients and former clients, a motion to disqualify appellant's counsel, appellant's motion for reconsideration, and the motion for attorney fees.
In ruling on the attorney fees motion, the trial court observed: "Mr. Leviton [respondents' counsel] is a very qualified attorney. He's got an impressive background. He had to do a lot of work in this case. This was a full-scale onslaught. There were moves to discover all of his clients' finances, the identities of his clients, all the time sheets, all the billings to his clients. He couldn't take that lying down. . . . There were attempts by you [appellant's counsel] or by somebody in your office or by [appellant] to contact [Cohen's] clients and tell his clients that he's quote, `bad news,' end quote. He had to do something about that. This was he was under attack. He had been sued for fraud. So I I don't blame them for spending a lot of money and a lot of resources early on to try to eliminate this lawsuit." The trial court denied fees for work done up to the day that the Cappiello decision was depublished, July 11, 2001.
This case presented a novel legal question whether a law corporation's failure to register with the State Bar results in private remedies. The issue was presented in the context of a class action. The amount involved included over four years of income, punitive damages, and statutory damages. Respondents were successful in resolving the matter at the demurrer stage, saving additional litigation expenses. The trial court awarded significantly less than the amount requested by respondents. We conclude that the trial court did not abuse its discretion.
DISPOSITION
The judgment appealed from is affirmed. Respondents shall recover their costs of appeal from appellant.
We concur: BOREN, P.J., and ASHMANN-GERST, J.
NOTES
[1] We hereby decline appellant's request, filed August 6, 2002, that we take judicial notice of proceedings in a different action which occurred after the appeal herein. (See In re Marriage of Folb (1975) 53 Cal.App.3d 862, 877, 126 Cal.Rptr. 306, disapproved on other grounds in In re Marriage of Fonstein (1976) 17 Cal.3d 738, 749, fn. 5, 131 Cal.Rptr. 873, 552 P.2d 1169.)
[2] Cappiello, Hofmann & Katz, P.C. v. Boyle, a 2001 opinion formerly published at 87 Cal. App.4th 1064 (Capiello), relying upon Birbrower, concluded that an unregistered corporation is barred from recovering compensation for any legal services it provides. The case was ordered depublished July 11, 2001. Capiello was relied upon by Olson, below. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1862970/ | 769 So. 2d 1214 (2000)
Carole S. FORD
v.
STATE of Louisiana through the DOTD, et al.
No. 2000-C-1935.
Supreme Court of Louisiana.
September 27, 2000.
Denied.
VICTORY and TRAYLOR, JJ., would grant the writ. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261429/ | 285 Pa. Super. 534 (1981)
428 A.2d 174
COMMONWEALTH of Pennsylvania,
v.
George J. McDONALD, Appellant.
Superior Court of Pennsylvania.
Submitted December 6, 1979.
Filed April 3, 1981.
*535 Richard M. Meltzer, Philadelphia, for appellant.
Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Before BROSKY, WICKERSHAM and ROBERTS, JJ.[*]
WICKERSHAM, Judge:
On or about March 25, 1975, defendant-appellant, George J. McDonald was arrested and charged with burglary, conspiracy and other criminal activity.
On August 26, 1975 he appeared before the Honorable Robert W. Honeyman of Montgomery County in a non-jury trial. He was found guilty of the various crimes charged and, through his counsel filed timely post-verdict motions. After denial of post-verdict motions and a sentence of not less than ten nor more than twenty years on the burglary charge, the defendant appealed to this court.
Our court affirmed the judgment of sentence and a petition for allowance of appeal to the Supreme Court of Pennsylvania was subsequently denied.
Thereafter, defendant represented by new counsel filed a petition under the Post Conviction Hearing Act.[1]
*536 The thrust of defendant's petition was that he had been denied effective assistance of counsel at his original non-jury trial before Judge Honeyman. Specifically, he complained that his jury trial colloquy was defective because he had not been advised on the record that he had a right to participate in the selection of the jury.
Judge Honeyman in an Opinion dated January 12, 1979 found the PCHA petition to be without merit, holding that although the appellant was not expressly told that he had the right to participate in the jury selection, nonetheless, his long criminal experience and criminal court experience including jury trials gave him adequate knowledge of criminal procedure to make the colloquy that was held constitutionally effective. Judge Honeyman discussed and distinguished Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978) as well as Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973).
Without regard to Judge Honeyman's analysis, we need not reach that issue because after George J. McDonald took an appeal to our court from the January 12, 1979 order dismissing his PCHA petition, it was discovered that the trial record was not complete.
Although the instant appeal was pending in our court, the lower court proceeded under the provisions of Pa.R.A.P. 1926 which permits the lower court to correct an omission in the record and to certify and transmit a supplemental record.[2]
*537 On November 9, 1979, a hearing was held before Judge Honeyman at which time and place a court reporter of the original non-jury trial, armed with a trial testimony recording, was able to satisfy the lower court that the defendant-appellant had indeed been advised that he had a right to personally participate in the selection of a jury.
As long ago as Commonwealth v. Claudy, 378 Pa. 429, 106 A.2d 401 (1954), it was held to be well settled that the courts have the power to correct clerical errors in the record. In the Claudy case, a capital case, the record failed to reveal that the prisoner was represented at a vital stage of proceedings, whereas in fact he was. As the Supreme Court said in allowing the record correction:
This controls the present case. Although the fact of presence was denied, the contrary was conclusively established and therefore with the record corrected, as it can be, by the court imposing the sentence, the writ must be denied. To rule otherwise would be against common sense, justice and established law.
Id., 378 Pa. at 433, 106 A.2d at 402.
The order of court of January 12, 1979 dismissing defendant-appellant's post conviction hearing act petition is affirmed.
BROSKY, J., files a concurring opinion.
BROSKY, Judge:
I agree with the result reached by Judge Wickersham in light of the corrected transcript.[1] I believe, however, an additional comment would be appropriate about the trial court's reasoning that a defendant who has had previous trial experience may be accorded fewer constitutional rights.
If we were to endorse a policy permitting flexible procedural requirements of a valid waiver, there could be no standard by which courts would know what rights to accord *538 each defendant. Legitimizing the validity of an uninformed waiver on the basis of an assumed understanding by a defendant often may be correct, however, it may also represent a self-serving rationalization of the court. Accordingly, I am not satisfied with Judge Honeyman's analysis found in his opinion of January 12, 1979 in which he stated:
In the colloquy he was not expressly told he had the right to participate in the jury's selection. The defendant, at the time, was over 36 years of age and had a criminal record that had exposed him to the criminal courts at least 23 times, including jury trials. He was represented by an experienced criminal trial attorney who had, previous to trial, explained to defendant the alternatives of jury trial, non-jury trial and a plea of guilty. He was told, in the colloquy, that his own lawyer would select the jury with the Assistant District Attorney. From all of this, we conclude that he clearly had an understanding of the essential ingredients of a jury trial as required by Williams and Morin.
The requirements of the colloquy have been stated in Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973), and restated in Commonwealth v. Morin, 477 Pa. 80, 85, 383 A.2d 832, 834 (1978) where the Supreme Court said:
The colloquy must indicate, at a minimum, that the defendant knew the essential protections inherent in a jury trial a well as the consequences attendant upon a relinquishment of those safeguards. Among the "essential ingredients of a jury trial," an understanding of which the accused must possess before a knowing and intelligent jury trial waiver can be made, are the requirements that the jury be composed of one's peers chosen from members of the accused's community, that the accused has the right to participate in the selection of the jury, and that every member of that jury must be convinced, beyond a reasonable doubt, of the accused's guilt. Commonwealth v. Williams, [supra.]
(Emphasis added.)
The standard is a minimal requirement. No discretion is permitted the trial court. Thus, I strongly believe that *539 under no circumstances can the practice undertaken by Judge Honeyman to legitimize the colloquy presented at trial as initially recorded be acceptable.
NOTES
[*] Justice Samuel J. Roberts of the Pennsylvania Supreme Court is sitting by designation.
[1] Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. § 1180-1 et seq.
[2] Pa.R.A.P. 1926 provides:
If any difference arises as to whether the record truly discloses what occurred in the lower court, the difference shall be submitted to and settled by that court after notice to the parties and opportunity for objection, and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the lower court either before or after the record is transmitted to the appellate court, or the appellate court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the appellate court.
[1] Appellant's supplemental Brief indicates the corrected testimony included in the colloquy informed McDonald that he had a personal role in jury selection. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312870/ | John J. Tharp, Jr., United States District Judge
A group of self-described mom and pop investors brought a class action complaint in DuPage County Circuit Court against the defendants for breach of fiduciary duty in connection with investments in a mutual fund called "KZSIX." The complaint alleges that the defendants failed to disclose their conflicts of interest relating to the fund, misrepresented KZSIX's susceptibility to market downturns, and transferred the plaintiffs' investments into KZSIX without the investors' affirmative and informed consent to do so. As a result of being invested in KZSIX, the investors allegedly lost millions of dollars and incurred fees that were far greater than industry norms. The defendants removed the case to this Court, contending that the Securities Litigation Uniform Standards Act ("SLUSA") requires both removal and dismissal of the lawsuit. Eight of the nine plaintiffs voluntarily dismissed their claims without prejudice. Notice of Voluntary Dismissal, ECF No. 22. The remaining plaintiff, Theresa Portell, moved to remand, arguing that the lawsuit is based upon the mismanagement of an existing investment, not, as would be required for SLUSA preclusion, any material misrepresentation that induced investors to purchase, sell, or hold a security. Because the alleged misrepresentations and omissions of material facts are a linchpin of this suit and were made in connection with the purchase of the KZSIX shares, this case falls squarely within the ambit of SLUSA preclusion. Portell's motion to remand, ECF No. 17, is therefore denied and the defendants are granted leave to refile their motion to dismiss, *1029as to which the Court deferred consideration pending resolution of the remand motion.
BACKGROUND
Portell invested funds with defendant Brookstone Capital Management, LLC ("BCM"), of which defendant Nadim Khalil "Dean" Zayed serves as president and CEO. Portell contends that BCM and Zayed owed her a duty to, among other things, "provide full and fair disclosure of all material facts" and "[d]isclose all conflicts of interest that might incline them, consciously or unconsciously, to render advice that is not disinterested." Notice of Removal Under 28 U.S.C. §§ 1441 and 1446 Pursuant to the Securities Litigation Uniform Standards Act, Ex. A, Class Action Complaint ("Compl.") ¶¶ 33-35, ECF No. 1-1.
Before August 10, 2015, Portell's funds were invested in BCM's ZEGA High-Probability Options Strategy ("HiPOS"). In 2014, Zayed formed defendant Kaizen Advisory ("Kaizen") and created a mutual fund called the "Kaizen Hedged Premium Spreads Fund" ("KZSIX"). Zayed owns at least 95% of Kaizen and is the sole beneficial owner of BCM. At all relevant times to this lawsuit Zayed was the "beneficial controlling person" of both BCM and Kaizen. Id. ¶ 42. KZSIX generally followed the same investment objective as HiPOS, except BCM claimed that KZSIX was a lower risk investment because it employed an additional hedging strategy intended to offset losses during market declines. In a July 2015 letter, BCM announced to its clients that Zayed and BCM would transfer some client investments from HiPOS to KZSIX unless the clients affirmatively opted out of the transaction. Defs.' Joint Resp. in Opp'n to Pls.' Mot. to Remand ("Defs.' Resp."), Ex. A, Form Letter from BCM to Clients dated July 10, 2015 ("July Letter") 1, ECF No. 26-1 ("If you accept this change there is nothing that you need to do as the account will automatically move to the KZSIX fund. Should you not want this change, please contact your Investment Advisor Representative to discuss other investment options.").1 The following month, Zayed transferred Portell's funds from HiPOS to KZSIX.
Portell alleges that the defendants "promoted" the KZSIX fund to its HiPOS clients, Compl. ¶ 76, and transferred client assets into the fund to enrich themselves rather than their clients. More specifically, the complaint alleges that BCM (and by extension Zayed) incurred trading expenses under HiPOS, but the structure of the KZSIX investment allowed them to push those expenses onto the fund investors. Investing in the KZSIX fund also allowed Zayed to obtain additional fees from fund investors because he was able to "double-dip" by obtaining fees from both BCM and Kaizen due to his ownership of both entities. Id. ¶¶ 71-73, 82-84. It also allowed the defendants to use the plaintiffs as unknowing "guinea pigs" to test the viability of the KZSIX strategy before marketing it to new potential clients. Id. ¶ 110. And the test didn't go well. The complaint alleges that "KZSIX was dramatically more susceptible to the volatility *1030experienced by the broader markets than BCM represented it to be." Id. ¶ 101.
The defendants allegedly failed to disclose these conflicts arising from Zayed's ownership of both BCM and Kaizen to Portell and the other HiPOS investors before executing the KZSIX transactions. And investors who bought shares of KZSIX, she maintains, "could not have discovered the conflicts of interest of BCM, Kaizen Advisory, and Zayed inherent in their KZSIX transactions through a reasonable inquiry or inspection."Id. ¶¶ 112, 124, 135. The complaint alleges that Zayed and BCM breached the fiduciary duties they owed to their HiPOS investors by "concealing [their] conflicts of interest from Plaintiffs at all times" and "[f]ailing to receive affirmative informed consent from Plaintiffs and the Class to waive" those conflicts. Id. ¶¶ 110, 122. Kaizen allegedly aided and abetted the breach by providing Zayed with an entity through which to engage in self-dealing.
The complaint defines the proposed class to include "[a]ll persons who were investment advisory clients of [BCM] at some point from August 1, 2015 until August 20, 2015; were invested in [HiPOS] prior to August 3, 2015; and held shares in [KZSIX] as of August 20, 2015." Id. ¶ 18. The defendants removed this case from DuPage County Circuit Court pursuant to the Securities Litigation Uniform Standards Act, 15 U.S.C. §§ 77p and 78bb. Portell moved to remand, arguing that the Complaint alleges only state-law breach of fiduciary duty and aiding-abetting claims. For their part, the defendants maintain that removal was proper and that SLUSA requires dismissal of the complaint.
DISCUSSION
I. SLUSA Preclusion
The Securities Litigation Uniform Standards Act ("SLUSA") requires that covered class actions based upon state law that allege fraudulent conduct in connection with the purchase or sale of a covered security be removed from state to federal court and dismissed. 15 U.S.C. § 77p(b) - (c) ; see also 15 U.S.C. § 77bb(f)(1)-(2). In 1995, Congress passed the Private Securities Litigation Reform Act ("PSLRA"), 15 U.S.C. §§ 77z-1 and 78u-4, which imposed heightened pleading requirements in securities fraud actions. See 15 U.S.C. § 78u-4(b). Congress then enacted SLUSA to authorize removal (and require dismissal) of covered class actions alleging securities fraud filed in state court in order to "prevent plaintiffs from migrating to state court in order to evade rules for federal securities litigation in [the PSLRA]." Brown v. Calamos , 664 F.3d 123, 124 (7th Cir. 2011) (citation omitted).
SLUSA provides:
No covered class action based upon the statutory or common law of any State or subdivision thereof may be maintained in any State or Federal court by any private party alleging-
(1) an untrue statement or omission of a material fact in connection with the purchase or sale of a covered security; or
(2) that the defendant used or employed any manipulative or deceptive device or contrivance in connection with the purchase or sale of a covered security.
15 U.S.C. § 77p(b) ; see also 15 U.S.C. § 78bb(f)(1). Subsection (c) further provides:
Any covered class action brought in any State court involving a covered security, as set forth in subsection (b), shall be removable to the Federal district court for the district in which the action is pending, and shall be subject to subsection (b).
15 U.S.C. § 77p(c) ; see also 15 U.S.C. § 78bb(f)(2). Portell does not dispute that *1031her lawsuit qualifies as a "covered class action," that her claims are based upon state law, or that the securities at issue qualify as "covered" securities. See Pls.' Mem. in Supp. of Mot. for Remand ("Mem.") 6, ECF No. 18. The question for the Court's consideration is therefore limited to whether the complaint alleges "an untrue statement or omission of a material fact in connection with the purchase or sale of a covered security." 15 U.S.C. § 77p(b)(1) ; see also 15 U.S.C. § 78bb(f)(1)(A).2 If the answer is yes, SLUSA requires both removal and dismissal of the lawsuit. If the answer is no, then Portell's motion to remand must be granted because the Court would not have jurisdiction over Portell's state law breach of fiduciary duty claims.3
SLUSA "is designed to prevent persons injured by securities transactions from engaging in artful pleading or forum shopping in order to evade limits on securities litigation that are designed to block frivolous or abusive suits." Holtz v. JPMorgan Chase Bank, N.A. , 846 F.3d 928, 930 (7th Cir. 2017) (citing Merrill Lynch, Pierce, Fenner & Smith v. Dabit , 547 U.S. 71, 81-84, 126 S.Ct. 1503, 164 L.Ed.2d 179 (2006) ). Accordingly, in assessing whether Portell's claims are precluded, the court must look beyond the labels the complaint employs to describe the claims and legal theories asserted, and instead analyze the substance of those claims. See Holtz , 846 F.3d at 930 (SLUSA "does not ask what state-law theory a plaintiff invokes."); see also Brown , 664 F.3d at 130-31 (SLUSA precluded claims because "[alt]hough the suit [wa]s for breach of fiduciary obligations, the breach appear[ed] to rest on an allegation of fraud, as is often the case."); Kutten v. Bank of Am. , 530 F.3d 669, 671 (8th Cir. 2008) (allegations of "deceiving," "failing to be honest," "omitting a material fact," and "failing to disclose" are subject to SLUSA preclusion regardless of the label on the cause of action in which they are included). Where plaintiffs attempt to "disguise what amount to claims of securities fraud as claims for negligence and breach of fiduciary duty under state law," that "is not enough to evade preclusion of those claims under SLUSA." Potter v. Janus Inv. , 483 F.Supp.2d 692, 702 (S.D. Ill. 2007). Plaintiffs "cannot sidestep SLUSA by omitting" from their complaint allegations regarding the elements of fraud, such as those "of scienter or reliance." Holtz , 846 F.3d at 930.
Accordingly, any claims, regardless of their labels, relating to a purchase or sale of a covered security "that depend on the nondisclosure of material facts must proceed under the federal securities laws exclusively." Holtz , 846 F.3d at 929-30. But what does it mean to say that a claim "depends" on allegations of nondisclosure? Although there is considerable debate among the circuit courts of appeal concerning "the scope of SLUSA's 'misrepresentation or omission of a material fact' prohibition,"4 the Seventh Circuit has held that claims brought under a breach of fiduciary duty banner are precluded by SLUSA where they can reasonably be construed as *1032involving nondisclosures that could be actionable under the securities laws. In Holtz (which along with Goldberg v. Bank of Am., N.A. , 846 F.3d 913 (7th Cir. 2017), cert. denied , --- U.S. ----, 138 S.Ct. 173, 199 L.Ed.2d 42 (2017), represents the Circuit's most recent exposition concerning the scope of SLUSA preclusion), the Seventh Circuit concluded that SLUSA precluded a suit premised on allegations that a bank's investment advisors labored under a conflict of interest because they earned more for recommending the bank's mutual funds than other funds, notwithstanding the plaintiff's disavowal of any intent to rely on nondisclosure of that conflict in advancing her state law contract and breach of fiduciary duty claims. 846 F.3d at 930. The conduct alleged, the court held, necessarily involved misrepresentations and omissions that could support a securities fraud claim because disclosure was critical to the plaintiff's claim whether based on state or federal law. Id. And because the complaint set forth facts that could give rise to a securities claim premised on nondisclosure, the court of appeals held that it falls within SLUSA's ambit: "A statement along the lines of 'we will act in your best interest' plus nondisclosure of a competing private interest is the basis of many securities actions," and after SLUSA's enactment, "a plaintiff cannot proceed by omitting the securities theory."5 Id. at 932. In Goldberg , the court of appeals confirmed the point, holding that a suit arising from the non-disclosure of a mutual fund fee was precluded notwithstanding its characterization in the complaint as a breach of contract and fiduciary duty because the allegations of non-disclosure brought the claim "well inside the bounds of securities law." 846 F.3d at 916. In short, where "a claim could be pursued under the federal securities law, then it is covered by [SLUSA] even if it also could be pursued under state contract or fiduciary law." Id.6 This case presents another instance in which SLUSA precludes claims involving nondisclosure of a conflict of interest, notwithstanding the breach of fiduciary duty label appended to each count of the complaint.
II. Alleged Misrepresentations and Omissions of Material Fact
The complaint plainly alleges, and the "breach of fiduciary duty" theories *1033heavily rely on, misrepresentations and omissions of material fact by the defendants, starting with and arising from their failure to disclose conflicts related to Zayed's ownership of both BCM and Kaizen. A central premise of the complaint is that the defendants "had numerous undisclosed conflicts," ¶ 2 (emphasis added), and that as a consequence they never received "affirmative informed consent" to waive those conflicts, ¶ 110(a), and invested in KZSIX without "authority" to do so, ¶ 110(d). To have "authority" to make the KXSIX transfers, the defendants would have had to "make a full disclosure," id. ¶ 45; the claim that the investors failed to provide informed consent is necessarily a nondisclosure claim, see Goldberg , 846 F.3d at 920 (Flaum, J., concurring) ("to have 'authorized' the fees, the Bank would have had to have disclosed them to him; so the 'authorization' claim was still fundamentally tied to a material misrepresentation or omission"). In addition, Zayed was allegedly motivated to engineer the transfer of investments from HiPOS to KZSIX (and presumably also motivated to omit sharing details about his alleged conflicts) because he was able to "double-dip" when earning fees from both BCM and Kaizen on funds invested in KZSIX due to his ownership of both entities. Zayed also was allegedly driven by a desire to push trading expenses onto the putative class members and test the viability of the KZSIX fund before promoting it to prospective clients. Portell further alleges that KZSIX was more susceptible to market volatility than BCM represented it to be. These alleged misrepresentations and disclosure omissions fall well within the ambit of SLUSA preclusion because "[a] fiduciary that makes a securities trade without disclosing a conflict of interest violates federal securities law. Likewise, a broker-dealer that fails to achieve best execution for a customer by arranging a trade whose terms favor the dealer rather than the client has a securities problem, not just a state-law contract or fiduciary-duty problem." Holtz , 846 F.3d at 932 (internal citation omitted); see also Goldberg , 846 F.3d at 916 ("A claim that a fiduciary that trades in securities for a customer's account has taken secret side payments is well inside the bounds of securities law.").
Portell contends in her reply brief that even if the complaint alleges misrepresentations and omissions, those misrepresentations and omissions are not material. Pls.' Reply in Supp. of Mot. for Remand ("Reply") passim , ECF No. 27. "An omission is 'material' when a reasonable investor would deem it significant to an investment decision." Holtz , 846 F.3d at 934. Portell's contention regarding the immateriality of her own allegations is impossible to square with her theory of the case. Her claims are grounded in allegations that the defendants' failures to accurately represent information, such as Zayed's conflicts of interest and KZSIX's ability to withstand market downturns, duped the investors into going along with the KZSIX transaction and had a materially negative effect on their investments. Cf. Holtz , 846 F.3d at 934 ("[The plaintiff] herself deems the [defendant]'s incentives material to investments; that's the basis of this suit."). In fact, Portell expressly describes at least some aspects of Zayed's conflict of interest as material: "Zayed benefitted from the payment of both advisory fees and fund management fees from Plaintiffs and the Class. This is a material conflict of interest ...." Compl. ¶ 84 (emphasis added). Where, as here, misrepresentations and omissions concerning the defendants' alleged conflicts of interest constitute the foundation of the plaintiff's claim for relief, they are plainly material.
*1034III. "In Connection with"
To fall within SLUSA's ambit, the relevant misstatements and omissions must have been made "in connection with" the purchase or sale of a covered security. It is as to this requirement that Portell makes her principal stand. She says that her complaint is limited to an assertion that the defendants "mismanaged an existing investment rather than induc[ed] any action whether to purchase, sell, or hold a security." Mem. 2. The defendants, she maintains, "were negligent in implementing a complex strategy that they were not qualified to employ in order to maximize fees rather than return on Plaintiff's investment." Id. As a threshold matter, even that description belies the negligence characterization Portell ascribes to her claims, because it concedes that the defendants were engaged in an undisclosed scheme to maximize their fees rather than the return to their investors. That's intentional conduct that sounds in fraud, not negligence; Portell alleges not that the defendants acted inadvertently but that the defendants acted for their own benefit without telling the investors that they were doing so.
More importantly, Portell's contention that "these claims simply boil down to Defendants['] negligence in employing a complex investment scheme," Mem. 7, ignores that the putative class members were not invested in that scheme until the defendants transferred their investments from another fund. Those transfers are alleged in the complaint to have been effected on the basis of misrepresentations and omissions (i.e. , fraud). To invest the putative class members' money in the KZSIX fund, the defendants had to sell the investment in HiPOS and purchase shares in the KZSIX fund. Portell has not disputed that the securities that the defendants sold to exit the HiPOS investment or the securities purchased to enter the KZSIX investment were covered securities. Indeed, Portell alleges that KZSIX was an "open fund registered under the Investment Company Act of 1940," Compl. ¶ 53, which meets the statutory definition of a covered security under SLUSA, see 15 U.S.C. § 77r(b)(2) ("A security is a covered security if such security is a security issued by an investment company that is registered ... under the Investment Company Act of 1940."). Portell's unsupported contention that "[t]here is no allegation in the Complaint regarding the purchase or sale of a security," Reply 1, is simply wrong. Although the putative class members did not personally place the KZSIX transaction, the defendants placed it as their agent after giving them the option to opt out. Defs.' Resp., Ex. A, July Letter, ECF No. 26-1 ("If you accept this change there is nothing that you need to do as the account will automatically move to the KZSIX fund. Should you not want this change, please contact your Investment Advisor Representative to discuss other investment options."). "[T]he 'in connection with' requirement is satisfied when a broker makes a purchase or sale as an investor's agent." Holtz , 846 F.3d at 934 ; see also Dabit , 547 U.S. at 85, 126 S.Ct. 1503 ("[I]t is enough that the fraud alleged 'coincide' with a securities transaction-whether by the plaintiff or by someone else.").
The alleged misrepresentations and omissions here were "made in connection with an impending investment decision." Holtz , 846 F.3d at 933. The complaint alleges that Zayed concealed his conflicts of interests from the investors "at all times" and that, specifically, Zayed had failed to make a full disclosure "[w]hen Zayed entered the trades for KZSIX on behalf of" the investors. Compl. ¶¶ 45, 110, 122, 132 (emphasis added). And the July 2015 letter that contained various representations relating to the KZSIX investment-including *1035representations regarding KZSIX's ability mitigate losses during a market decline, which Portell alleges were untrue, see Compl. ¶ 101-was sent to the investors about a month before the impending August 2015 KZSIX investment. Moreover, regardless of the timing of the alleged misrepresentations and omissions, the Supreme Court has interpreted the "in connection with" language of § 77p(b)(2) broadly, holding that even a decision to hold a security qualifies if the decision to continue holding the security is affected by the alleged fraud. Dabit , 547 U.S. at 85-87, 126 S.Ct. 1503. So, even had the alleged misstatements and omissions followed, rather than preceded, the purchase of the KZSIX shares, they would still be subject to preclusion as having contributed to the investors' decision not to withdraw from that investment.
This case is readily distinguished from Gavin v. AT & T Corp. , 464 F.3d 634 (7th Cir. 2006), on which Portell heavily relies for her "in connection with" argument. In Gavin , the alleged "fraud" solely concerned a communication about how shareholders could exchange their shares of MediaOne, a company that had been merged into AT & T, for shares of AT & T. The Seventh Circuit held that the alleged fraud was not "in connection with" the purchase or sale of a security because the merger had been consummated before the alleged fraud, and the mechanical process of how to obtain the new shares, the Court held, had no more to do with the purchase or sale of a security (the merger) "than if [defendant] had asked the MediaOne shareholders 'do you want your AT & T shares sent to you by regular mail or by courier?' " Id. at 638. But what is alleged here is not a misstatement about ministerial acts that were required to effect the transfer of HiPOS shares into KZSIX after investors had agreed to (or acquiesced in) that transaction but rather misstatements and omissions relevant to and contemporaneous with the decision about whether to accept the transfer. Holtz distinguished Gavin on precisely this basis, see 846 F.3d at 933, and Gavin itself made the point, noting that "[t]his would be a different case from the standpoint of SLUSA had the MediaOne shareholders been induced by fraudulent representations by AT & T to vote for the merger." 464 F.3d at 638.7
*1036Portell's argument that the complaint doesn't allege that she was induced to invest in KZSIX takes us back to SLUSA's imperviousness to artful pleading. Portell contends that hers is really a negligence claim because it does not plead reliance and so would not support a securities fraud action under § 10(b) and Rule 10(b)(5). As noted above, supra at 8 n.6, that argument holds no water; "a plaintiff cannot sidestep SLUSA by omitting allegations of scienter or reliance." Holtz , 846 F.3d at 930. SLUSA preclusion does not turn on whether federal law provides a cause of action. The Supreme Court expressly held in Dabit that SLUSA precludes not only state law class-action claims brought by plaintiffs who have a private remedy under federal law, but "also pre-empts state-law class-action claims for which federal law provides no remedy." 547 U.S. at 74, 126 S.Ct. 15038 ; see also Goldberg , 846 F.3d at 916 (contention "that only state-law claims that overlap winning securities claims are affected" by SLUSA is "wrong"); Holtz , 846 F.3d at 933 (" Dabit holds that SLUSA applies whether or not a federal securities theory would succeed."). SLUSA was designed to preclude securities class actions under any state law theory, not just those that are broad enough to subsume all of the requirements of a federal securities claim. If, as Portell argues, the complaint does not suffice to state a securities fraud claim under § 10(b) and Rule 10(b)(5), but it still involves a misrepresentation or omission in connection with a securities transaction, that is a reason to conclude that the putative class claim is subject to SLUSA preclusion, not exempt from it.
SLUSA therefore authorizes removal of the complaint and the motion to remand is therefore denied. Portell's attempt to double-down on her remand motion by asserting that she should also be awarded fees because the removal was objectively unreasonable itself borders on the frivolous and is denied.
IV. Dismissal
The Court previously denied the defendants' motion to dismiss without prejudice to first address the remand motion, but denial of the remand motion seemingly also requires dismissal of this action. Title 15 Subsection 77p(c) authorizes removal when the lawsuit meets the criteria set forth in Subsection 77p(b), which requires dismissal. Having concluded that the allegations in the complaint meet the criteria set forth in Subsection (b), "neither the district court nor the state *1037court may entertain [the action], and the proper course is to dismiss." Kircher v. Putnam Funds Trust , 547 U.S. 633, 644, 126 S.Ct. 2145, 165 L.Ed.2d 92 (2006).
The dismissal required, moreover, is with prejudice. The Seventh Circuit has taken a skeptical view of dismissals that permit amendment of the complaint to remove allegations that would implicate the issue of whether there had been misrepresentations or omissions made in connection with the purchase or sale of securities, recognizing that "almost all federal securities suits could be recharacterized as contract suits about the securities involved." Holtz , 846 F.3d at 930-31. In Brown , the court of appeals further noted the problem with allowing amendments to SLUSA-precluded complaints:
[O]nce the case shorn of its fraud allegations resumes in the state court, the plaintiff-who must have thought the allegations added something to his case, as why else had he made them?-may be sorely tempted to reintroduce them, and maybe the state court will allow him to do so. And then SLUSA's goal of preventing state-court end runs around limitations that the Private Securities Litigation Reform Act had placed on federal suits for securities fraud would be thwarted.
664 F.3d at 128 (emphasis in original). The Brown panel went on to hold that the forum manipulation rule applicable in removal cases required dismissal of the suit with prejudice following the SLUSA removal. Id. at 131 (amendment of complaint "to delete the passage that injected fraud into the case ... is contrary to the 'forum manipulation' rule recognized in Rockwell Int'l Corp. v. United States , 549 U.S. 457, 474 n.6, 127 S.Ct. 1397, 167 L.Ed.2d 190 (2007)"; given reintroduction risk, district court would not have been required to permit amendment "even if the forum manipulation rule were not a bar as well ") (emphasis added). Dismissal with prejudice therefore seems to be required here.
Neither Holtz nor Goldberg , both of which affirmed dismissals with prejudice, call Brown 's no-amendment holding into question. To the contrary, neither offered an opportunity to amend despite acknowledging that it might have been possible for the plaintiffs in those cases to have set forth claims that did not implicate misstatements and omissions. In Holtz , the court concluded that "Holtz would have a contract claim free of a securities component" had she alleged that the Bank broke its promise by mistake, but affirmed the dismissal without opportunity to replead because she had failed to make such fraud-free allegations in the removed complaint. 846 F.3d at 932. Similarly, in Goldberg , Judge Flaum stated in his concurring opinion that the Brown panel (of which he was a member) did not address the question of whether SLUSA preclusion can be applied on a claim-by-claim basis, but nevertheless concluded that preclusion of the entire complaint was required because, although the plaintiff might have been able to plead a claim that did not involve a material misrepresentation or omission, he "did not take this approach" in the removed complaint. 846 F.3d at 920.
Here, it is also possible to imagine a complaint that does not involve misrepresentations or omissions. Portell has insisted (albeit unconvincingly) that her claim is really for negligence, not fraud, and a complaint that alleged only that the defendants negligently designed, tested, and managed the KZSIX fund, without relying on undisclosed conflicts of interest or otherwise implicating the information provided in connection with the KZSIX investment, might not fall within SLUSA's ambit. But that is not this complaint. As presented *1038here, the breach of fiduciary claims rely heavily on allegations of undisclosed conflicts of interest and lack of informed consent. And, for the reasons discussed, those claims are subject to SLUSA removal-which also appears to require dismissal of the putative class action complaint with prejudice.
It bears noting that dismissal would not leave Portell without a remedy. If, after dismissal, she wishes to reassert any claims-even those that rely on the alleged misrepresentations and nondisclosures alleged her present complaint-she may do so in her own individual capacity; SLUSA simply precludes her ability to do so in a "covered class action"-that is, an action involving fifty or more identified plaintiffs acting in their individual capacities, 15 U.S.C. § 78bb(f)(5)(B)(i)(I), or as a representative of other similarly situated individuals without regard to the size of the proposed class, 15 U.S.C. § 78bb(f)(5)(B)(i)(II). See Nielen-Thomas v. Concorde Inv. Servs., LLC , 914 F.3d 524, 530 (7th Cir. 2019).
Because the Court has not yet afforded Portell an opportunity to address dismissal, however, the case will not yet be dismissed. A status hearing will be held on Friday, March 29, 2019 at 9:00 a.m. to address whether, in light of the denial of her remand motion, Portell seeks to contest dismissal of the putative class-action complaint. If Portell determines, in advance of the status hearing, that she does not wish to contest dismissal, per se, but wishes to appeal the denial of her remand motion, she may file a voluntary notice of dismissal with prejudice noting the reservation of her right to appeal the denial of her motion to remand. In the event of such filing, the status hearing will be stricken, the case will be terminated, and a final, appealable, judgment in favor of the defendants will be entered.
* * *
For the reasons stated above, Portell's motion to remand [17] is denied.
The Court considers the entire July 2015 letter because it is central to Portell's claims and is both referenced in and attached to (in part) the complaint. See Menominee Indian Tribe of Wisconsin v. Thompson , 161 F.3d 449, 456 (7th Cir. 1998) ("Documents attached to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to his claim." (citation and brackets omitted) ); see also Brokaw v. Boeing Co. , 137 F.Supp.3d 1082, 1091-92 (N.D. Ill. 2015) (explaining that material outside of complaint may be considered on motion to remand).
The defendants do not contend that the complaint alleges "that the defendant used or employed any manipulative or deceptive device or contrivance." 15 U.S.C. § 77p(b)(2) ; see also 15 U.S.C. § 78bb(f)(1)(B).
The notice of removal asserts no other basis for the exercise of federal jurisdiction over Portell's claims.
Goldberg v. Bank of Am., N.A. , 846 F.3d 913, 917 (7th Cir. 2017), cert. denied , --- U.S. ----, 138 S.Ct. 173, 199 L.Ed.2d 42 (2017) (Flaum, J., concurring). Judge Flaum's concurring opinion and Judge Hamilton's dissenting opinion in Goldberg describe the competing approaches the circuits have adopted to address this issue.
Although it is of no consequence in this case where the complaint is replete with express allegations about nondisclosure, it bears noting that preclusion does not depend on whether allegations of nondisclosure are express. The nondisclosure in Holtz was implied; the amended complaint expressly disavowed any allegation of "fraud, deceptive practices, misrepresentation, or material omission in connection with the purchase or sale of securities." See Holtz v. JP Morgan Chase & Co. , No. 12-7080 (N.D. Ill.), Am. Class Action Compl. ¶ 1, ECF No. 34. And in Brown , the Seventh Circuit held the suit to be precluded on the basis of implicit misrepresentations and omissions. See 664 F.3d at 126-27 (complaint "is interpreted most naturally as alleging a misrepresentation" even though it "doesn't say this in so many words"; "[a] misleading omission is also alleged, at least implicitly").
The Court does not understand this to mean that preclusion is limited to situations in which a court can conclude that the facts alleged are sufficient to state a federal securities fraud claim; to the contrary, in both Holtz and Goldberg , the court of appeals made clear that preclusion does not turn on whether a complaint pleads a viable securities law claim. See Holtz , 846 F.3d at 930 (holding that "a plaintiff cannot sidestep SLUSA by omitting allegations of scienter or reliance); Goldberg , 846 F.3d at 916 (rejecting premise "that only state-law claims that overlap winning securities claims" are precluded by SLUSA); see also the discussion infra at 14-15. Rather, the Court understands a securities claim that can be "pursued" to be one where "the allegations of the complaint make it likely that an issue of fraud will arise." Brown , 664 F.3d at 128-29.
Portell relies on other easily distinguished cases as well. Her citation to Spielman v. Merrill Lynch, Pierce, Fenner & Smith , 332 F.3d 116 (2d Cir. 2003), for example, is badly off the mark, and not just because her description of the case as one in which "the district court's remand was affirmed," Mem. 7, is simply wrong (the district court ruling was not affirmed on appeal; the court of appeals dismissed the appeal for lack of subject matter jurisdiction and said nothing whatsoever about the merits). Putting that misstatement aside, the district court's remand was based on its view that the alleged misrepresentations were not "in connection with the purchase or sale of a security" because they "did not concern the value" of the securities, Spielman v. Merrill Lynch, Pierce, Fenner & Smith Inc. , No. 01-Civ.-3013, 2001 WL 1182927, at *5 (S.D.N.Y. Oct. 9, 2001) -an argument that the Seventh Circuit expressly rejected in Goldberg , see 846 F.3d at 916 ("[T]he Securities Exchange Act of 1934 forbids material misrepresentations and omissions in connection with securities transactions whether or not the misrepresentation or omission concerns the price, quality, or suitability of the security."). Portell's characterization of Spielman as "controlling" is therefore inexplicable for reasons beyond the fact that cases from other circuits are not controlling on the courts of this circuit in any event.
Green v. Ameritrade , 279 F.3d 590 (8th Cir. 2002) provides another example of Portell's reliance on irrelevant cases. There, the Eighth Circuit held that fraud claims against a firm that provided stock quotes alleged not to have been, as advertised, "real time" quotes, was not subject to SLUSA preclusion because the complaint included no allegations that Portell or other putative class members "used price information provided by the real-time quote service to purchase or sell any particular security." Id. at 597. It is unsurprising, then, that the court concluded that the alleged misrepresentations were not in connection with the purchase or sale of any security. That is simply not the case here, where it is undisputed that Portell purchased and held shares of KZSIX, a mutual fund, contemporaneously with the alleged misrepresentations and omissions.
The Court notes as well that Portell essentially ignores cases from this Circuit that are directly on point, such as Holtz (which Portell cited in reply only on the issue of materiality) and Goldberg (which she did not cite at all). Portell's failure to address these cases forthrightly, even in reply after they feature prominently in the defendants' response, while relying on dated and distinguishable out of circuit cases, does nothing to strengthen her argument.
"Although some case law refers to SLUSA preemption rather than preclusion, SLUSA does not itself displace state law with federal law but makes some state-law claims nonactionable through the class-action device in federal as well as state court." Nielen-Thomas v. Concorde Investment Servs., LLC , 914 F.3d 524, 529 n.5 (7th Cir. 2019) (citing Kircher v. Putnam Funds Tr. , 547 U.S. 633, 636 n.1, 126 S.Ct. 2145, 165 L.Ed.2d 92 (2006) ) (internal quotation marks omitted). | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1212871/ | 129 Ga. App. 645 (1973)
200 S.E.2d 501
STATE OF GEORGIA
v.
CHILES.
48444.
Court of Appeals of Georgia.
Argued September 4, 1973.
Decided September 14, 1973.
Arthur K. Bolton, Attorney General, Courtney Wilder Stanton, Dorothy T. Beasley, Assistant Attorneys General, B. Dean Grindle, Deputy Assistant Attorney General, for appellant.
STOLZ, Judge.
The State of Georgia appeals from an order issued *646 by the Superior Court of Muscogee County restraining the suspension of appellee Chiles' driver's license.
The record discloses that a copy of Chiles' complaint was directed to be served on the Director of the Department of Public Safety. On the date set by the superior court for the matter to be heard, the State of Georgia did not appear by counsel or otherwise. Held:
1. Before a valid judgment can be rendered against the State of Georgia it must affirmatively appear as a matter of record "either (a) that the Attorney General was given five days advance written notice by the adverse party, or his attorney,... or (b) that the Attorney General, or an Assistant Attorney General, was present in person at such trial, ... or (c) that the Attorney General or an Assistant Attorney General has, in writing, waived such notice." Code Ann. § 3-116 (Ga. L. 1956, p. 625). The record in this case is silent as to notice to the Attorney General or a waiver thereof and affirmatively shows that the State of Georgia was not represented by counsel at the hearing.
2. The State of Georgia is not a proper party to an action contesting the suspension of driving privileges. See Code Ann. § 92A-602 (Ga. L. 1951, pp. 565, 567; 1956, pp. 543, 547).
No action can be maintained against the State of Georgia without its prior consent or a constitutional provision. McCoy v. Sanders, 113 Ga. App. 565, 570 (148 SE2d 902) and cits.
Judgment reversed. Eberhardt, P. J., and Pannell, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1125273/ | 779 So.2d 501 (2000)
Brenda A. SPRIDGEON, Appellant,
v.
Timothy M. SPRIDGEON, Appellee.
No. 2D99-4181.
District Court of Appeal of Florida, Second District.
December 8, 2000.
David J. Sockol and Richard MacDonald of Sockol & Associates, P.A., St. Petersburg, for Appellant.
George L. Hayes, III of Powell, Carney, Hayes & Silverstein, P.A., St. Petersburg, for Appellee.
NORTHCUTT, Judge.
Brenda Spridgeon contends the trial court should not have granted Timothy Spridgeon an equitable lien on her homestead. We affirm.
The parties are former spouses who remained friendly after their divorce. Several years after their split, Mr. Spridgeon advanced all the funds for Ms. Spridgeon's purchase of a condominium unit in which to live. Thereafter, Mr. Spridgeon paid for a number of repairs and renovations to the home. Evidence at the bench trial below amply supported the trial court's determination that these expenditures were offered and accepted as loans which would be repaid with proceeds of a mortgage loan Ms. Spridgeon was to obtain from a traditional lending institution. But when Mr. Spridgeon later presented her with the opportunity to apply for a mortgage on relatively favorable terms, she reneged and refused to sign the application. He then sued for an equitable lien on the condominium unit. In due course, the trial court awarded him the lien.
Ms. Spridgeon contends this was error under Zaleznik v. Gulf Coast Roofing Co., 576 So.2d 776 (Fla. 2d DCA 1991), in which we observed that in order to establish an equitable lien on real property our court had required either "circumstances such as fraud or misrepresentation of essential facts upon which the lender or contractor relied in good faith" or "an agreement by the owner of the property to have certain property stand as security for a specific obligation." Id. at 779 (quoting Jennings v. Connecticut Gen. Life Ins. Co., 177 *502 So.2d 66, 68 (Fla. 2d DCA 1965)). Here, the trial court found the Spridgeons had agreed the property would stand as security for a loan from a third party in order to repay the loan at issue. It also concluded that it was necessary to impose an equitable lien to prevent Ms. Spridgeon's unjust enrichment. The court did not find that Ms. Spridgeon had engaged in fraud or misrepresentation. She argues that under Zaleznik these findings are insufficient to support an equitable lien.
We need not determine whether the lien would survive examination under Zaleznik because the Florida Supreme Court later clarified that equitable circumstances other than fraud or misrepresentation, including the prevention of unjust enrichment, are proper grounds for imposing equitable liens on homesteads. See Palm Beach Savings & Loan Assoc. v. Fishbein, 619 So.2d 267 (Fla.1993). In that case, Ms. Fishbein's estranged husband forged her signature on documents granting Palm Beach Savings & Loan a mortgage on their homestead, which was titled in the husband's name alone. He used the proceeds to pay existing mortgages and taxes on the property and for other purposes. The Fishbeins later resolved their divorce proceeding with a settlement agreement founded in part on Mr. Fishbein's false representation that the home was unencumbered. Eventually the court in the dissolution proceeding set aside the agreement for fraud in the procurement and awarded the home to Ms. Fishbein.
In the meantime, the Palm Beach Savings mortgage had fallen into default and the bank had sued to foreclose. The circuit court ruled that Ms. Fishbein had not abandoned her homestead interest in the property and that the mortgage containing her forged signature could not be foreclosed. However, the court imposed an equitable lien on the house to the extent that the bank's funds had been used to satisfy the preexisting mortgages. The Fourth District Court of Appeal upheld the former ruling, but reversed the latter. The court reasoned that an equitable lien may be awarded against homestead property only when the beneficiary of the homestead protection is guilty of fraud or other egregious conduct. See Fishbein v. Palm Beach Savings & Loan Assoc., 585 So.2d 1052 (Fla. 4th DCA 1991).
The Florida Supreme Court quashed that portion of the Fourth District's decision. It held that the bank was entitled to an equitable lien based on the use of its funds to satisfy the preexisting mortgages; otherwise, Ms. Fishbein would be unjustly enriched. The court pointed to its prior decisions in La Mar v. Lechlider, 135 Fla. 703, 185 So. 833 (1939), and Sonneman v. Tuszynski, 139 Fla. 824, 191 So. 18 (1939), in which equitable liens were imposed against homestead properties to prevent unjust enrichment. Moreover, the court wrote, in each case the homestead interest of the innocent spouse of the party whose conduct led to the unjust enrichment was also subject to the equitable lien. See Fishbein, 619 So.2d at 270. The court concluded by noting that since the equitable lien was in the amount of the mortgage proceeds used to satisfy preexisting mortgages, Ms. Fishbein was in no worse position than she had been prior to the execution of the mortgage.
Unlike Ms. Fishbein before her, Ms. Spridgeon cannot maintain her innocence of the circumstances giving rise to this dispute. She knew full well at the time that Mr. Spridgeon was contributing heavily to the price of her shelter, and that he did so based on her promise to post the renovated property as security for a loan with which to repay him. The equitable lien leaves Ms. Spridgeon no worse off than she would have been if she had honored her agreement. On the other hand, to have denied the lien would have left her vastly and unjustly enriched.
Affirmed.
PATTERSON, C.J., and FULMER, J., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1317148/ | 458 S.E.2d 701 (1995)
217 Ga. App. 674
COLLIPP et al.
v.
NEWMAN et al.
No. A95A0443.
Court of Appeals of Georgia.
June 28, 1995.
Gilbert, Harrell, Gilbert, Sumerford & Martin, Wallace E. Harrell, III, Lisa S. Godbey, Fendig, McLemore, Taylor & Whitworth, Phillip R. Taylor, Brunswick, for appellants.
Ashman, Lasky & Cooper, Jeffrey W. Lasky, Savannah, for appellees.
JOHNSON, Judge.
Mr. and Mrs. Steven Newman, Sr., as next friends and guardians of Steven D. Newman, Jr., brought suit against four defendants seeking damages arising from a circumcision performed on Steven, Jr. The suit was filed in Chatham County State Court against Dr. Platon Jack Collipp, a Wayne County resident, who performed the circumcision and Wayne County Memorial Hospital, the facility at which the procedure was performed. Also named in the action were two doctors, both residents of Chatham County, who provided subsequent medical care.
All claims against the two Chatham County defendants were dismissed with prejudice after the Newmans signed a full and final release of all claims against them. Collipp and Wayne County Hospital filed a motion to dismiss or, in the alternative, to transfer the case to Wayne County asserting that venue was no longer proper in Chatham County. The trial court, relying on Carney v. JDN Constr. Co., 206 Ga.App. 785, 790(5), 426 S.E.2d 611 (1992), denied the motion. We granted appellants' application for interlocutory appeal to clarify any confusion which may have been created by Carney regarding the effect on venue after the dismissal of all resident joint tortfeasors.
A defendant is entitled to be sued in the county of his residence. Ga. Const. 1983 Art. VI, § II, Par. VI. Suits against joint tortfeasors residing in different counties may be tried in either county. Ga. Const. 1983, Art. VI, § II, Par. IV. However, proper venue against a nonresident joint tortfeasor may vanish. The venerable principle of vanishing venue was well established at the turn of the century. "[W]here suit is brought against two defendants, one of whom resides in the county, the court has no jurisdiction of the non-resident defendant unless the resident codefendant is liable in the action." (Emphasis *702 supplied.) Ross v. Battle, 117 Ga. 877, 880, 45 S.E. 252 (1903). In Timberlake Grocery Co. v. Cartwright, 146 Ga.App. 746, 747, 247 S.E.2d 567 (1978) this court clarified the concept: "[I]f no judgment is taken against a resident defendant, the court loses venue as to the nonresident defendant(s)...." Addressing the same principle, the Georgia Supreme Court held that where a single suit is brought against several joint tortfeasors in a county where one of them is a resident, and where the resident is found not liable by the jury, and the non-resident defendants are found liable, the court is without jurisdiction to enter judgment against the non-resident defendants. Southeastern Truck Lines v. Rann, 214 Ga. 813, 815, 108 S.E.2d 561 (1959).
In Motor Convoy v. Brannen, 194 Ga.App. 795, 391 S.E.2d 671 aff'd. 260 Ga. 340, 393 S.E.2d 262 (1990), this court held the requirement that a judgment be entered against the resident tortfeasor can be satisfied by entry of a consent judgment. "[A] consent judgment recognizes that a verdict against the resident defendant was authorized.... The controlling fact which governs the retention of jurisdiction over the non-resident is the legal resolution of liability on the part of the resident." Id. at 797. Therefore, because a final judgment had been entered against the resident joint tortfeasor, regardless of whether the judgment was by consent, venue did not vanish.
In Carney v. JDN Constr. Co., supra, this court was asked to consider the denial of a motion to transfer. Relying on Motor Convoy v. Brannen, supra, we held: "Although appellant subsequently settled with JDNCC and JDNEI, there has been no finding that JDNCC and JNDNEI are not liable to appellant. It follows that the trial court correctly denied the City's motion to transfer the action to Gordon County." (Emphasis in original.) Carney, supra, at 790(5), 426 S.E.2d 611. It appears the trial court in our case read Carney as holding either that the settlement was analogous to a consent judgment, or that an affirmative finding of nonliability would be required to justify a conclusion that venue had vanished. Perhaps because the denial of the motion to transfer was a relatively minor issue in the Carney appeal, we did not make it clear in the opinion that JDNCC and JDNEI remained parties in the case. The record in Carney made it clear that the settlement agreement was reached during the trial and that JDNCC and JDNEI were never removed from the case. Rather, the agreement was that the case was settled as to them whichever way the jury decided the case. Their dismissal from the case was not a provision of the settlement with the plaintiff and a jury could have found them liable. Carney did not change established venue principles, and should not be read to imply that there has been any change in the established venue principles regarding resident and non-resident joint tortfeasors.
In our case, the two Chatham County doctors were dismissed from the case with prejudice. Venue in Chatham County vanished at the moment the dismissal was filed. The trial court erred in denying appellants' motion to transfer.
Judgment reversed.
BIRDSONG, P.J., and SMITH, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1726809/ | 970 So. 2d 840 (2007)
PIERRE
v.
DIAZ.
No. 3D07-2925.
District Court of Appeal of Florida, Third District.
December 14, 2007.
Decision without published opinion. App. dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1060277/ | 458 S.E.2d 458 (1995)
Marilyn S. SCHULTZ
v.
Gerald A. SCHULTZ, et al.
Record No. 941129.
Supreme Court of Virginia.
June 9, 1995.
McClanahan Ingles (Martin, Ingles & Ingles, on brief), Gloucester, for appellant.
Joseph B. Benedetti (Durrette, Irvin, Lemons & Bradshaw, on brief), Richmond, for appellees.
Present: All the Justices.
*459 HASSELL, Justice.
In this appeal of a decree in a suit to dissolve a corporation, we consider whether a stockholder who has been ordered by a court to take certain action is a necessary party.
Gerald A. Schultz and Marilyn S. Schultz, husband and wife, both certified public accountants, were the sole shareholders, directors, and officers of an accounting firm organized as a Virginia professional corporation, Gerald A. Schultz & Associates, P.C., Inc. Gerald and Marilyn are also litigants in an acrimonious divorce proceeding in the Circuit Court of Middlesex County. The chronology of events in these two suits is important.
The divorce court entered a decree that prohibited Gerald and Marilyn from transferring any assets out of the marital estate. The divorce court appointed a "special master" who determined that the fair market value of Gerald A. Schultz & Associates was $500,000.
Gerald filed this dissolution suit pursuant to Code § 13.1-747 against Gerald A. Schultz & Associates, after the divorce court had entered the decree prohibiting him from transferring assets out of the marital estate. Marilyn was not a named party in this suit. The dissolution court conducted an ore tenus hearing, considered the testimony of several witnesses, including Marilyn, and held that the corporation's board of directors was "deadlocked." The dissolution court dissolved the corporation and appointed a receiver.
Subsequently, Marilyn filed a motion to intervene. She asserted that Gerald sought relief against her personally and that the dissolution suit was filed to circumvent the divorce court's order which had prohibited him from transferring any marital assets. She also requested in her motion that the court reconsider its order dissolving the corporation, and she sought a dismissal of the order of dissolution. The dissolution court did not adjudicate her motion.
Marilyn also filed a motion in the divorce proceeding, requesting that the divorce court hold Gerald in contempt of court for violating that court's order enjoining the transfer of any marital assets. The divorce court informed the dissolution court, by letter, that the value of the corporation was an issue in the divorce proceeding, and that it had enjoined Marilyn and Gerald from transferring any property out of the marital estate. The dissolution court, by letter, assured the divorce court that "no further Orders or proceedings will be conducted" in the dissolution suit until all matters were resolved in the divorce proceeding or with the concurrence of the divorce court.
Subsequently, without notice to Marilyn or the divorce court, the dissolution court entered an "order approving plan of reorganization and dissolution and compelling production of documents and information." Marilyn filed a motion requesting that the dissolution court vacate that order. That court denied the motion, and we awarded Marilyn an appeal.[*]
Marilyn argued in her motion to vacate, and asserts on appeal, that the dissolution court erred by entering an order to dissolve Gerald A. Schultz & Associates because, pursuant to Code § 13.1-747(D), she is a necessary party in a suit to dissolve the corporation. Gerald argues that the dissolution court "properly took no action on Mrs. Schultz's Motion to Intervene and made no error in neglecting to include her as a party defendant." We disagree with Gerald.
Code § 13.1-747 authorizes a circuit court to dissolve a corporation for certain enumerated reasons including, under certain circumstances, a deadlock in the board of directors. Code § 13.1-747(D) states: "It is not necessary to make directors or shareholders parties to a proceeding to be brought under this section unless relief is sought against them individually."
Gerald alleged, in his bill of complaint, that there were only two shareholders in the corporation, that each shareholder owned 50% of the outstanding shares, and that the directors were "deadlocked." Gerald asked that the court "dissolve the defendant corporation... appoint a receiver, and issue such injunctions and orders as may be necessary to preserve corporate assets, and [grant] such further relief as the case may require."
*460 The dissolution court granted the relief that Gerald had requested by entering an order approving the plan of dissolution. That order granted Gerald relief against Marilyn individually in numerous respects. The order directed that Marilyn cooperate with the receiver and provided that she "shall execute such documents, agreements and instruments and produce to the Receiver in a prompt manner all documents and information requested by the Receiver in connection with the Plan [or] implementation of the Plan." The plan also provided for the formation of a new corporation in which Marilyn would be the sole shareholder. The plan imposed numerous obligations upon Marilyn and her court-ordered new corporation, one of which is to require the corporation to indemnify and hold Gerald A. Schultz & Associates harmless from certain claims.
Certainly, under these facts, Marilyn is a necessary party against whom relief was both sought and granted individually in this suit. And, as we have said, "a court cannot render a valid judgment when necessary parties to a proceeding are not before the court." Allen v. Chapman, 242 Va. 94, 99, 406 S.E.2d 186, 188 (1991); McDougle v. McDougle, 214 Va. 636, 637, 203 S.E.2d 131, 133 (1974). Therefore, we hold that the dissolution court erred by failing to grant Marilyn's motion to vacate the dissolution order.
Accordingly, we will reverse the judgment of the dissolution court. We will direct the dissolution court to vacate the order approving the plan of reorganization and dissolution and compelling production of documents and information. We will also direct the dissolution court to enter an order granting Marilyn's motion to intervene. Additionally, as we previously observed, the value of Gerald A. Schultz & Associates is an issue involved in the divorce proceeding in Middlesex County. Therefore, we will direct the dissolution court to stay all proceedings in the dissolution suit until the divorce proceeding is final.
Reversed and remanded.
NOTES
[*] We find no merit in Gerald's contention that Marilyn's appeal is not timely. | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1066983/ | 497 S.E.2d 492 (1998)
27 Va. App. 38
Michael R. HOLDEN
v.
COMMONWEALTH of Virginia.
Record No. 0912-97-4.
Court of Appeals of Virginia, Alexandria.
March 31, 1998.
*493 Kristi A. Middleton, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
John H. McLees, Jr., Assistant Attorney General (Richard Cullen, Attorney General; Kathleen B. Martin, Assistant Attorney General, on brief), for appellee.
Present: WILLIS, BRAY and ANNUNZIATA, JJ.
ANNUNZIATA, Judge.
Michael R. Holden (appellant) appeals the circuit court's order revoking his suspended sentence. Appellant contends the court lacked jurisdiction to revoke his suspended sentence and in doing so violated his right to due process. We disagree and affirm.
On December 29, 1986, appellant was sentenced to ten years imprisonment for aggravated sexual battery on an eleven-year-old boy. The court suspended five years of appellant's sentence "conditioned upon the Defendant's good behavior." After appellant had apparently served time on an unrelated offense, the Commonwealth obtained letters written by appellant while in prison in which he graphically described his desire to have sex with children. The Commonwealth sought to revoke appellant's suspended sentence on the basis that he had violated the condition of "good behavior." Although the letters appear to be part of an ongoing correspondence, the Commonwealth alleged that the writing of the letters, rather than the use of the mails, constituted a violation of the good behavior condition.
At a revocation hearing, appellant admitted writing the letters but contended the court lacked jurisdiction to revoke his suspended sentence because the Commonwealth did not allege or prove that appellant had violated the law. Appellant's prison counselor testified that after she confronted appellant about the letters in group therapy, he admitted he spent many hours watching children's programs on television. She testified that appellant's thoughts of sexual contact with children are related to his behavior and that appellant had shown "very limited" progress in restructuring his thoughts about sexual involvement with children. The court overruled appellant's motion.
I.
Good Behavior Requirement
Pursuant to its authority under Code § 19.2-306, "[t]he court may, for any cause deemed by it sufficient ... revoke the suspension of sentence." This language gives the court "wide discretion in the determination of the sufficiency of the cause for revoking the suspension." Slayton v. Commonwealth, 185 Va. 357, 365, 38 S.E.2d 479, 483 (1946); see also Hamilton v. Commonwealth, 217 Va. 325, 326, 228 S.E.2d 555, 556 (1976) (describing the court's discretion as "quite broad"). "Therefore, the issue on review of a revocation is `simply whether there has been an abuse of discretion.'" Connelly v. Commonwealth, 14 Va.App. 888, 890, 420 *494 S.E.2d 244, 245 (1992) (quoting Marshall v. Commonwealth, 202 Va. 217, 221, 116 S.E.2d 270, 274 (1960)). "[T]he power of the courts to revoke suspensions and probation for breach of conditions must not be restricted beyond the statutory limitations." Grant v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350 (1982) (citing Dyke v. Commonwealth, 193 Va. 478, 484, 69 S.E.2d 483, 487 (1952)).
Appellant's suspended sentence was conditioned solely upon his "good behavior." "[W]hen the accused has complied with conditions specified, he has a right to rely upon them, and the suspension will stand." Griffin v. Cunningham, 205 Va. 349, 354, 136 S.E.2d 840, 844 (1964). Because the suspension of sentence is a means to effect the rehabilitation of offenders, "it is important that those to whom it is granted shall know that its terms and conditions are to be strictly observed." Dyke, 193 Va. at 484, 69 S.E.2d at 487. In order to revoke a suspended sentence for failure to maintain good behavior, the court must have before it evidence that the defendant has not been of good behavior. Hamilton, 217 Va. at 328, 228 S.E.2d at 557.
Appellant argues the court did not have evidence of failure to maintain good behavior because the evidence presented by the Commonwealth did not constitute an unlawful act. We disagree. In the context of appellant's appeal from the revocation of his probation for the same misconduct, this Court recently held, "[g]ood behavior is not limited to an avoidance of criminal activity." Holden v. Commonwealth, 26 Va.App. 403, 409, 494 S.E.2d 892, 895 (1998). We perceive no reason to deviate from that principle in the context of the revocation of appellant's suspended sentence.
This Court has held that iniquitous, but not necessarily illegal, conduct justifies a court's revocation of a suspended sentence. See Bryce v. Commonwealth, 13 Va.App. 589, 591, 414 S.E.2d 417, 418 (1992) (citing United States v. Kendis, 883 F.2d 209 (3d Cir.1989)) (fraud on the court); Cottrell v. Commonwealth, 12 Va.App. 570, 574, 405 S.E.2d 438, 441 (1991) (citing State v. Lintz, 162 Mont. 102, 509 P.2d 13, 15 (1973)) (deceit, untruthfulness, or deception at the time of sentencing). At oral argument, appellant argued that these cases turned on the violation of a specific condition of suspension, rather than a general requirement of good behavior. Appellant's contention is not supported by the cases. In Bryce, 13 Va.App. at 590-91, 414 S.E.2d at 417-18, we held that the defendant's fraud on the court violated the requirement of good behavior. Similarly, in Cottrell, 12 Va.App. at 574, 405 S.E.2d at 440, we held that even if the defendant did not violate a specific provision of suspension by testifying untruthfully, the court could revoke his suspension for "perpetrating a fraud on the court." We explained, more generally, "[d]eceit, untruthfulness and deception at the time of the sentencing are always grounds for revoking a suspended sentence." Id. at 573-74, 405 S.E.2d at 440-41 (citing Lintz, 509 P.2d at 15) (emphasis added).
Appellant contends the decisions of this Court are in conflict with the decisions of the Supreme Court of Virginia, which has noted that, "`[g]ood behavior' has been defined as meaning `conduct conforming to the law.'" Griffin, 205 Va. at 353, 136 S.E.2d at 843. The Supreme Court of Virginia, however, expressed no intent in Griffin to limit its definition of good behavior. Rather, the Supreme Court reversed the court's revocation because there was no "evidence[] that Griffin breached the condition of the suspension order... by failing to be of good behavior or for violation of any law." Id. (emphasis added). By using the disjunctive to explain that the defendant had neither failed to be of good behavior nor violated any law, the Supreme Court recognized that the boundaries of good behavior are not necessarily co-extensive with those imposed by law.
Our interpretation of Griffin is consistent with other Virginia law. In Griffin, the Supreme Court stressed that a court may revoke a suspended sentence "for any cause deemed by it sufficient." Id. at 354, 136 S.E.2d at 844 (citing then Code § 53-275). This principle is currently codified at Code § 19.2-306. Of course, the statutory grant of authority is not without limits. See, e.g., Griffin, 205 Va. at 354, 136 S.E.2d at 844; Dyke, 193 Va. at 484, 69 S.E.2d at 487. The *495 Supreme Court of Virginia has explained the breadth of a court's power to revoke a suspended sentence for violation of a good behavior requirement. Cf. Coleman v. City of Richmond, 5 Va.App. 459, 462, 364 S.E.2d 239, 241 (1988) (citing Gooding v. Wilson, 405 U.S. 518, 520, 92 S. Ct. 1103, 1105, 31 L. Ed. 2d 408 (1972)) (explaining that a state court may limit the application of a statute). In Marshall, 202 Va. at 220-21, 116 S.E.2d at 273-74, the Supreme Court of Virginia wrote that "[i]t seems entirely clear that the failure of a defendant to be of good behavior, amounting to substantial misconduct, during the period of the suspension would provide reasonable cause for revocation of the suspension."[1]
In accordance with the precedents of the Supreme Court of Virginia and this Court, we hold that a court may revoke a defendant's suspended sentence for substantial misconduct not involving violation of law. Marshall, 202 Va. at 220-21, 116 S.E.2d at 273-74. Accordingly, under the circumstances of this case, we also hold that the trial court did not abuse its discretion in revoking appellant's suspended sentence.
II.
Due Process Violation
Appellant contends the phrase "good behavior" does not provide him with constitutionally sufficient notice as to what behaviors may trigger revocation of his suspended sentence.[2] Because the revocation of a suspended sentence results in the loss of liberty, the Due Process Clause governs the revocation. See Lux v. Commonwealth, 24 Va.App. 561, 569 n. 1, 484 S.E.2d 145, 149 n. 1 (1997) (citing Copeland v. Commonwealth, 14 Va. App. 754, 756, 419 S.E.2d 294, 295 (1992)); Atkins v. Commonwealth, 2 Va.App. 329, 331-32, 343 S.E.2d 385, 387 (1986). In general, due process requires that individuals have notice of those acts which may lead to a loss of liberty. See, e.g., Marks v. United States, 430 U.S. 188, 191, 97 S. Ct. 990, 992-93, 51 L. Ed. 2d 260 (1977). "When, as now, a court order is read to proscribe conduct that is not in itself unlawful, the dictates of due process forbid the forfeiture of an actor's liberty by reason of such conduct unless he is given fair warning." United States v. Gallo, 20 F.3d 7, 12 (1st Cir.1994) (citing cases).
Appellant was convicted of aggravated sexual battery on an eleven-year-old boy, and five years of his sentence were suspended on the condition that he exhibit good behavior. The record makes clear that appellant had actual notice that writing letters containing graphic pedophilic material was inconsistent with conduct constituting good behavior. Appellant's letters, graphically describing his desire to sexually abuse children, are closely related to aggravated sexual battery on a child for which he was incarcerated. He also failed to disclose his activities during his prison group therapy sessions, in which the participants were encouraged to discuss their sexual thoughts in a therapeutic setting for therapeutic purposes. Furthermore, when confronted about his letter writing in his prison sex offender group therapy session, he admitted to spending a great deal of time in planning ways to act on his pedophilic obsession, acknowledging implicitly his understanding of the relationship between his letters and the conduct for which he was incarcerated. Indeed, appellant's counselor characterized his letters as part of a "continued and escalating involvement in deviant sexual fantasies." Finally, appellant attempted to hide his letters from prison authorities, an act which is inconsistent with his contention that he lacked knowledge that his letter-writing activities might be viewed as incompatible with the condition of his suspended sentence.
*496 The record thus establishes that appellant knew that indulging in such conduct was inconsistent with the court's condition that he be of good behavior. "[T]he fair warning doctrine does not provide a safe harbor for probationers who choose to ignore the obvious." Gallo, 20 F.3d at 12. We hold, therefore, that appellant had fair warning that his actions were inconsistent with the good behavior condition of his suspended sentence and affirm the trial court's revocation of his suspended sentence.
Affirmed.
NOTES
[1] Appellant does not argue that his conduct does not rise to the level of substantial misconduct.
[2] Appellant also argues that Code § 19.2-306 does not provide constitutionally sufficient notice that writing letters describing his pedophilic desires may trigger a revocation of his suspended sentence and that Code § 19.2-306 is unconstitutionally vague. These claims are procedurally defaulted because defendant did not present them to the trial court. Connelly, 14 Va.App. at 890-91, 420 S.E.2d at 245-46; Cottrell, 12 Va. App. at 574, 405 S.E.2d at 441. Although appellant cited the First and Fourteenth Amendments in his motion to the trial court, he did not argue that Code § 19.2-306 is constitutionally infirm, either facially or as applied. | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260821/ | 124 Cal. Rptr. 2d 683 (2002)
101 Cal. App. 4th 958
The PEOPLE, Plaintiff and Respondent,
v.
Maher MEHAISIN, Defendant and Appellant.
No. C037300.
Court of Appeal, Third District.
September 4, 2002.
Review Denied November 20, 2002.
*684 Michael B. McPartland, under appointment by the Court of Appeal, Petaluma, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, J. Robert Jibson, Supervising Deputy Attorney General, and Janine R. Busch, Deputy Attorney General, for Plaintiff and Respondent.
Certified for Partial Publication[*]
CALLAHAN, J.
Defendant Maher Mehaisin was charged with withholding his six-year-old daughter and his four-year-old son from their lawful custodian, their mother. (Pen.Code, § 278.5; further undesignated statutory references are to the Penal Code.) In the published portion of this opinion, we hold defendant's offer of proof of an affirmative defense of necessity was properly rejected as insufficient. (§ 278.7.) In the unpublished portion of the opinion, we hold that defendant's offer of proof of a nonstatutory justification or excuse for withholding the children was properly rejected.
A jury convicted defendant of abducting his daughter and son. (§ 278.5.) He was sentenced to state prison for three years, eight months.
On appeal, defendant contends the trial court erred by excluding evidence (1) establishing a necessity defense under section 278.7, and (2) explaining why he kept the children from their mother's home. We shall affirm the judgment.
FACTS
In 1992, defendant and Jihan Mehaisin were married in Amman, Jordan, the home of defendant and his parents. Their daughter, Jewmanna, was born in Sacramento *685 in 1993. Their son, Mohammad, was born in Sacramento in 1994. In 1996, the family moved to Mississippi, where defendant operated a boutique clothing store.
In October 1997, Jihan and the children moved back to Sacramento and lived with her sister. In December 1997, defendant filed for divorce in Mississippi. Both parties were present and represented by counsel when a Mississippi court entered an order awarding Jihan temporary custody of the children, granting defendant visitation from January 3, 1998, through January 16, 1998, and scheduling the divorce hearing for January 28, 1998.
In early January 1998, the divorce hearing was continued to March 5, 1998. Defendant was granted additional time for visitation, until February 2, 1998. In accordance with that award, defendant arrived at Jihan's sister's apartment in Sacramento to pick up the children. Defendant told Jihan that he needed the children's passports because they needed identification on the flight. Jihan's sister, who was present, told Jihan not to give him the passports. However, after calling Southwest Airlines and being told that picture identification was required for the children, Jihan gave defendant the passports. At the time, the children were three and five years old.
On February 2, 1998, defendant failed to return the children. Jihan's sister telephoned his parents' residence in Amman, Jordan, to obtain his home telephone number in Mississippi. Unexpectedly, Jewmanna answered the telephone. She cried and told her aunt that she wanted to come home. Defendant snatched the telephone from Jewmanna and got on the line. When questioned, defendant stated he had no intention of bringing the children back to the United States. Jihan made no attempt to visit her children in Jordan, because she feared for her life if she returned there. She testified, "There is no woman [sic ] rights. They can kill me and get away with it."
On March 28, 1998, Jihan placed another call to defendant's parents' residence in Jordan. She asked defendant to return the children, and he refused. She confronted him with the court's custody order, and he told her he "didn't care about the laws here."
Defendant later returned to the United States. In July 1998, he went to New Orleans, Louisiana, where he stayed long enough to obtain citizenship papers. He then went to Chicago, Illinois, where he obtained return tickets to Jordan. In August 1999 he was arrested and extradited to California.
Defendant testified that Jihan was unfaithful to him. He claimed she was a drug user and a drunk.
DISCUSSION
I
Defendant contends the trial court erred by excluding evidence and argument supporting a necessity defense under section 278.7. He claims the exclusion of evidence that he kept the children because he believed they would suffer harm in Jihan's home violated his federal due process rights. We are not persuaded.
Background
Defendant moved in limine to present a necessity defense pursuant to section 278.7. He proffered evidence that (1) Jihan's brother was living at her residence during 1997; (2) he had been arrested for a sexual assault, although the charge was not sustained; and (3) he used controlled substances. Defendant intended to argue that he withheld the children *686 to protect them, because he reasonably believed they would suffer harm in Jihan's home.
The trial court ruled defendant was not entitled to a necessity defense because he did not comply with section 278.7's notice provisions. The court instructed the jury: "As I previously advised you, a defendant accused of a violation of Penal Code Section 278.5 may present a defense that his conduct was necessary because of a belief a child was in danger only if such defendant complies with procedures which require him to notify certain authorities and take action with the courts within a reasonable time after a wrongful taking or withholding of a child. [¶] Because this defendant had not complied with the requirements to notify proper authorities nor to take proper court actions, any claim by him of dangers to a child are not a defense nor relevant to this case ... and you are, again, admonished to disregard any testimony about such alleged danger to the children."
Analysis
Defendant was convicted of violation of section 278.5, which provides in relevant part: "(a) Every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation, shall be punished ...."
A necessity defense to section 278.5 is set forth in section 278.7, which provides in relevant part:
"(a) Section 278.5 does not apply to a person with a right to custody of a child who, with a good faith and reasonable belief that the child, if left with the other person, will suffer immediate bodily injury or emotional harm, takes, entices away, keeps, withholds, or conceals that child.
"(b) Section 278.5 does not apply to a person with a right to custody of a child who has been a victim of domestic violence who, with a good faith and reasonable belief that the child, if left with the other person, will suffer immediate bodily injury or emotional harm, takes, entices away, keeps, withholds, or conceals that child. 'Emotional harm' includes having a parent who has committed domestic violence against the parent who is taking, enticing away, keeping, withholding, or concealing the child.
"(c) The person who takes, entices away, keeps, withholds, or conceals a child shall do all of the following:
"(1) Within a reasonable time from the taking, enticing away, keeping, withholding, or concealing, make a report to the office of the district attorney of the county where the child resided before the action. The report shall include the name of the person, the current address and telephone number of the child and the person, and the reasons the child was taken, enticed away, kept, withheld, or concealed.
"(2) Within a reasonable time from the taking, enticing away, keeping, withholding, or concealing, commence a custody proceeding in a court of competent jurisdiction consistent with the federal Parental Kidnapping Prevention Act ... or the Uniform Child Custody Jurisdiction Act ....
"(3) Inform the district attorney's office of any change of address or telephone number of the person and the child."[1]
Defendant was not entitled to a defense under section 278.7, subdivision (a) or (b), because he was not a person "with a right to custody of a child" within the meaning of those subdivisions.
For purposes of section 278.7, the phrase "right to custody" means the right *687 to physical care, custody, and control or the child pursuant to a custody order. (§ 277, subd. (e).) A custody order may be permanent or temporary. (§ 277, subd. (b).) "Visitation" means time for access to the child allotted to any person by court order. (§ 277, subd. (h).)[2]
Defendant contends that, because he was granted so much time for overnight visitation between January 3, 1998, and February 2, 1998, he Ineffectively had "physical care, custody, and control" of the children during the period and thus had a "right to custody" within the meaning of section 277, subdivision (e).[3] We do not agree.
Courts "look[ ] at the existing de facto arrangement between the parties to decide whether physical custody is truly joint or whether one parent has sole physical custody with visitation rights accorded the other parent." (In re Marriage of Biallas (1998) 65 Cal. App. 4th 755, 759-760, 76 Cal. Rptr. 2d 717.) Joint physical custody exists where "each of the parents ... have significant periods of physical custody." (Fam.Code, § 3004.) Because defendant had the children for several weeks, his period of physical custody must be deemed significant. (Contrast Biallas, supra, at pp. 758, 760, 76 Cal. Rptr. 2d 717 [custody one day per week and alternate weekends constitutes liberal visitation, not joint custody]; In re Marriage of Whealon (1997) 53 Cal. App. 4th 132, 142, 61 Cal. Rptr. 2d 559 [same].) However, with exceptions not relevant here, joint physical custody must be "shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents." (Fam.Code, § 3004.) Thus, where children "shuttle[ ] back and forth between two parents" (In re Marriage of Whealon, supra, at p. 142, 61 Cal. Rptr. 2d 559) so that they spend nearly equal times with each parent, or where the parent with whom the child does not reside sees the child four or five times a week, this amounts to joint physical custody. (In re Marriage of Lasich (2002) 99 Cal. App. 4th 702, 121 Cal. Rptr. 2d 356; Biallas, supra, at p. 760, 76 Cal. Rptr. 2d 717; Brody v. Kroll (1996) 45 Cal. App. 4th 1732, 1735-1736, 53 Cal. Rptr. 2d 280; In re Marriage of Battenburg (1994) 28 Cal. App. 4th 1338, 1342, 33 Cal. Rptr. 2d 871.) Here, however, the Mississippi court's order did not purport to assure frequent or continuing contact with both parents. (Fam.Code, § 3004.) Rather, it gave defendant a single period of exclusive physical contact (unless Jihan traveled to Mississippi) and gave Jihan exclusive custody thereafter. Thus, the de facto arrangement between the parents was sole custody and one period of liberal visitation, not joint physical custody.
In any event, defendant absconded with the children after his period of visitation ended, not during the period. Assuming, for purposes of argument, that defendant had joint physical custody of the children until February 2, 1998, his right to custody *688 ended on that date and section 278.7 provides no defense to his withholding of the children thereafter.[4]
Moreover, the trial court properly held that defendant was not entitled to a section 278.7 defense because he did not report the taking to the Sacramento District Attorney and did not commence a custody proceeding in a court of competent jurisdiction. (§ 278.7, subd. (c).)
Section 278.7 is silent as to whether a person claiming the defense must comply with its reporting provisions, or in other words, whether the reporting provisions are conditions of the statutory defense. However, before the enactment of section 278.7, the common law necessity defense "require[d] the individual committing the crime to report to the proper authorities immediately after attaining a position of safety from the peril." (People v. Beach (1987) 194 Cal. App. 3d 955, 972, 240 Cal. Rptr. 50, citing People v. Lovercamp (1974) 43 Cal. App. 3d 823, 831-832, 118 Cal. Rptr. 110 [report to authorities is a "condition" of the necessity defense].)
Our examination of section 278.7's legislative history reveals no dissatisfaction with, or intent to change, the common law in this respect.[5] Contrary to defendant's argument, the Legislature does not appear to have intended merely to "create a safe haven, so that a parent who complies with [the notice] provisions will not even be charged with child abduction," whereas "a person who does not comply with the notification provisions must prove that he or she acted with a good faith and reasonable belief that the child may suffer harm." The trial court properly construed section 278.7 consistent with its common law antecedent and properly concluded that defendant was not entitled to the statutory defense.
Defendant claims due process entitled him to present evidence of, and have the jury instructed upon, any recognized defense to the charge against him. (E.g., Mathews v. United States (1988) 485 U.S. 58, 63, 66, 99 L. Ed. 2d 54, 61, 63; People v. Burrell-Hart (1987) 192 Cal. App. 3d 593, 596-600, 237 Cal. Rptr. 654.) Our conclusion that his defense was not recognized pursuant to section 278.7 makes further consideration of the due process claim unnecessary.
II[**]
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., and NICHOLSON, J.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976, this opinion is certified for publication with the exception of part II of the Discussion.
[1] Section 278.7 was enacted in 1996. (Stats. 1996, ch. 988, § 9.)
[2] Section 277 provides in relevant part:
"The following definitions apply for the purposes of this chapter: [¶] ... [¶]
"(b) `Court order' or `custody order'" means a custody determination decree, judgment, or order issued by a court of competent jurisdiction, whether permanent or temporary, initial or modified, that affects the custody or visitation of a child, issued in the context of a custody proceeding. An order, once made, shall continue in effect until it expires, is modified, is rescinded, or terminates by operation of law. [¶] ... [¶]
"(e) A `right to custody' means the right to the physical care, custody, and control of a child pursuant to a custody order as defined in subdivision (b). . . . [¶] ... [¶]
"(h) `Visitation' means the time for access to the child allotted to any person by court order."
[3] We obtained supplemental briefing on this issue.
[4] The complaint, deemed an information, alleged defendant withheld the children between February 2, 1998, and May 8, 2000.
[5] The People's motion for judicial notice of section 278.7's legislative history is granted. (Evid.Code, §§ 452, subd. (c), 459, subd. (a).)
[**] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260837/ | 238 P.3d 74 (2010)
Kurshida ISLAM, Appellant,
v.
STATE of Washington, DEPARTMENT OF EARLY LEARNING, Respondent.
No. 63362-7-I.
Court of Appeals of Washington, Division 1.
August 23, 2010.
*76 Jean Marie Schiedler-Brown, Attorney at Law, Seattle, WA, for Appellant.
Diane Lamon Dorsey, Office of the Attorney General, Seattle, WA, for Respondent.
BECKER, J.
¶ 1 The Department of Early Learning revoked appellant Kurshida Islam's child care center license. The department's burden of proof in an adjudicative proceeding, as provided by statute, is the preponderance of the evidence. Islam contends the importance of a licensee's private interest requires proof by clear and convincing evidence as a matter of due process. But in defining the nature of the State's interest, the legislature expressly states that the interests of the children in care are "paramount" over the right of any person to provide care. When due weight is given to the State's interest, the legislative mandate for proof by a preponderance of the evidence reflects a constitutionally permissible allocation of the risk of error. We reject Islam's request to overturn the statute.
¶ 2 The Department of Early Learning was created by the legislature in 2006. Laws of 2006, ch. 265; see chapter 43.215 RCW. The department administers child care and early learning programs and adopts minimum licensing requirements. RCW 43.215.020(2)(d); RCW 43.215.200(2). It is unlawful for any agency to care for children unless the agency is licensed as provided in the chapter. RCW 43.215.250(1).[1] Licensing requirements for child care centers are found in chapter 170-295 WAC. The regulations include minimum requirements for staffing, programming, health and nutrition, care of infants, safety and environment, agency practices, and for the recording, reporting, and posting of information.
¶ 3 Islam held a license to provide child care at a facility located in Seattle until the license was suspended on January 17, 2007. Charlotte Jahn, a licensor for the department, testified at the administrative hearing that she investigated several complaints about the center between 2002 and 2007. Of particular concern were rule violations she documented during a visit to the center in February 2004. A preschool age child answered the door unattended; an infant was sleeping in a car seat; piles of papers, books, and magazines were stacked to the ceiling; an empty glass fish tank sat on an unsecured shelving unit; and an outdoor play area contained piles of broken equipment and a feces-strewn rabbit hutch. Upon returning one week later, Jahn found that some of these problems had not been corrected. Jahn made findings at this time of an unsafe environment, deficient record keeping, and inadequate supervision.
¶ 4 Jahn did not consider the findings documented in the record of her visits prior to 2007 as amounting to cause to revoke the *77 center's license. The decision to revoke was precipitated by Jahn's observations during an unannounced visit to the center on January 8, 2007. According to unchallenged findings of fact, Jahn arrived and found the facility cluttered, with puzzle pieces, soiled tissues, and cereal on the floor. The only staff member present was Islam's niece, Salina Begum, who was caring for five toddlers and an infant. This was a violation of the required staff to child ratio. Salina could not find the first aid supplies when asked and did not know where the children's files were kept. She was unable to tell Jahn the names or ages of some of the children present, although she had worked at the center for a year. She made no attempt to restrain the toddlers from climbing on the table and window sill. It appeared to Jahn that Salina had no plan for the children's activities.
¶ 5 Soon, Islam returned to the center with her sister, Saida Begum. Islam had gone on an errand nearby, leaving Saida and Salina at the center caring for three children. Then Saida, complaining of a sudden headache, left the center and found Islam. Islam learned from Saida that more children had arrived. Realizing that Salina had been left alone with too many children, Islam returned with Saida to the center. Islam had trained both her sister and her niece to call in additional staff when necessary to comply with the staff to child ratio, but neither of them had done so.
¶ 6 After Islam's arrival, Jahn observed more violations. Saida took three toddlers into the toddler room and left them alone without supervision while she went to the kitchen. An uncovered and unlabeled infant bottle was found in the refrigerator. Islam could not produce documentation that Salina had completed first aid training. Jahn found no emergency plan in the file of an asthmatic and allergic boy. Jahn documented findings of inadequate supervision and record keeping and a failure to maintain easily accessible first aid supplies.
¶ 7 Later that day, Jahn returned, and she and Islam signed a compliance agreement. A compliance agreement is a document wherein the licensor identifies areas of the operation that are out of compliance, and the licensee agrees to achieve compliance by a certain date. Islam had signed similar compliance agreements after Jahn documented similar findings during her two visits in February 2004.
¶ 8 On January 12, 2007, another event occurred that focused the department's attention on Islam's child care center, although ultimately it did not serve as a basis for the decision to revoke her license. A seven month old baby was injured at the center while being held in Saida's lap. Saida was sitting on the floor with the baby and several toddlers who were playing and listening to music. One of the toddlers, who was holding a plastic toy in one hand and a metal car toy in another, fell and landed on the baby. Islam checked the baby over but did not call a doctor or the baby's mother. When the mother arrived to pick up the baby, the mother was distraught and called 911. The next day, the mother took the baby to a doctor. The doctor observed facial abrasions and bruising serious enough to warrant the attention of a physician, but nothing that required further treatment or testing.
¶ 9 On January 13, 2007, Jahn learned of the incident with the baby. Child Protective Services had initiated an investigation of an allegation that the baby's injury was the result of negligent treatment, maltreatment, or abuse. It is the department's practice to summarily suspend a provider's license when a child has been injured at a child care facility until an investigation is completed. Jahn notified Islam that the center's license was being summarily suspended effective January 16, 2007. Islam appealed the notice of summary suspension. While that appeal was pending, Islam received notice that the center's license was also being revoked, effective March 9, 2007, for failure to meet minimum licensing requirements. The notice itemized the violations observed by Jahn during her visit on January 8, 2007, as well as earlier complaints that were investigated and found to be valid.
¶ 10 Islam contested both the suspension and revocation decisions. After a three day hearing in June 2007, an administrative law judge concluded that the department had acted prematurely by summarily suspending the license based solely on the fact that an *78 investigation of the baby's injury was pending. Nevertheless, the judge upheld the department's decision to revoke the center's license because of the documented violations of licensing rules. A review judge for the department affirmed the license revocation order and also reinstated the summary suspension. Islam petitioned for judicial review. The superior court affirmed. The decision of the superior court is now before us on appeal.
¶ 11 As the party asserting the invalidity of the final agency order, Islam has the burden of demonstrating invalidity. We apply the standards of the Administrative Procedure Act, chapter 34.05 RCW, directly to the administrative record, sitting in the same position as the superior court. We review legal conclusions de novo to determine whether the review judge correctly applied the law, including whether the factual findings support the legal conclusions. Constitutional challenges are questions of law subject to de novo review. Statutes are presumed constitutional. The party challenging the constitutionality of a statute has a heavy burden to establish that the statute is unconstitutional beyond question. In order to declare a statute unconstitutional, a court must find that the conflict between the statute and the constitution is plain beyond a reasonable doubt. Hardee v. Dep't of Social & Health Servs., Dep't Early Learning, 152 Wash.App. 48, 54-55, 215 P.3d 214 (2009), review granted, 168 Wash.2d 1006, 226 P.3d 781 (2010).
STANDARD OF PROOF
¶ 12 The statute alleged by Islam to be unconstitutional provides that the Department of Early Learning must apply a preponderance of evidence standard of proof in adjudicative proceedings regarding the suspension or revocation of a license:
In any adjudicative proceeding regarding the denial, modification, suspension, or revocation of any license under this chapter, the department's decision shall be upheld if it is supported by a preponderance of the evidence.
RCW 43.215.300(2).
¶ 13 Islam contends the proper standard of proof is clear and convincing evidence. She relies on Nguyen v. Department of Health Medical Quality Assurance Commission, 144 Wash.2d 516, 29 P.3d 689 (2001), cert. denied, 535 U.S. 904, 122 S. Ct. 1203, 152 L. Ed. 2d 141 (2002), and Ongom v. Department of Health, Office of Professional Standards, 159 Wash.2d 132, 148 P.3d 1029 (2006), cert. denied, 550 U.S. 905, 127 S. Ct. 2115, 167 L. Ed. 2d 815 (2007). In those cases, the Washington Supreme Court determined that due process requires the clear and convincing evidence standard of proof for, respectively, revocation of a doctor's medical license and revocation of a registered nursing assistant's license. Islam argues that the license for her child care center deserves no less protection.
¶ 14 We reject this argument for two reasons. First, the licenses in Nguyen and Ongom were professional licenses issued to individuals under the Uniform Disciplinary Act, chapter 18.130 RCW. A child care license, as this court determined in Hardee, is more in the nature of a site license. A child care center license is issued by the Department of Early Learning for a period of three years, and it applies only to the location stated in the application. RCW 43.215.260. It is issued to an "agency," not to an individual. See RCW 43.215.200(4); 43.215.205(3). An "agency" can be "any person, firm, partnership, association, corporation, or facility that provides child care." RCW 43.215.010(1). The director or program supervisor must have a minimum number of college credits and experience. WAC 170-295-1010, 1020. But it is not necessary for the licensee to have any particular level of training or experience.
¶ 15 Second, the preponderance standard used in this case is mandated by statute unlike in Nguyen and Ongom, where the preponderance standard was adopted merely by regulation. Islam must carry a heavy burden to justify declaring a statute unconstitutional. The burden is particularly heavy here because the legislature expressly states that the department's mission to safeguard and promote the health, safety, and well-being of children "is paramount over the *79 right of any person to provide care." RCW 43.215.005(4)(c).
¶ 16 The legislature's declaration identifies the State's interest to be weighed in the balancing test of Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). Mathews sets forth three factors to consider when identifying the specific dictates of due process in a given situation:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews, 424 U.S. at 335, 96 S. Ct. 893.
¶ 17 The standard of proof is a procedural safeguard that serves to "allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision." Addington v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979). In applying Mathews and Addington, the Nguyen court determined that the lower standard of proof increased the risk of erroneous license revocations. The court concluded that the private interest and the governmental interest both weighed in favor of the higher burden of proof because the government shared with the licensee a common interest in "medical disciplinary hearings which reach an accurate and reliable result." Nguyen, 144 Wash.2d at 533, 29 P.3d 689. The court decided that maintaining the availability of physicians was in the public interest:
It makes little sense to contend either the health of the public or its confidence in the medical profession is bolstered by the erroneous de-licensure of qualified physicians. The public is ultimately dependent upon the provision of a physician's services, not their elimination.
Nguyen, 144 Wash.2d at 533, 29 P.3d 689.
¶ 18 Relying on Nguyen, Islam contends the State's interest as well as the licensee's is served by the more exacting standard of proof because an erroneous delicensure means the public will be erroneously deprived of access to and benefit from child care services.
¶ 19 Raising the standard of proof decreases the risk that adequate child care centers will be closed down. But it also increases the risk that inadequate child care centers will be permitted to keep their doors open. It is for the legislature, not the courts, to decide to what degree maintaining the availability of child care centers is in the public interest. We understand RCW 43.215.005(4)(c) as a legislative judgment that the State's interest in protecting children has a higher priority than the State's interest in an ample supply of child care centers.
¶ 20 The legislative declaration also speaks to the State's interest in avoiding increased fiscal and administrative burdens. The Nguyen court saw no increased fiscal burden arising from an increased burden of proof, as there would likely be no change in the cost of holding a hearing. Nguyen, 144 Wash.2d at 532, 29 P.3d 689. But the cost of a hearing is only one part of the department's regulatory operations. Making it harder to revoke the licenses of unqualified care givers could well mean more costly investigations, more hearings, more litigation concerning injured children, and increased monitoring for dubious providers. With respect to these burdens, too, we must give weight to the legislature's choice to set a preponderance of evidence standard for the department's enforcement actions.
¶ 21 Islam would have us override the legislature's judgment based on the first Mathews factor, the importance of her private interest. She contends the private interest affected by revocation is as great as in Nguyen and Ongom because of the potential for ending the licensee's career in child care. An individual who has been "disqualified" by the department may not be present on the premises of a licensed or certified facility. WAC XXX-XX-XXXX(7). As further justification for a higher burden of proof, Islam also contends revocation of a child care center license is a "quasi-criminal" proceeding, a *80 characterization the Supreme Court has applied to medical disciplinary proceedings. Nguyen, 144 Wash.2d at 528-29, 29 P.3d 689, citing In re Kindschi, 52 Wash.2d 8, 10-11, 319 P.2d 824 (1958).
¶ 22 As someone who has had a license revoked for reasons not involving abuse, Islam has not been accused of quasi-criminal wrongdoing. She is in the category of individuals the department "may" disqualify from providing child care. WAC XXX-XX-XXXX(7)(e). If Islam applies for any type of license or certification involving child care in the future, the revocation will have the collateral consequence of subjecting her to a more exacting level of scrutiny than would otherwise be the case. It does not mean she may never again work as a provider of care.
¶ 23 We acknowledge a child care license represents a valuable private interest. But unlike a disciplinary proceeding as described in Kindschi, an enforcement action by the Department of Early Learning does not necessarily focus on the licensee personally. A deficiency in the facility or staff may be the basis of the revocation. WAC 170-295-0100(4). And the decision to revoke a child care center license does not involve an inquiry by members of a learned profession into alleged misconduct by a professional peer, so it does not carry the same stigma or censure as professional discipline. The fundamental concern is the enforcement of statutory requirements established by the State for the operation and suitability of the child care facility. RCW 43.215.300(1). For these reasons, we do not agree that Department of Early Learning enforcement actions are quasi-criminal in nature.
¶ 24 If an individual's private interest were the only factor to be considered in a due process analysis, the preponderance of the evidence standard could never be used. The safety of small children in state licensed care is an important governmental interest, and it is reasonable for the legislature to place it above the economic interests of child care providers. Children may be the only witnesses of unsafe and even abusive activities in a child care center, yet be unable to provide competent testimony at a hearing. Their interests are served by a system that can enforce licensing standards by a preponderance of the evidence.
¶ 25 In summary, Islam did not hold a professional license. She held a limited, site-specific license subject to supervision and unannounced visits. The license was issued with the qualification that her interest in it was subordinate to the State's responsibility for protecting Washington's children. If the standard of proof is raised, children are exposed to a greater risk of receiving inadequate care. That result is unsatisfactory here in light of the legislative policy to the contrary. We follow Hardee in declining to extend Nguyen and Ongom to child care center licensees. Islam has not carried the heavy burden of establishing beyond question that RCW 43.215.300(2) is unconstitutional.
SUMMARY LICENSE SUSPENSION
¶ 26 Islam contends it was unlawful for the department to suspend her license summarily upon learning of the investigation by Child Protective Services into the injury to the baby. The administrative law judge agreed that summary suspension could not occur based on mere allegations rather than proof. The review judge reversed this portion of the initial order. Three issues are presented: (1) Does revoking the license render the summary suspension moot? (2) If not, did the review judge have authority to review the portion of the initial order concerning the summary suspension, when neither party identified it as an issue on review? (3) If so, did the summary suspension violate the department's statutory authority?
¶ 27 As to mootness: an issue is moot if a court can no longer provide effective relief to a party on the issue. In re Pers. Restraint of Mines, 146 Wash.2d 279, 283, 45 P.3d 535 (2002). Any issue concerning the summary suspension is technically moot because even if the suspension could be undone, the revocation of the license would still stand and prevent Islam from operating the center. However, in order to give guidance to the department and licensees, and to prevent future litigation on these issues, we *81 will consider the summary suspension. See Mines, 146 Wash.2d at 285, 45 P.3d 535.
¶ 28 As to the authority of the review judge: Islam contends a review judge may not review any portion of the initial order that is not specifically appealed. She cites two rules governing the procedure for taking an appeal to a review judge from the initial order by the administrative law judge. "If a party disagrees with the reasoning and result of an initial order and wants it changed, the party must request review by the review judge." WAC XXX-XX-XXXX(2). "If no one requests review of the initial order or if a review request is dismissed, the initial order becomes the DEL final decision." WAC XXX-XX-XXXX.
¶ 29 The cited rules do not divide the decisions within an initial order into separate portions that become final if they are not specifically included in the appeal. Under the Administrative Procedure Act, an agency review judge may review and change any portion of an initial order that has been appealed by any party:
The reviewing officer shall exercise all the decision-making power that the reviewing officer would have had to decide and enter the final order had the reviewing officer presided over the hearing, except to the extent that the issues subject to review are limited by a provision of law or by the reviewing officer upon notice to all the parties.
RCW 34.05.464(4).
¶ 30 The department was willing to let the initial order become final because it achieved the department's objective. Islam, however, wanted the result changed, so she appealed the initial order to the review judge. Once the initial order was appealed, the review judge had authority to review and revise the portion dealing with the summary suspension.
¶ 31 As to the merits of the department's decision to suspend the center's license summarily: The department acted under a regulation authorizing summary suspension when "(a) It finds that conditions in the licensed facility constitute an imminent danger to a child or children in care; or (b) The public health, safety, or welfare requires emergency action." WAC XXX-XX-XXXX(1). Islam contends the regulation conflicts with a statute requiring the department to base a license suspension on "proof" of a violation or licensing deficiency:
An agency may be denied a license, or any license issued pursuant to this chapter may be suspended, revoked, modified, or not renewed by the director upon proof (a) that the agency has failed or refused to comply with the provisions of this chapter or the requirements adopted pursuant to this chapter; or (b) that the conditions required for the issuance of a license under this chapter have ceased to exist with respect to such licenses.
RCW 43.215.300(1). In Islam's view, neither the accidental injury of the child nor the fact of a pending investigation amounted to "proof" under this statute.
¶ 32 In an emergency, the department has authority to take immediate action. RCW 43.215.305(2)(a). In a situation that requires immediate action, the requirement of "proof" does not preclude the department from acting upon information that has not yet been tested in a hearing. In this case, the department acted based on reliable information that a seven month old child had been injured. The review judge found it is the department's practice to order a summary license suspension when a child is injured at a child care facility:
The Department decided that the Appellant's license should be summarily suspended, in part because of the young age of the infant who was injured. Infants are particularly vulnerable because they are unable to move out of the way or protect themselves from accidents or injuries. It is the Department's practice to summarily suspend a provider's license when a child has been injured at a child care facility until an investigation is completed and a determination is made regarding the circumstances of the child's injury. The Department reasons that if there was an injury, then something happened, and that this means sufficient evidence exists that there is a possible health and safety risk serious enough to warrant stopping the provision *82 of care until the Department finds out what happened.
¶ 33 The letter advising Islam of the summary suspension stated the suspension was pursuant to WAC 170-295-0100. This regulation identifies numerous circumstances warranting license suspension, including failure to provide adequate supervision to children in care. WAC 170-295-0100(4)(d). Thus, the department's information about the infant's injury and the pending investigation amounted to more than mere allegations of conditions satisfying RCW 43.215.300(1). We conclude the department had adequate "proof" to justify a summary suspension. The review judge did not err in disagreeing with the administrative law judge on this point. The emergency action regulation, WAC XXX-XX-XXXX(1), does not conflict with RCW 43.215.300(1).
SUFFICIENCY OF THE EVIDENCE
¶ 34 The review judge upheld the revocation based on the licensing violations Jahn observed during her visits to the child care center in February 2004 and January 2007. Islam contends the findings concerning these violations were insufficient to support revocation. She argues she corrected the deficiencies observed in 2004 and had agreed on a plan of correction in 2007. She contends the department, by signing the compliance agreement, accepted her plan to correct the itemized violations and could not then revoke her license based on those same violations.
¶ 35 This argument is unsupported by pertinent authority or facts in the record. The compliance agreement the parties signed on January 8, 2007, specified the regulatory violations Jahn observed on that date and set forth Islam's plan to bring the center into compliance. The agreement contemplated a fine of up to $250 per day per item of noncompliance if Islam did not complete the plan of correction by the agreed on date. But the agreement did not limit enforcement action to a fine. By signing it, Islam also adopted this statement: "I understand that the department may also take other licensing action for failure to meet licensing requirements." Because the compliance agreement specifically reserved the department's right to take "other licensing action," the agreement did not require the department to give Islam more time to correct deficiencies.
¶ 36 Relying on a regulation that defines a repeated violation as one that occurs "more than once during a twelve-month time frame," Islam also contends the violations documented in 2004 and 2007 were too far apart in time to justify revocation. However, the regulation in question, WAC 170-296-0020(4), does not apply to child care centers. The regulations that apply to child care centers do not require that violations be repeated before a license can be revoked.
¶ 37 Finally, Islam contends it was arbitrary for the department to revoke her license based on two isolated events over a three year period. But while the review judge relied on observations by Jahn during visits occurring three years apart, on each date Jahn documented numerous violations the department regarded as serious:
The Appellant's acts or failures to act have resulted in the Appellant violating licensing rules regarding maintenance of files and records for children and center staff, maintenance of required supplies, maintenance of a safe environment for the children, adequate supervision and maintenance of staff/child ratios. The Appellant and her staff also lack the good judgment and personal characteristics to provide the children in the Appellant's licensed child care center a healthy, safe and responsive environment. The record supports a conclusion the Appellant's poor judgment extends across a substantial period of time and multiple violations of the licensing rules intended to ensure the health and safety of children in her care. The statute is clear and express that the right of the Appellant to provide child care as a licensee is superseded by the right of children in care outside their homes to be assured of a safe and healthy environment.[[2]]
*83 ¶ 38 The arbitrary and capricious test is a very narrow standard, and the one asserting it "must carry a heavy burden." In re Disciplinary Proceeding Against Brown, 94 Wash.App. 7, 16, 972 P.2d 101, review denied, 138 Wash.2d 1010, 989 P.2d 1136 (1999). In reviewing matters within agency discretion, the court must limit its function to assuring that the agency has exercised its discretion in accordance with law and may not itself undertake to exercise the discretion that the legislature has placed in the agency. RCW 34.05.574(1). A discretionary agency decision will not be set aside absent a clear showing of abuse. Schuh v. Dep't of Ecology, 100 Wash.2d 180, 186, 667 P.2d 64 (1983). On this record, we do not find the department's exercise of its discretion to be unreasonable.
¶ 39 Affirmed.
WE CONCUR: APPELWICK and ELLINGTON, JJ.
NOTES
[1] Parents and guardians and certain kinds of schools and entities are exempted from the definition of "agency." RCW 43.215.010(2).
[2] Initial Order, Conclusion 6, incorporated by reference into the Final Order and Review Decision, Conclusion 2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318361/ | 677 S.E.2d 431 (2009)
GIPSON
v.
The STATE.
No. A09A0544.
Court of Appeals of Georgia.
April 9, 2009.
*432 Novy, James & Vaughan, Eugene Novy, Deborah M. Vaughan, Marietta, for appellant.
W. Kendall Wynne, Jr., Dist. Atty., Melanie M. Bell, Asst. Dist. Atty., for appellee.
MILLER, Chief Judge.
A jury convicted Cedric Eugene Gipson of one count of aggravated child molestation (OCGA § 16-6-4(c)), one count of incest (OCGA § 16-6-22), and one count of cruelty to children first degree (OCGA § 16-5-70). Gipson appeals, contending that the trial court erred in (i) denying his motion for mistrial grounded upon a State witness' comment on his right to remain silent, and (ii) denying his motion for a continuance to obtain out-of-state witnesses and new counsel. Discerning no error, we affirm.
Viewed in the light most favorable to the jury's verdict (Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)), the evidence shows that the victim, Gipson's nine-year-old stepdaughter, testified that he began sexually abusing her while she and her family lived in Decatur and continued to do so after the family moved to Covington where Gipson placed the tip of his penis in her vagina, performed cunnilingus on her, and required her to perform fellatio on him. The victim's mother testified that the victim reported these incidents to her in September 2005; that Gipson denied the victim's claims on being confronted with them; and that approximately one week later, after speaking with her pastor, she notified law enforcement of the victim's allegations.
Other evidence showed that Gipson later asked his wife how they might stop the police investigation into the accusations against him and admitted committing the offenses to her, explaining that "something came over him" and "he wasn't himself." And on the date of his arrest, Gipson text-messaged his wife as he was being transported to jail, asking her if she could "make this go away" and "do they know I've confessed," suggesting that she have the victim recant her accusations and claim that she made the accusations because she was angry with him.
1. Gipson challenges the trial court's denial of his motion for a mistrial, arguing prejudice inuring to his detriment upon the comment of a State's witness indicating that he had exercised his Fifth Amendment right against self-incrimination. "Every comment directed toward a defendant's silence will not be cause for an automatic reversal." Smith v. State, 244 Ga. 814, 815(1), 262 S.E.2d 116 (1979). Reversal is not required in this case.
We review the "denial of a motion for mistrial under an abuse of discretion standard." (Footnote omitted.) Hamilton v. State, 293 Ga.App. 297, 300(3), 666 S.E.2d 630 (2008).
Here, the record shows that the prosecutor asked the State's lead investigator what he had done after interviewing the victim's mother. The witness replied that he then attempted to interview Gipson who chose to "invoke[] his Miranda Rights and did not want to speak without an attorney." At a bench conference out of the presence of the jury, trial counsel moved for a mistrial, which motion the trial court denied. The trial court did so indicating that it would give a curative instruction as a part of its charge to the jury, but later failed to do so. Gipson did not request a charge on the issue. No further comment was made by any of the State's witnesses or the prosecutor as to the complained-of comment. The comment, by its own terms, did not sound in evidence of Gipson's guilt. Nor can it be characterized as calculated to undermine Gipson's defense which was simple denial predicated on the incredibility of the victim.
"To reverse a conviction the evidence of [a] defendant's election to remain silent must point directly at the substance of defendant's *433 defense or otherwise substantially prejudice the defendant in the eyes of the jury." Smith, supra, 244 Ga. at 816(1), 262 S.E.2d 116; see also Felton v. State, 93 Ga. App. 48, 49(1), 90 S.E.2d 607 (1955) (The law regarding the right to mistrial as to the improper comment of witnesses is "governed by analogizing the law embodied in [OCGA §§ 9-10-185; 17-8-75 (pertaining to improper statements of counsel)], and by reference to the fundamental rules of law guaranteeing fair and impartial trials."). The comment as to Gipson's election to remain silent plainly had no direct bearing on his denial defense. That on cross-examination, Gipson admitted the offenses of which he was convicted, there is no question of prejudice before the jury denying him fundamental fairness at trial. It follows that the trial court did not abuse its discretion in denying Gipson's motion for mistrial. Hamilton, supra, 293 Ga.App. at 300(3), 666 S.E.2d 630.
2. Gipson also contends that the trial court erred in denying his motion for a continuance, arguing a need to procure an expert witness and to retain new trial counsel. We disagree.
A motion for continuance is addressed to the sound discretion of the trial court, and this court will not interfere unless it is clearly shown that the court abused its discretion. The trial judge, in the exercise of his discretion to grant or refuse a continuance, has to consider the facts and circumstances of each case to determine what the ends of justice require. Broad discretion must be granted trial courts on matters of continuances.
(Citation and punctuation omitted.) Westmoreland v. State, 281 Ga.App. 497, 498(1), 636 S.E.2d 692 (2006).
Less than five days before jury selection, Gipson sought leave of court to obtain new trial counsel because his trial counsel had failed to timely contact a defense witness located in Texas. At the time of jury selection, Gipson raised the need to obtain a second defense witness in Texas, his mother's gynecologist. The record shows, however that neither witness was willing to testify.
The "[d]enial of continuance may be proper where defendant negligently failed to employ counsel promptly or where it appears that he is using the tactic for delay. [Cit.]" Stephens v. State, 208 Ga.App. 620, 621(1), 431 S.E.2d 422 (1993). A trial court is authorized to conclude that a continuance is sought for delay where, as here, the defendant seeks a continuance for the purpose of obtaining unavailable witnesses. Under the circumstances of this case, the trial court did not abuse its discretion in denying Gipson's motion for a continuance. Westmoreland, supra, 281 Ga.App. at 498(1), 636 S.E.2d 692.
Judgment affirmed.
ANDREWS, P.J., and BARNES, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1317335/ | 199 Or. 559 (1953)
263 P.2d 597
HIXSON
v.
HIXSON
Supreme Court of Oregon.
Argued October 27, 1953.
Modified November 18, 1953.
Lyle R. Wolff, of Baker, argued the cause and filed a brief for appellant.
William L. Jackson argued the cause for respondent. On the brief were Dunn & Jackson, of Baker.
Before LATOURETTE, Chief Justice, WARNER, ROSSMAN, LUSK and TOOZE, Justices.
MODIFIED.
TOOZE, J.
This is an appeal by plaintiff, Celestine Hixson (now Randall), from an order of the circuit court for *560 Baker county, entered April 27, 1953, modifying the final decree of divorce (as modified) respecting the custody of minor children.
Plaintiff and defendant were married at La Grande, Oregon, on March 10, 1936. Three daughters were born as the lawful issue of this marriage; viz., Gwendolyn, born December 6, 1940; Arletha, born April 23, 1943; and Lornalee, born November 1, 1944.
Plaintiff separated from defendant in October, 1945, taking her children with her. On December 23, 1945, plaintiff commenced suit for divorce against defendant, charging him with cruel and inhuman treatment consisting of physical abuse, threats against her life, and mental torture. Defendant defaulted. The case was heard on January 23, 1946, and the charges in plaintiff's complaint were sustained not only by her own testimony, but also by that of a corroborating witness. The trial court entered written findings of fact wherein it found to be true the several allegations of physical abuse, threats by defendant, and mental torture as set forth in the complaint. As a part of its findings of fact, the court also found: "That plaintiff is a woman of good habits and does not drink, smoke, attend shows, dances or parties" and "That plaintiff is a proper person to have the care, custody and control of said children".
On January 24, 1946, a final decree was entered in said suit in favor of plaintiff, awarding her a divorce, and providing as follows relative to the children:
"And it hereby is further ordered, adjudged and decreed that plaintiff be, and she hereby is given the care, custody and control of the three minor children, issue of said marriage between plaintiff and defendant, to wit: Arletha Hixson, born April 23, 1943; Lornalee Hixson, born November 1, 1944 *561 and Gwendolyn Hixson, born December 6, 1940 and defendant may see and have said children with him for short visits at all reasonable times, subject to the further order of this court, provided however, that he shall not take said children or any thereof without the County of Baker, nor shall he at any time remove said children or any thereof from the City of Baker without the consent of the court after due notice to plaintiff, first had and obtained, and provided further, that defendant pay to the clerk of this court on the 15th day of each and every month commencing with the 15th day of February, 1946, the sum of $40.00 for the use and benefit of plaintiff in supporting and maintaining said minor children."
The ink upon the final decre had hardly dried before defendant commenced a course of litigation that has built up a bizarre court record of self-interest, at the sacrifice of the happiness and welfare of minor children. Since the date of the final decree, some 60 to 70 documents, including motions, affidavits, counteraffidavits, and writs of assistance have been filed in this case, all relating to the custody of the children. In each separate instance, defendant instigated the proceedings.
On April 5, 1946, he filed a motion to modify the decree by awarding custody of said children to him. The motion was supported by his affidavit. The chief complaint was that plaintiff would not permit defendant to take the children away from their home, even for short periods of time. An order to show cause was issued and served upon plaintiff, and she appeared by motion and affidavit. She denied the allegations contained in the affidavit of defendant. The record does not show any final disposition of the matter.
On February 16, 1948, defendant filed his second motion to modify the decree (1) either by awarding him *562 absolute custody, or (2) by awarding him custody during the summer months of each year, and also the right to take the children to his home once each month for a week-end period. His affidavit in support of his motion charged plaintiff with lack of cooperation in seeing that he was protected in his rights of visitation as provided in the final decree. Plaintiff appeared on March 16, 1948, by filing a countermotion asking that defendant be deprived of all right of visitation or contact with said children. Plaintiff had remarried in the meantime. In her affidavit, plaintiff charged:
"That defendant has repeatedly interfered with the care and control of said children by insisting upon visiting with them at improper times, taking them with him over long intervals when they should be taking their naps, should be confined to the home on account of colds, illness and the like, and at times when they were engaged in activities such as birthday parties, during their nap period and the like."
The matter came on for hearing on May 11, 1948, and on May 12, 1948, an order was entered modifying the decree as follows:
"It is hereby ORDERED, ADJUDGED and DECREED that plaintiff be, and she hereby is given the care, custody and control of the three minor children of plaintiff and defendant [naming them] from September 1st to the following June 1st of each year, beginning with the year 1948; and that defendant be and he is hereby given the care, custody and control of said three minor children of plaintiff and defendant [naming them] from June 1st to September 1st of each year, beginning with the year 1948; provided, that during the times plaintiff has the care, custody and control of said minor children of plaintiff and defendant hereunder, defendant shall have the right to visit said children of plaintiff and defendant and to have *563 them with him for not to exceed eight hours at a time, and during the day time, once each month; and that during the times defendant has the care, custody and control of said minor children of plaintiff and defendant hereunder, plaintiff shall have the right to visit said children for not to exceed eight hours at a time, and during the day time, once each month; and provided further that none of said children shall be removed from Baker County, Oregon, by either the plaintiff or defendant or any other person or persons without the written consent of this Court."
Pandora's Box was opened by this modification providing for divided custody. This court has always frowned upon decrees which provided for such, because experience has taught that such custody does not usually tend to promote the best interests of the minor child or children. It is only under very exceptional circumstances that divided custody will be approved.
On June 1, 1948, defendant filed a motion for a writ of assistance, to be directed to the sheriff of Baker county, for aid in securing the custody of the children. In his affidavit filed in support of the motion, defendant alleged that when he called at plaintiff's home on June 1 to get the children "plaintiff instructed me that I would have to `come in and get the kids' and failed, neglected and refused to bring them to the front door; that said minor children were crying and hiding * * *." An order was entered on June 1, 1948, directing the issuance of a writ of assistance, and on the same day the writ was issued, directed to the sheriff and commanding him "to go and enter upon and into the premises occupied by the plaintiff, or were ever [sic] said minor children may be, and remove said minor children therefrom, and deliver them, together *564 with their effects, into the possession of the defendant".
Evidently the sheriff was unsuccessful in executing the first writ, because on June 14, 1948, a second writ was issued and placed in his hands for execution. The sheriff executed this writ, took possession of the children over their protests, and delivered them to the defendant.
On January 20, 1949, defendant filed another motion for modification of decree, asking that the custody of the children be taken from the mother and awarded to him. In his affidavit filed with the motion, defendant alleged that when he called for the children on June 1, 1948, he and his mother were not permitted to enter the front yard of plaintiff's home, but "that the children finally showed themselves and were in a hysterical condition". It was then he secured the writ of assistance above mentioned. He further stated that after he had obtained custody (through the sheriff), the children "very shortly reverted to their normal condition, and were no longer hysterical". He then alleged certain difficulties he encountered in taking the children with him on several monthly eight-hour periods, but he did not charge that plaintiff had at any time arbitrarily refused him temporary custody. The gist of his complaint was that plaintiff lent him no active assistance and encouragement in the enforcement of his rights. Plaintiff appeared by filing a countermotion asking that the order for divided custody be vacated. On July 11, 1949, after a hearing, the court modified the decree by awarding plaintiff custody from August 1 to the following June 1, and defendant custody from June 1 to August 1, instead of June 1 to September 1.
*565 On June 7, 1950, defendant filed a motion for another writ of assistance to secure possession of the children. The writ was issued on that day and executed by the sheriff of Baker county, as to Gwendolyn and Arletha, despite the fact that said children did not want to leave their mother and were very nervous and emotionally upset. Lornalee clung to her mother and simply refused to go, and the sheriff did not attempt to use force upon her.
Defendant on October 23, 1951, filed a motion to modify the decree, again asking that custody of the children be awarded to him, and also that plaintiff be adjudged guilty of contempt of court. The motion was supported by defendant's affidavit. An order to show cause was issued and served upon plaintiff. Plaintiff filed a counteraffidavit in which she denied any wilful violation of the orders of the court. Some of the allegations of her affidavit are noteworthy:
"4. On one occasion in December, 1949, I refused him [defendant] permission to take Arletha outside our home because she had a heavy cold and was running a temperature. I did, however, invite him to come to the house and visit the children which he did.
"5. During the winter of 1950 Gale developed rheumatic fever and Dr. Hansen ordered me not to allow Gale to play outdoors. I explained this to Hixson.
"6. Except for the two foregoing occasions, due to illness, I have never on any occasion refused Hixson his right to take the children away from my home once each month for 8-day [sic] periods.
"* * * * *
"8. In the summer of 1950 Hixson had custody of Gwendolyn and Arletha. It is untrue that I denied him custody of Lornalee or any of the children. *566 I was perfectly willing then, as always, that all three children should go with their father. On this occasion Lornalee refused to release her hold around my neck after I had released my arms from around her. * * *.
"9. I have never taught the children to hate their father. On the contrary the children never refer to their father in their conversation and the occasion to discuss him does not arise in our household."
After hearing and on December 27, 1951, the court entered an order dismissing the contempt proceeding, but further modifying the decree respecting custody as follows:
"1. By designating the office of the pastor of the Church of Assembly of God at Baker, Oregon, as the place where the plaintiff shall deliver, and the defendant shall re-deliver, the said children whenever the defendant may, upon written request to the plaintiff, exercise his right
"a. to visit the said children on reasonable occasions
"b. to have the said children visit with him for a period not to exceed 8 hours in the daytime on the 3d Saturday of each month provided that if the defendant is unable to exercise such right in any month he shall have the right to an additional Saturday in the next succeeding month
"c. to have the said children visit with him at his home from June 1st to August 1st in each year
"2. By requiring the plaintiff to notify the defendant in writing prior to the time that he is to exercise his rights of visitation or custody of the said children that said children will be unavailable to him if for legitimate reason such as sickness or prearranged plans which would make it impossible for *567 defendant to exercise his rights as to 1.a above make it impossible for said children to be at the appointed place at the appointed hour.
"3. During the periods from June 1st to August 1st in each year, the defendant shall, upon the written request of the plaintiff, deliver the said children to the pastor of the Church of Assembly of God at Unity, Oregon, or such other person as they may agree upon, to enable the plaintiff to visit the said children on reasonable occasions."
On June 2, 1952, upon motion of defendant, another writ of assistance was issued to enforce the right of defendant to custody of his children. The sheriff attempted to execute the writ, but was unsuccessful in his efforts, as will more particularly appear from a part of his testimony upon the trial of the instant proceeding, as hereafter quoted.
On July 1, 1952, defendant filed a motion, supported by his affidavit, for an order directed to plaintiff to show cause why she should not be held in contempt of court for an alleged wilful violation of the decree of divorce as modified December 27, 1951. On the same day an additional motion was filed asking for a modification of the decree so as to award custody of the children to defendant. Plaintiff appeared in opposition to both motions. On October 24, 1952, plaintiff filed a motion, supported by her affidavit, asking that sole custody be awarded to her, subject to the right of defendant to visit the children at reasonable times. It was upon these several motions that a trial was had resulting in the order adjudging plaintiff guilty of contempt and in an order modifying the decree, from which this appeal was taken.
Fred C. Thom, sheriff of Baker county, testified with reference to his attempt to execute the writ of assistance *568 issued June 2, 1952. We quote briefly from his testimony at the trial as follows:
"Q Will you state to whose home you went?
"A I went to the Randall residence.
"* * * * *
"Q And what did you do when you got to the residence?
"A I knocked on the door, and was invited in.
"Q Did you endeavor to take custody of the children?
"A Not that time.
"Q What did you do then?
"A Well, I talked to the Randall family, and asked for the children asked the children to go with me.
"Q What was the answer?
"A Well, the children refused to go.
"Q And then what did you do?
"A I believe I returned to my office and contacted yourself.
"Q Was Mrs. Randall present at the time you were in the Randall home?
"A Yes.
"Q What happened after you called my office?
"A Well, you came to my office and together we returned to the Randall residence.
"Q And who did you talk to at that time?
"A We talked to Mr. Randall.
"Q What was the result of that conversation, do you remember?
"A Well, Mr. Randall said he would endeavor to persuade these children to go with me the next day, and I agreed to come after them.
"* * * * *
"Q Had you ever taken possession of them at any time prior?
"A I had, I believe, the year before. Two of the girls.
*569 "Q Now the girls said they didn't want to go. Did Mrs. Randall say they couldn't go?
"A No, she never did say they couldn't go.
"Q How did the children act when you said you had come to get them to take them to visit their father during the summer?
"A The smallest one would immediately go into hysterics, and the older ones would become nervous, and then eventually they would be in tears.
"Q What did the small child do besides going into hysterics?
"A She would cling to her mother and refuse to have anything to do with me.
"Q Did Mrs. Randall refuse to let you take them?
"A No.
"Q Was there anything to prevent you from bodily picking up three little girls?
"A No, if I had wanted to carry three scared, screaming children out of the house, probably I could have done it.
"Q That's all." (Italics ours.)
The evidence discloses that the children were examined by Dr. Henry H. Dixon, of Portland. Dr. Dixon is an eminent specialist in the field of psychiatry. It was his expert opinion, based upon the examination, that the mental and physical well-being of these children were definitely and injuriously affected by the insecurity, uncertainty, and tension they suffered as the direct result of divided custody.
From the foregoing recital of the record, it is obvious that these minor children have been used as pawns in the battles between the parents. Under the order for divided custody they have been delivered to one parent and redelivered to the other almost as chattels. This is made more evident by the extraordinary use *570 of numerous writs of assistance, a writ usually employed to obtain possession of property. They have been forced to do what in their hearts they did not wish to do. It requires no stretch of imagination to picture the feelings of these little girls when the sheriff of the county appeared upon the scene with all the force of a writ and the law behind him. These children are of an age where it is manifest that they have minds of their own and cannot be forced to love anyone, not even a parent. Unquestionably they love and are deeply devoted to their mother, as well they should be. It may also be that they are not too young to realize the humiliation and suffering their mother must have undergone by reason of being constantly haled into court. They may have resented that. If so, it is something of defendant's own making. Considering the record as a whole, we are not surprised that these children are mentally and physically ill.
Manifestly, since the divorce decree was entered in 1946, defendant has paid little real regard for the feelings and best interests of his offspring. The enforcement of his "right" to visitation and to custody was evidently more important to him than the effect such action had upon the children. We may justly surmise that his whole course of conduct was intended only as a means of harassing and annoying the plaintiff rather than arising from a sincere regard for the welfare of these girls.
On the other hand, it is apparent from the record that plaintiff herself has not been wholly free from fault. She could have cooperated more than she did in carrying out the orders of the court. However, the record fails to show that plaintiff ever actively or arbitrarily resisted defendant's enforcement of his *571 rights. She simply remained passive. She admits that she never taught her children to love and respect their father, but she did not teach them to hate or disrespect him. Plaintiff simply did not discuss the father with the children.
The type of abuse heaped upon plaintiff during the married life of plaintiff and defendant, as established by proof at the trial in the divorce suit, would justly cause any woman to lose her love and respect for her husband. We know of no rule of law that requires a former wife to actively teach her children to love and respect a man who, through his own cruel and inhuman acts, has forfeited his right to respect. On the other hand, the law condemns affirmative acts and words of one parent in disparagement and disrespect of the other in the presence or hearing of the children, no matter how unworthy such other parent may be.
1. The minor children involved in this litigation are the unfortunate victims of a broken home. They are helpless to protect themselves. The court owes them the duty of taking such action as will best serve their interests and welfare. A consideration of parental rights or feelings is secondary in importance.
Of course, minor children are entitled to the love and companionship of both parents, insofar as that is compatible with their welfare. The difficulties between their parents, culminating in divorce, should not deprive them of this any more than is absolutely necessary to their best interests. Raw v. Raw, 195 Or 373, 276, 245 P2d 431. But if it is to the children's best interests that the companionship of one parent be denied them wholly or in part, that is the course which must be pursued.
*572 2. The trial court entered a decree modifying the latest modification by limiting defendant's right of custody to one month each year, from July 1 to August 1, but continuing the other provisions thereof.
Regardless of where the blame may lie for the present situation, we face an actual condition and not a theory. At no time has plaintiff been charged with being morally unfit to have the custody of these three girls. The only charges ever made against her was failure to force the children to go with defendant or doing something to prevent defendant from a full exercise of his rights as provided in the decree. We are solely concerned with the welfare of these children, whose lives to date have been rendered miserable by the endless litigation between the parents. That litigation, largely the result of divided custody, must be brought to an end. Plaintiff has had the custody of these children from the time of their respective births, except as interrupted from time to time as herein outlined. She has provided them with a good home, excellent care, and Christian training, and has showered upon them a mother's love and affection. Her present husband treats them as he would his own children and would adopt them were it permitted. These young girls need their mother. Goldson v. Goldson, 192 Or 611, 626, 236 P2d 314.
The order of modification of decree from which this appeal was taken, together with the order modifying decree under date of December 27, 1951, and the whole thereof as they relate to the custody and maintenance of the minor children of plaintiff and defendant, shall be and they hereby are vacated, set aside, and held for naught insofar as the custody and maintenance of said minor children are concerned, and *573 there shall be and there hereby is substituted in lieu thereof and as a modification of the final decree respecting the custody and maintenance of the minor children the following:
"It is further ordered, adjudged, and decreed by the court that the future care, custody, control, and maintenance of the minor children of plaintiff and defendant; viz., Gwendolyn Hixson, Arletha Hixson, and Lornalee Hixon, shall be and the same hereby are awarded to plaintiff, subject to the right of defendant to visit said children in their home at reasonable times.
"It is further ordered, adjudged and decreed that defendant be and he hereby is ordered and directed to pay to the clerk of the court for the use and benefit of plaintiff in the maintenance of said minor children, the sum of $60.00 per month, until further order of the court."
All other provisions of the final decree of divorce, as well as all provisions of the several modifications of decree other than those relating to the custody and maintenance of the minor children, shall remain unaffected by this modification. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318369/ | 677 S.E.2d 505 (2009)
CITY OF GREENSBORO, Plaintiff,
v.
Kevin B. MORSE, Defendant.
No. COA08-547.
Court of Appeals of North Carolina.
June 16, 2009.
City of Greensboro City Attorney's Office, by Anargiros N. Kontos, for plaintiff-appellant.
North Carolina League of Municipalities, by North Carolina League of Municipalities General Counsel Andrew L. Romanet, Jr. and Senior Assistant General Counsel Gregory F. Schwitzgebel, III, Amicus Curiae.
No brief, for defendant-appellee.
JACKSON, Judge.
The City of Greensboro ("plaintiff") appeals the trial court's order granting a motion by Kevin B. Morse ("defendant") to dismiss plaintiff's complaint. We reverse the trial court's order and remand the matter for the reasons set forth below.
Between March 2004 and February 2007, plaintiff issued to defendant eighty citations for parking violations of plaintiff's municipal ordinances. Defendant did not pay the associated penalties assessed, and on 16 February 2007, plaintiff commenced this action in small claims court to recover from defendant a sum of $2,345.00 in unpaid parking ticket *506 and penalty assessments.[1] On 14 March 2007, a magistrate entered an order in plaintiff's favor for $2,335.00. Defendant timely appealed, and the case was scheduled for mandatory arbitration. On 16 May 2007, the arbitrator awarded $390.00 to plaintiff. On 1 June 2007, plaintiff sought a trial de novo. On 18 July 2007, defendant filed a motion to dismiss plaintiff's complaint pursuant to North Carolina Rules of Civil Procedure, Rule 12(b)(6). On 24 January 2008, the trial court entered an order granting defendant's motion to dismiss after concluding that plaintiff's complaint was barred by the one-year statute of limitations set forth in North Carolina General Statutes, section 1-54(2). Plaintiff appeals.
We review the trial court's decision to dismiss plaintiff's claim de novo. Jones v. Coward, ___ N.C.App. ___, ___, 666 S.E.2d 877, 879 (2008) (citing S.N.R. Mgmt. Corp. v. Danube Partners 141, LLC, 189 N.C.App. 601, ___, 659 S.E.2d 442, 447 (2008)). We inquire
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. In ruling upon such a motion, the complaint is to be liberally construed, and the trial court should not dismiss the complaint unless it appears beyond doubt that [the] plaintiff could prove no set of facts in support of his claim which would entitle him to relief.
Id. (quoting Meyer v. Walls, 347 N.C. 97, 111-12, 489 S.E.2d 880, 888 (1997)).
Plaintiff argues that the trial court erred by concluding that the one year statute of limitation period set forth in North Carolina General Statutes, section 1-54(2) barred plaintiff's recovery. We agree.
Section 1-54(2) sets forth one of several statutes of limitation contained within our General Statutes. It requires the commencement within one year of an action "[u]pon a statute, for a penalty or forfeiture, where the action is given to the State alone, or in whole or in part to the party aggrieved, or to a common informer, except where the statute imposing it prescribes a different limitation." N.C. Gen.Stat. § 1-54(2) (2007). We previously have held that "[North Carolina General Statutes, section] 1-54(2) applies only to actions based on statutes which expressly provide for a penalty or forfeiture, the purpose of which is punitive." Miller v. C.W. Myers Trading Post, 85 N.C.App. 362, 368, 355 S.E.2d 189, 193 (1987) (original emphasis omitted) (citing Holley v. Coggin Pontiac, Inc., 43 N.C.App. 229, 259 S.E.2d 1, disc. rev. denied, 298 N.C. 806, 261 S.E.2d 919 (1979)). Here, the penalty at issue is civil in nature.
North Carolina General Statutes, section 160A-175 grants municipalities the "power to impose fines and penalties for violation of its ordinances." N.C. Gen.Stat. § 160A-175(a) (2007). Furthermore,
[a]n ordinance may provide that violation shall subject the offender to a civil penalty to be recovered by the city in a civil action in the nature of debt if the offender does not pay the penalty within a prescribed period of time after he has been cited for violation of the ordinance.
N.C. Gen.Stat. § 160A-175(c) (2007).
Plaintiff has enacted Greensboro, North Carolina Code of Ordinances, section 16-71 which provides civil penalties for violations of various municipal parking regulations. See Greensboro, N.C., Code of Ordinances § 16-71. Subsection (a) details the penalty amounts and types of violations. Id. Subsection (b) provides that "[t]he city tax collector may accept payments in full and final settlement of the claim or claims, rights or rights of action which the city may have to enforce such penalties, by civil action in the nature of debt." Id.
In the case sub judice, the record demonstrates that the penalties assessed against defendant were pursuant to a municipal ordinance rather than a statute. Therefore, we hold that the trial court erred by dismissing plaintiff's complaint pursuant to the statute of limitations set forth in North Carolina General Statutes, section 1-54(2) because *507 section 1-54(2) applies only to an action for a penalty or forfeiture. See N.C. Gen.Stat. § 1-54(2) (2007); Miller, 85 N.C.App. at 368, 355 S.E.2d at 193.
Plaintiff further contends that the common law doctrine of nullum tempus occurrit regi applies such that no statute of limitations bars actions pursuant to governmental functions. We agree.
Our Supreme Court has explained that nullum tempus occurrit regi"time does not run against the king""developed at common law under the reasoning that the king, who was preoccupied with weighty affairs, `should [not] suffer by negligence of his officers' in failing to pursue legal claims." Rowan County Bd. of Education v. U.S. Gypsum Co., 332 N.C. 1, 6, 418 S.E.2d 648, 652 (1992) (quoting Armstrong v. Dalton, 15 N.C. (4 Dev.) 568, 569 (1834)). Although the doctrine "`appears to be a vestigial survival of the prerogative of the Crown,' the source of its continuing vitality `is to be found in the great public policy of preserving the public rights, revenues, and property from injury and loss, by the negligence of public officers.'" Id. (quoting Guaranty Trust Co. v. United States, 304 U.S. 126, 132, 58 S. Ct. 785, 82 L. Ed. 1224, 1227-28 (1938)). The Court instructed that "nullum tempus survives in North Carolina and applies to exempt the State and its political subdivisions from the running of time limitations unless the pertinent statute expressly includes the State." Rowan County Bd. of Education, 332 N.C. at 8, 418 S.E.2d at 653. However,
[n]ullum tempus does not ... apply in every case in which the State is a party. If the function at issue is governmental, time limitations do not run against the State or its subdivisions unless the statute at issue expressly includes the State. If the function is proprietary, time limitations do run against the State and its subdivisions unless the statute at issue expressly excludes the State.
Rowan County Bd. of Education, 332 N.C. at 9, 418 S.E.2d at 654.
We previously have held that, like taxes, "the collection of parking fines and late fees, imposed for parking violations, is a governmental function. This is so because the collection of these fines and fees is necessary to enforce the parking regulations." Wall v. City of Raleigh, 121 N.C.App. 351, 354, 465 S.E.2d 551, 553 (1996). Therefore, we hold that the collection of fines and fees to enforce plaintiff's parking regulations also is a governmental function within the meaning of the doctrine of nullum tempus. See Rowan County Bd. of Education, 332 N.C. at 8-9, 418 S.E.2d at 653-54; Wall, 121 N.C.App. at 354, 465 S.E.2d at 553.
Accordingly, we reverse the trial court's order granting defendant's motion to dismiss plaintiff's complaint as being time-barred pursuant to North Carolina General Statutes, section 1-54(2), and we remand the matter to the trial court.
Reversed and remanded.
Chief Judge MARTIN and Judge McGEE concur.
NOTES
[1] Plaintiff concedes that defendant paid $10.00 after this action commenced, and that the balance of defendant's unpaid parking tickets is now $2,335.00. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318391/ | STATE OF NORTH CAROLINA
v.
LISA CAROL BURNS, Defendant.
No. COA08-1181
Court of Appeals of North Carolina.
Filed June 2, 2009
This case not for publication
Attorney General Roy Cooper, by Assistant Attorney General Jess D. Mekeel, for the State.
William B. Gibson for defendant.
ELMORE, Judge.
Lisa Carol Burns (defendant) appeals from a 10 August 2007 order reversing a pretrial order by the district court that dismissed defendant's impaired driving charge and remanding defendant's case to the district court to reinstate the charge of driving while impaired. Defendant argues that the trial court erred because her statutory and constitutional rights to an attorney, pursuant to N.C. Gen. Stat. § 20-16.2 and the North Carolina Constitution, were flagrantly violated and resulted in irreparable prejudice to defendant's case. We disagree.
On 6 April 2006, at approximately 1:45 a.m., police officer Terry Jackson observed defendant pull out of a parking lot located off Capital Boulevard in Raleigh. Officer Jackson witnessed the defendant's vehicle spin its tires rapidly as it pulled out of the parking lot. Officer Jackson followed the car and saw the vehicle accelerate rapidly and weave in and out of its lane of traffic. He estimated that the vehicle reached approximately sixty-five miles per hour in a forty-five miles per hour zone. After observing the car for approximately three-quarters of a mile and watching the vehicle use almost all four lanes on the road, Officer Jackson pulled over defendant's car.
Officer Jackson approached defendant's car while she was inside the vehicle and asked for her license and registration. He observed that defendant had a strong odor of alcohol about her, that her eyes were bloodshot, and that her speech was slurred. Officer W.M. Brinkly joined Officer Jackson. Officer Brinkly reported that defendant's eyes were glassy. After making his initial observations, Officer Jackson asked defendant to perform a field sobriety test, but she declined to do so. Officer Jackson then placed defendant under arrest, handcuffing her.
Defendant had a pocketbook and a planner at the time of her arrest. Officer Jackson took control of these items as he placed defendant in the car. Officer Jackson drove to the Public Safety Center and took defendant to the room used for conducting chemical analysis of the breath (Intoxilyzer). Once inside this room, he placed defendant's pocketbook and planner on a nearby table, where defendant could not access them. Officer Jackson read defendant her rights at 2:04 a.m. After receiving her rights, defendant asked several times about her cell phone, which was located in her pocketbook. There is evidence that defendant told the arresting officers that she had her attorney's cell phone number in her cell phone and that she had his business card in her planner. After she asked to speak with her attorney, the officers used a telephone book to look up the attorney's office number. Throughout the course of these events, defendant remained handcuffed.
At 2:08 a.m., an officer placed a call to defendant's attorney's office and left a message on the answering machine; defendant informed the officer that her attorney would not be at the office at this time of day. At 2:37 a.m., after the required 30-minute waiting period, defendant submitted to a chemical breath analysis test. No witness arrived on defendant's behalf to observe the procedures. Defendant was released from custody at 3:27 a.m.
On 9 October 2006, defendant filed a motion to dismiss the charge under N.C. Gen. Stat. § 15A-954(a)(4). The district court granted the motion and dismissed defendant's charge by order entered 15 May 2007 nunc pro tunc 30 March 2007. The district court concluded that defendant's constitutional and statutory rights to call her attorney, pursuant to N.C. Constitution, Art. I, Section 23, and N.C. Gen. Stat. § 20-16.2, had been flagrantly violated, causing irreparable injury to defendant's preparation of her case.
The State appealed to the superior court, which conducted a de novo hearing and issued an order reversing the district court's dismissal and remanding the case for trial. The superior court found that the State had failed to comply with the statutory requirements of N.C. Gen. Stat. § 20-16.2, but found no violations of defendant's constitutional rights. The superior court held that the Intoxilizer test results produced on 6 April 2006 were inadmissible at trial because of the statutory violation, but that it was error for the district court to dismiss the charges because there was no constitutional violation of defendant's rights that might authorize dismissal under N.C. Gen. Stat. § 15A-954(a)(4).
On 25 April 2008, defendant was convicted by a jury and sentenced to an active sentence of nine months. Defendant now appeals from the superior court's 10 August 2007 order on the ground that the court erred by denying her motion to dismiss the charges because the officers violated her constitutional right to call her attorney, which warrants dismissal under N.C. Gen. Stat. § 15A-954(a)(4).
This appeal presents issues of statutory and constitutional interpretation, which are questions of law. Thus, we review them de novo. Armstrong v. N.C. State. Bd. of Dental Examiners, 129 N.C. App. 153, 156, 499 S.E.2d 462, 466 (1998).
Defendant argues that the violation of N.C. Gen. Stat. § 20-16.2 warrants the dismissal of her charge pursuant to N.C. Gen. Stat. § 15A-954(a)(4) because her constitutional right to counsel was violated. N.C. Gen. Stat. § 20-16.2 provides, in pertinent part:
Any person who drives a vehicle on a highway or public vehicular area thereby gives consent to a chemical analysis if charged with an implied-consent offense. Any law enforcement officer who has reasonable grounds to believe that the person charged has committed the implied-consent offense may obtain a chemical analysis of the person.
Before any type of chemical analysis is administered the person charged shall be taken before a chemical analyst authorized to administer a test of a person's breath or a law enforcement officer who is authorized to administer chemical analysis of the breath, who shall inform the person orally and also give the person a notice in writing that:
* * *
(6) You may call an attorney for advice and select a witness to view the testing procedures remaining after the witness arrives, but the testing may not be delayed for these purposes longer than 30 minutes from the time you are notified of these rights. You must take the test at the end of 30 minutes even if you have not contacted an attorney or your witness has not arrived.
N.C. Gen. Stat. § 20-16.2 (2007). Although this statute provides motorists with the right to contact an attorney, "there is no constitutional right to have an attorney present prior to submitting to chemical analysis[.]" State v. Howren, 312 N.C. 454, 457, 323 S.E.2d 335, 337 (1984). There is also "no constitutional right to refuse to submit to chemical analysis." Id. at 456, 323 S.E.2d at 337 (citation omitted). Thus, defendant had no constitutional right to counsel before taking the Intoxilyzer test. Accordingly, the superior court properly denied defendant's motion to dismiss the charges because the officers did not violate defendant's constitutional right to counsel by denying access to her cell phone.
We affirm the order of the superior court.
Affirmed.
Judges BRYANT and STEELMAN concur.
Report per Rule 30(e). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318393/ | 677 S.E.2d 361 (2009)
The COCA-COLA COMPANY et al.
v.
PARKER.
No. A08A1748.
Court of Appeals of Georgia.
March 26, 2009.
Reconsideration Denied April 14, 2009.
*362 Swift, Currie, McGhee & Hiers, Molly J. Prodgers, Christopher R. Reeves, Atlanta, for appellants.
Maurice J. Bernard III, Atlanta, for appellee.
SMITH, Presiding Judge.
Fannie Parker sued her former employer, The Coca-Cola Company ("Coca-Cola"), and her former supervisor, John Ewing, for intentional infliction of emotional distress. The defendants moved for summary judgment on several grounds. The trial court denied the motion, but issued a certificate of immediate review, and we granted the defendants' application for interlocutory appeal. Because Parker's claim was barred by the exclusive remedy doctrine of Georgia's Workers' Compensation Act, we reverse.
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. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).
Webster v. Dodson, 240 Ga.App. 4, 5, 522 S.E.2d 487 (1999).
Viewed in the light most favorable to Parker, the evidence reveals that in 1994, Parker began working for Coca-Cola as a utility operator and was responsible for monitoring the machines that poured syrup into bags. In July 1997, Parker injured her back, neck and knee when she was hit by a pallet of cardboard that was being moved by a forklift.[1] Parker's physician restricted her from prolonged standing and lifting over her head.
In March 1998, Ewing became Parker's supervisor. At sometime thereafter, Parker reported her restrictions to Ewing. Parker claimed that she visited her physician again on July 28, 2008, because she had pain in her arm, shoulders, back and neck, and that her physician restricted her from bending or lifting anything heavier than 20 pounds. She claimed that the pain she suffered was caused when Ewing "asked [her] to go back there and pick up some boxes and put them on the machine, which they weighed more than I did at that particular time." She stated that she suffered pain when Ewing asked her to lift material that weighed 70 to 80 pounds. Parker reminded Ewing of her restrictions, but Ewing told her to continue working, and even asked Parker to move leaking bags of syrup that weighed 50-60 pounds.
In October 1998, Parker moved four-foot-long bins that exceeded her medical restrictions. She stated that after doing so, she experienced pain in her shoulder, arms, and back, and also experienced depression and anxiety. Parker deposed that Ewing often belittled her. She stated that she cried when Ewing told her that the "only thing [she] was good enough to do is clean the floors." Ewing also told Parker she would have to do what she was asked or "find another job," and that the "only thing [she] was good for is to clean the filters and the floors or clean up behind the other employees." She explained that she suffered from anxiety when Ewing asked her to do things that were beyond her medical restrictions. In October 1998, Parker was admitted to the hospital for "stress *363 on the job" and pain in her shoulders and arms.[2] She testified that in the fall of 1998, her duties changed and she was assigned to clean the building. In July 1999, Parker left work on disability. She subsequently left Coca-Cola's employ on October 15, 1999.
1. On appeal, Coca-Cola contends that Parker's claim for intentional infliction of emotional distress is barred by the exclusive remedy doctrine of the Georgia Workers' Compensation Act. We agree. OCGA § 34-9-11(a) provides that "[t]he rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee ... at common law or otherwise, on account of such injury, loss of service, or death...." And "where an employee suffers a physical injury in the course of employment[,] ... a related claim for mental damages will be barred by the [Workers' Compensation] Act's exclusive remedy provision." Lewis v. Northside Hosp., 267 Ga.App. 288, 290(1), 599 S.E.2d 267 (2004) (plaintiff's claim barred where mental injury stemmed from shoving incident with co-worker).
Here, Parker deposed that she suffered a physical injury in the course of her employment when she was hit by a pallet of cardboard and that as a result she was put on certain physical restrictions. Following this physical injury, Parker suffered a psychic injury, also in the course of her employment and related to her physical injury, when Ewing requested that she perform duties that exceeded those restrictions. Under these facts, Parker's "claim for mental damages [is] ancillary to a physical occurrence arising in the course of employment." Lewis, supra, 267 Ga.App. at 292(1), 599 S.E.2d 267; see, e.g., DeKalb County Bd. of Ed. v. Singleton, 294 Ga.App. 96, 99-100, 668 S.E.2d 767 (2008) (psychological injury compensable only if it arises naturally and unavoidably from discernible physical occurrence). Parker's tort claim is therefore barred by the exclusivity provision of the Workers' Compensation Act, and the trial court erred in denying the defendants' motion for summary judgment on this ground. See Lewis, supra, 267 Ga.App. at 292(1), 599 S.E.2d 267.
2. The appellants' remaining enumerations are rendered moot by our holding in Division 1.
Judgment reversed.
MIKELL and ADAMS, JJ., concur.
NOTES
[1] In her brief, Parker claims that she received her injuries in an automobile accident several years earlier and makes no reference to the work-related injury. But in her deposition, Parker mentions that she injured her shoulder in an automobile accident, but clearly states that she was also injured when she was hit by the pallet at Coca-Cola and that she received medical care for that injury.
[2] It is not clear whether Parker received workers' compensation benefits for either her mental injury or her earlier physical injury. The appellants contend that Parker received workers' compensation benefits for both injuries, but cite only to evidence of Parker's short-term disability and medical leave. Parker claims in her brief that she only received short-term disability benefits under an insurance plan she purchased through Coca-Cola. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318396/ | 677 S.E.2d 68 (2009)
BROOKS
v.
The STATE.
No. S08G1898.
Supreme Court of Georgia.
April 28, 2009.
Reconsideration Denied June 1, 2009.
John A. Nuckolls, Sr., John A. Nuckolls, Jr., Atlanta, for appellant.
Garry T. Moss, Dist. Atty., Lawton W. Scott, Sara A. Thompson, Asst. Dist. Attys., for appellee.
THOMPSON, Justice.
We granted certiorari to the Court of Appeals in Brooks v. State, 292 Ga.App. 445, 664 S.E.2d 827 (2008), to consider whether reasonable grounds were required to justify a search and seizure of probationer Jerry Matthew Brooks' person and/or property despite the existence of a validly imposed special condition of probation that prospectively waived Brooks' Fourth Amendment rights. Upon further scrutiny of the record, however, we conclude that this is not the appropriate case to address that issue because this case turns on the validity of a consent to search. We thus leave for another day the question of whether a probation search must be supported by reasonable grounds despite a Fourth Amendment waiver.
During a period of time that Brooks was serving the probated portion of a sentence for a prior felony drug conviction, officers assigned to the Cherokee County Multi-Agency Narcotics Squad (CMANS) were informed by the Cherokee County Sheriff's Department about complaints that Brooks had lodged accusing CMANS agents of conducting annoying surveillance of his property and interfering with his privacy. In addition, CMANS officers received two anonymous tips that Brooks was in possession of methamphetamine. *69 The officers inquired into the terms of Brooks' probation agreement and learned that certain special conditions had been imposed. In pertinent part, Brooks was prohibited from consuming alcohol or controlled substances; he was required to produce urine and/or blood specimens to be tested for the presence of such prohibited substances upon request of law enforcement officers; and he was subject to a search of his home and/or person with or without a warrant whenever requested to do so by law enforcement officers. Based on the foregoing information, several officers went to Brooks' residence to conduct a probation search. The officers identified themselves and stated that they were there to conduct a probation search in accordance with Brooks' probation agreement. Brooks replied, "okay," and voiced no objection to the search. The officers found nothing of interest in the house and asked if they could have a key to a padlocked barn on the property. Brooks replied that he did not have the key but he offered to crawl inside through a hole underneath the building and let the officers in. An officer replied that he could not allow Brooks to do that because there could be a gun in there; Brooks replied, "well, there is a gun in there." The officer then informed Brooks that it was necessary to break the lock, to which Brooks replied, "go ahead." The officers did so and entered the barn. After looking around, they informed Brooks that they could not find a gun in the barn. Brooks replied, "that's right, I forgot, I shot a few rounds out of it the other night." He directed the officers to a piece of PVC pipe behind the barn where he had concealed the gun. The officers retrieved a twelve-gauge shotgun from that location, and then asked Brooks for a urine sample. Brooks willingly provided the officers with the sample, stating that it "would be hot for methamphetamine." Brooks was advised of his Miranda rights and he invoked his right to counsel.
After the state crime lab determined the presence of methamphetamine in Brooks' urine, an indictment was returned charging him with possession of methamphetamine and possession of a firearm by a convicted felon. A pretrial motion to suppress was denied. A bench trial was held in which Brooks conceded that he possessed both methamphetamine and the weapon. He also stipulated that during the search of his home he informed the officers of the location of the shotgun and acknowledged having used it a few days earlier. Brooks was found guilty as charged, and the Court of Appeals affirmed. Brooks, supra.
In Fox v. State, 272 Ga. 163(2), 527 S.E.2d 847 (2000), this Court determined that a special condition of probation pursuant to which a defendant waived his Fourth Amendment rights was invalid because it was not properly obtained as part of the plea bargaining process. The Court went on to consider whether reasonable grounds existed to justify the search despite an invalidly imposed condition of probation. In analyzing the issue, we acknowledged that "when a probationer has not consented to a search, a warrantless search of probationer's home must be based upon reasonable grounds to believe that the probationer has contraband in the home or is engaged in some criminal activity there." (Emphasis supplied.) Id. at 166(2), 527 S.E.2d 847. We thus address whether Brooks validly gave consent to the search and seizure which led to his indictment and conviction.
It is well settled that a valid consent to a search eliminates the need for either probable cause or a search warrant. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); Meschino v. State, 259 Ga. 611(4), 385 S.E.2d 281 (1989). "In order to justify a warrantless search on the grounds of consent, the State has the burden of proving that the consent was freely and voluntarily given under the totality of the circumstances." Raulerson v. State, 268 Ga. 623, 625(2)(a), 491 S.E.2d 791 (1997). "[I]t is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced." Schneckloth, supra 412 U.S. at 233, 93 S. Ct. 2041. See Dean v. State, 250 Ga. 77(2)(a), 295 S.E.2d 306 (1982) (setting forth factors to be considered in assessing the totality of the circumstances). Here, there is no allegation that entry by the officers onto Brooks' property was unauthorized. In fact, Brooks himself *70 complained to law enforcement authorities alleging improper surveillance of his property and thus invited the officers to investigate further. In addition, the officers had received two telephone tips claiming that Brooks was involved with methamphetamine. If proven true, such conduct would have violated the special condition of probation which prohibited Brooks from consuming controlled substances.[1] Nor is there any evidence of coercive police tactics. The uncontroverted testimony of the officer who conducted the search showed that Brooks was cooperative, even friendly toward him, and offered to assist him in locating the gun.[2] There is no allegation that Brooks' age or level of intelligence rendered his consent involuntary. Nor do we accept Brooks' assertion that he merely acquiesced to a claim of lawful authority in allowing the search as such is clearly belied by the evidence of his cooperation and participation. There was no showing that the officers misrepresented their authority to enter and search against Brooks' will, if necessary. Compare Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968) (coercion found where officers announced that they had a warrant and then attempted to justify the search solely on the basis of consent); United States v. Elliott, 210 F. Supp. 357 (D.C.Mass.1962) (where officers erroneously represented they had authority to enter against will of defendant, subsequent consent to search was coerced and invalid).
Accordingly, we hold that under the totality of the circumstances, the State has carried its burden of demonstrating that Brooks' consent to search was freely and voluntarily given. Because the Court of Appeals upheld the denial of the motion to suppress, albeit for another reason, we affirm the judgment below.
Judgment affirmed.
All the Justices concur, except CARLEY and MELTON, JJ., who concur specially.
MELTON, Justice, concurring specially.
I respectfully disagree with the majority's conclusion that we do not need to presently answer the question addressed to the parties on certiorari of "[w]hether the State must demonstrate `reasonable grounds' to justify a search or seizure despite the existence of a validly imposed condition of probation or parole that prospectively waived the probationer or parolee's Fourth Amendment rights." In this case, the facts make it difficult to determine whether there was adequate independent consent at the time of the search as opposed to mere acquiescence. There is no showing that the police asked for and received consent to search. There is a showing that the police represented Brooks' probation agreement as authority to search and that Brooks accommodated them. The majority equates the act of accommodation as consent. Rather than rule on this basis, I would reach the question presented on certiorari and find that reasonable grounds are not necessary to justify a probation search like the one in this case.
As a special condition of probation, Jerry Matthew Brooks knowingly and voluntarily waived his Fourth Amendment rights with regard to future searches. Under these circumstances, I would hold that, because Brooks agreed to this special condition, he consented to a search like the one in this case. See Samson v. California, 547 U.S. 843, 857(IV), 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006) ("[T]he Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee" where parole conditions include parolee's consent to such searches); Fox v. State, 272 Ga. 163, 166(2), 527 S.E.2d 847 (2000) ("when a probationer has not consented to a search, a warrantless search of a probationer's home must be based upon reasonable grounds") (emphasis supplied); People v. Robles, 23 Cal. 4th 789, 795, 97 Cal. Rptr. 2d 914, 3 P.3d 311 (2000) ("[A] person may validly consent in advance to warrantless searches and seizures *71 in exchange for the opportunity to avoid serving a state prison term") (emphasis supplied). As a result of his conviction, Brooks chose to pay this price for his freedom, and the State has the right to the full benefit of that bargain.
I am authorized to state that Justice Carley joins me in this special concurrence.
NOTES
[1] There is no claim that the special condition of probation authorizing testing for illegal substances was constitutionally invalid or improperly imposed. See generally Mock v. State, 156 Ga.App. 763, 275 S.E.2d 393 (1980) (prohibition against consumption of alcohol authorized by predecessor to OCGA § 42-8-35(a)(1)).
[2] Brooks himself acknowledged these facts at his sentencing hearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318400/ | 677 S.E.2d 507 (2009)
STATE of North Carolina
v.
Victoria Graham GOODE.
No. COA08-1145.
Court of Appeals of North Carolina.
June 16, 2009.
*509 Attorney General Roy A. Cooper, by Assistant Attorney General Alvin W. Keller, Jr., for the State.
Amos Granger Tyndall, Chapel Hill, for Defendant.
BEASLEY, Judge.
Victoria Graham Goode (Defendant) appeals from judgment entered on her convictions of first-degree murder and attempted first-degree murder. We find no error.
The evidence shows the following: Defendant was involved in a romantic relationship with Tanya Mattison (Mattison) for seven years. They lived together approximately four to five years. Defendant discovered in early 2007 that Mattison had cheated on her with Veronica Malone (Malone), but the couple agreed to stay together. However, on the morning of 1 July 2007, Mattison informed Defendant that she was terminating the relationship. Defendant, in an attempt to prevent Mattison from leaving the residence, took Mattison's keys, some of her jewelry, and her cell phone. Defendant left their residence and drove to a nearby park.
While Defendant was at the park, Malone and her nephew, D.M.[1], went to Defendant's residence to assist Mattison with her plans to move out of the home. D.M. testified that as he and Malone were loading up Malone's car, a Dodge Durango, he overheard Mattison yell, "there she goes." D.M. then saw Defendant driving her blue Camry towards the Durango. As Malone stood between the inside of the Durango and its door, Defendant's car hit the Durango's opened door and D.M. saw Malone laying on the road, badly injured. D.M. went inside the home to call the police and when he returned outside, he witnessed Defendant running towards the house with a hammer in her hand. D.M. testified that Defendant was running up the street yelling, "I am going to kill that b____, I am going to get you." Mattison succeeded in grabbing the hammer out of Defendant's hands and wrestling her to the ground.
Demarcus Mouzzon (Mouzzon)[2], who lived in the neighborhood, testified that Defendant got back into her Camry, drove down the street, "[m]ade a U-turn and just gunned it." D.M. attempted to help Malone, who was laying down on the street, when Defendant struck both of them with her Camry, running over Malone and hitting D.M. Mouzzon testified that Defendant did not appear to use the brakes after making a U-turn until she struck Malone.
Tomocus Alston (Alston), who also lived in the neighborhood, corroborated Mouzzon's testimony. As Alston attempted to assist Malone, he saw Defendant drive her car in their direction, running over Malone, and dragging her 20 yards.
D.M. testified that he could not stand up because his legs were broken. Both victims were taken to the hospital. D.M. was treated for two broken legs, but Malone died later that day. The cause of Malone's death was *510 multiple blunt force injuries consistent with being struck by a vehicle.
At trial, the jury found Defendant guilty of first-degree murder of Malone and attempted first-degree murder of D.M. Defendant was sentenced to life imprisonment without parole. From these judgments and convictions, Defendant appeals.
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant first argues her attorney conceded her guilt to second-degree murder without her consent. As a result, Defendant further argues that she was denied effective assistance of counsel. We disagree.
Defendant relies on State v. Harbison, where our Supreme Court held that, "a counsel's admission of his client's guilt, without the client's knowing consent and despite the client's plea of not guilty, constitutes ineffective assistance of counsel." State v. Harbison, 315 N.C. 175, 179, 337 S.E.2d 504, 506-07 (1985). When this occurs, "the harm is so likely and so apparent that the issue of prejudice need not be addressed." Id. at 180, 337 S.E.2d at 507. We reiterate that "[a] plea decision must be made exclusively by the defendant.... Because of the gravity of the consequences, a decision to plead guilty must be made knowingly and voluntarily by the defendant after full appraisal of the consequences." Id. "For us to conclude that [defendant] permitted his counsel to concede his guilt to a lesser-included crime, the facts must show, at a minimum, that defendant knew his counsel [was] going to make such a concession." State v. Matthews, 358 N.C. 102, 109, 591 S.E.2d 535, 540 (2004).
In the present case, Defendant's counsel explained to the trial court judge in Defendant's presence that Defendant had consented to permitting her counsel to argue to the jury that she was guilty of homicide, but not first-degree murder. The trial court judge spoke directly with Defendant to ensure that she understood and consented to an admission of guilt to homicide, less than first-degree murder. The following colloquy, in relevant part, between the trial court and Defendant occurred:
Court: Your lawyer has indicated to the Court, as you have heard him a moment ago, that he is going to argue to the jury that you may have caused the death of at least right now Miss Malone, but that it was not first degree murder and that he may argue to the jury that they can consider some lesser offense I presume less than first degree murder. You have a right to plead not guilty and have a jury trial on all of the issues. You can concede you are guilty on some lesser offense if you so desire for whatever reason.
....
The only issue before the Court is whether or not you will allow your lawyer to proceed with this trial strategy. That is, argue that you may be guilty of some offense other than first degree murder. It's not something that you have to do. It is something that you can dothat he can do with your consent. I want to know if Mr. Collins your lawyer has, first of all, talked over this strategy were [sic] you at some point.
Defendant: Yes, sir.
Court: All right. Do you understand that you do not have to concede that you are guilty of any offense, and that as a matter of trial strategy you can concede that. That is your right? Do you understand that?
Defendant: Yes, sir.
Court: What is it you wish to tell the Court, if anything, about this situation? Do you consent to your lawyer making the argument that he intends to make to the jury or do you not consent?
Defendant: I consent.
Court: All right. Is there anything you want to ask the Court about that or is there anything you want to say about that situation?
Defendant: Not at this time.
....
Court: Then Mr. Court Reporter, Mr. Collins, the lawyer for the defendant, has addressed the Court in open court in the presence of the defendant that as a trial strategy he may argue to the jury, with *511 the consent of the defendant, that she might be guilty of some lesser offense other than first degree murder. The Court has explained this situation to the defendant and given her an opportunity to respond. The Court finds as a fact, and concludes as a matter of law, that the defendant consents to this trial strategy used by her lawyer though [sic] argument that if she is guilty of anything at all, that it is some lesser included offense other than first degree murder. Court finds this to be the informed consent of the defendant, that it is made freely, voluntarily and understandingly, and the Court finds that the lawyer can make such argument without detriment to the defendant.
The trial court's inquiry of Defendant is sufficient evidence that Defendant knowingly consented to an admission of guilt. In State v. McDowell, our Supreme Court found a knowing consent to a concession of guilt where the record revealed that the trial court informed defendant of the need for authorization for the concession, that defendant stated he and counsel had discussed the arguments, that defendant had consented to the concession, and that counsel's jury argument was as Defendant had authorized. State v. McDowell, 329 N.C. 363, 387, 407 S.E.2d 200, 213 (1991). In the present case, Defendant knowingly and voluntarily consented to allow her attorney to admit her guilt to second-degree murder. As our Supreme Court held in McDowell, we conclude that the trial court's inquiry was consistent with the requirements of Harbison.
When there is a knowing consent, as demonstrated by this case, "the issue concerning ineffective assistance of counsel should be examined pursuant to the normal ineffectiveness standard set forth in Strickland v. Washington[.]" McDowell, 329 N.C. at 387, 407 S.E.2d at 213. Defendant must show two things. First, Defendant must show that her counsel's performance was deficient. "This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) Second, Defendant must also show that the deficient performance prejudiced the defense. "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. There must be a demonstration that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
As we discussed above, Defendant gave a knowing and voluntary consent to her counsel to concede guilt to a lesser offense. Defendant's counsel conceded that Defendant was guilty of second-degree murder but not first-degree murder in his opening and closing arguments. Defendant has not demonstrated any deficiency in her counsel's performance nor that she was therefore deprived of a fair trail. This assignment of error is overruled.
COMPETENCY
In Defendant's second argument, she contends that the trial court erred by failing to ensure Defendant was competent for trial throughout all the proceedings. Defendant argues that her due process rights under the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Sections 19 and 23 of the North Carolina Constitution were violated when the trial court failed to ensure that she had the mental capacity to understand the nature and object of the proceedings, to consult with counsel, and to assist in preparing her defense during all phases of the trial. We disagree.
"The question of the capacity of the defendant to proceed may be raised at any time on motion by the prosecutor, the defendant, the defense counsel, or the court." N.C. Gen.Stat. § 15A-1002(a) (2007). N.C. Gen.Stat. § 15A-1001(a) (2007) provides that:
[n]o person shall be tried, convicted, sentenced or punished for a crime when by reason of mental illness or defect he is unable to understand the nature and object *512 of the proceedings against him, to comprehend his own situation in reference to the proceedings, or to assist in his defense in a rational or reasonable manner.
The burden rests upon Defendant to establish his mental incapacity. State v. Gates, 65 N.C.App. 277, 283, 309 S.E.2d 498, 502 (1983).
On 25 March 2008, Defendant's counsel informed the trial court of his concern for Defendant's mental state because the staff in the jail had not given Defendant her anti-anxiety medication for that day. The following, in pertinent part, was exchanged:
DEFENSE: I have noticed a steadily deteriorating emotional state of [Defendant] over the course of the day.... We had a talk ... [w]hat she said to me then was I can't do this anymore, but I felt like that she was still competent. I learned ... that she was not given the medication that she has been taking ... since July for anxiety.... For reasons unknown to use [sic] that was not given to her this morning. I just asked her if she knows where she is and she told me no....
COURT: She told you what?
DEFENSE: She said no.... I anticipate and I plan to call her as a witness. I am completely confident that she is not able to do that right now.... And I will say that this is the first indication that I have had since I began representing her that there was any question about her competence. I had her evaluated by a psychologist for competence early on, and that's never been an issue.
At the request of Defendant's counsel, the trial court adjourned until the next day.
During the recess, in open court and outside the presence of the jury, the trial court determined that Defendant had not received her medication that morning "through no fault of her own," but because the nurse dispensing the medications had not reached Defendant before her trial. The following day, the trial court reconvened without any discussion or reference to Defendant's mental status. Once the court makes a determination that the defendant is competent to stand trial, the court's findings of fact are conclusive on appeal if there is evidence to support them. State v. McCoy, 303 N.C. 1, 18, 277 S.E.2d 515, 528 (1981).
Under normal circumstances, "the trial court `[m]ust hold a hearing to determine the defendant's capacity to proceed' if the question is raised." State v. King, 353 N.C. 457, 466, 546 S.E.2d 575, 584 (2001) (quoting N.C. Gen.Stat. 15A-1002(b)(3)). However, as illustrated by the present case, "a defendant may waive the benefit of statutory or constitutional provisions by express consent, failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon it." State v. Young, 291 N.C. 562, 567, 231 S.E.2d 577, 580 (1977) (internal quotations omitted). Because Defendant "did not thereafter request a competency hearing or make a motion detailing the specific conduct that leads the moving party to question [Defendant's] capacity to proceed," Defendant "waived [her] statutory right to a competency hearing under N.C.G.S. § 15A-1002(b) by [her] failure to assert that right." King, 353 N.C. at 466, 546 S.E.2d at 585. Therefore, when Defendant failed to object to the trial court resuming the trial without a competency hearing, she effectively waived her statutory rights. This assignment of error is overruled.
TRANSFERRED INTENT
Defendant argues that the trial court erred by applying the common law doctrine of transferred intent to the instruction of attempted first-degree murder in regards to D.M. We disagree.
The common law doctrine of transferred intent provides that:
[i]t is an accepted principle of law that where one is engaged in an affray with another and unintentionally kills a bystander or a third person, his act shall be interpreted with reference to his intent and conduct towards his adversary. Criminal liability, if any, and the degree of homicide must be thereby determined. Such a person is guilty or innocent exactly as [if] the fatal act had caused the death of his adversary. It has been aptly stated *513 that "[t]he malice or intent follows the bullet."
State v. Wynn, 278 N.C. 513, 519, 180 S.E.2d 135, 139 (1971) (quoting 40 Am.Jur., 2d Homicide, § 11). Under this doctrine "it is immaterial whether [Defendant] intended injury to the person actually harmed; if [Defendant] in fact acted with the required or elemental intent toward someone, that intent suffices as the intent element of the crime charged as a matter of substantive law." State v. Locklear, 331 N.C. 239, 245, 415 S.E.2d 726, 730 (1992).
In State v. Andrews, 154 N.C.App. 553, 572 S.E.2d 798 (2002), the defendant was convicted of two counts of attempted first-degree murder. The evidence showed that the defendant was separating from his wife, Kelly Andrews (Kelly). One day while Kelly and her friend, Brian Evsich (Evsich), were walking in a store parking lot, the defendant "revved" his engine and struck both Kelly and Evsich with his car. Id. at 555, 572 S.E.2d at 800. Once the car stopped, the defendant approached Kelly, stabbing her three times. Id. In the Andrews case, our Court held that the instruction of transferred intent was proper. "Because defendant acted with the specific intent to kill [Kelly], evidence of that intent could properly serve as the basis of the intent element of the offense against [Evsich]." Id. at 559, 572 S.E.2d at 802.
We apply the reasoning of Andrews to the case before us in our analysis of whether the evidence is sufficient to support the doctrine of transferred intent. Defendant injured D.M. while intending to attack Malone. Whether Defendant possessed the specific intent to injure D.M. is not the query. Defendant's specific intent to murder Malone serves as a sufficient basis for the charge of attempted first-degree murder of D.M. Therefore, the trial court did not err in instructing the jury on the doctrine of transferred intent. This assignment of error is overruled.
JURY INSTRUCTIONS
In Defendant's final assignment of error, she argues that the trial court erred by instructing the jury, over Defendant's objection, that it could find Defendant guilty of first-degree murder based on the felony murder rule. We disagree.
The jury was charged with the following instructions, in pertinent part:
You may find the defendant guilty of first degree murder either on the basis of malice, premeditation and deliberation, or under the first degree felony murder rule, or both.
First degree murder on the basis of malice, premeditation and deliberation is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation.
First degree murder under the first degree felony murder rule is the killing of a human being in the perpetration of or attempt to perpetrate assault with a deadly weapon inflicting serious injury.
....
Members of the jury, if you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant intentionally assaulted the victim with a deadly weapon and inflicted serious injury, and that while committing or attempting to commit assault with a deadly weapon inflicting serious injury the defendant killed the victim, and that the defendant's act was a proximate cause of the victim's death, and that the defendant committed or attempted to commit assault with a deadly weapon inflicting serious injury with the use of a deadly weapon, then it would be your duty to return a verdict of guilty of first degree murder under the felony murder rule.
Defendant requested that the trial court judge not instruct the jury on the felony murder rule because the evidence did not support such an instruction. However, Defendant now argues that because the instruction refers to "the victim" in the singular form, that this instruction was error. Defendant contends that our Supreme Court noted in State v. Jones, 353 N.C. 159, 538 S.E.2d 917 (2000), that "`cases involving a single assault victim who dies of his injuries have never been' construed to allow the underlying assault of a victim to satisfy the predicate *514 felony for the felony murder of the same victim."
"In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." N.C.R.App. P. 10(b)(1). "When the error asserted on appeal is not grounded in the objection before the trial court the alleged error is not preserved for appellate review." State v. Riley, 159 N.C.App. 546, 553, 583 S.E.2d 379, 384 (2003). "As the objections at trial in no way supported defendant's assignment of error on appeal, we conclude that defendant did not preserve this error for appellate review pursuant to Rule 10(b)(2)." State v. Egbert Francis, Jr., 341 N.C. 156, 160, 459 S.E.2d 269, 271 (1995). Therefore, we must review this assignment error under the plain error standard. State v. Odom, 307 N.C. 655, 656, 300 S.E.2d 375, 376 (1983).
In State v. Odom, the Supreme Court defines the plain error rule as follows:
[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a "fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,"... or where it can be fairly said "the instructional mistake had a probable impact on the jury's finding that the defendant was guilty."
Odom, 307 N.C. at 660, 300 S.E.2d at 378 (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982)). Before relief under the "plain error" rule, "`the appellate court must be convinced that absent the error the jury probably would have reached a different verdict.'" State v. Hartman, 90 N.C.App. 379, 383, 368 S.E.2d 396, 399 (1988) (quoting State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986)).
In the present case, Defendant was convicted of the first-degree murder of Malone on the basis of both malice, premeditation, and deliberation and under the first-degree felony murder rule. Therefore, the fact that Defendant was convicted under the felony murder rule is immaterial as it does not have a probable effect on the jury finding Defendant guilty of first-degree murder. Assuming arguendo that instructing the jury on the felony murder rule was error, the absence of that error would not have led the jury to reach a different verdict. Because the jury found Defendant guilty of first degree murder under both theories, the verdict would have remained the same. Consequently, Defendant has failed to show plain error and this assignment of error must be overruled.
For the foregoing reasons, we conclude that the Defendant had a fair trial, free from prejudicial error.
No error.
Judges McGEE and GEER concur.
NOTES
[1] D.M. is a pseudonym used to refer to a juvenile to protect the privacy.
[2] D.M. and Demarcus Mouzzon (Mouzzon) are not the same person. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2854895/ | COURT
OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT
WORTH
NO.
2-08-114-CR
ANTOINE DEVON WHITE APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM
THE 78TH DISTRICT COURT OF WICHITA COUNTY
------------
MEMORANDUM
OPINION[1]
------------
I. Introduction
Appellant Antoine Devon White appeals his conviction for
murder. In one issue, White argues that
the evidence is legally and factually insufficient to sustain his
conviction. We will affirm.
II. Background
David McDowell was a cab driver in Wichita Falls. He was working the night shift around 3:30
a.m. on November 3, 2006, when he took a call to pick up some passengers at an
apartment on Humphreys Street. He picked
up White, White=s girlfriend Latasha Brigham, and their
three-month-old son and drove them to Latasha=s apartment on
Professional Drive. White and Latasha
got into an argument at the apartment, and at around 5:00 a.m., McDowell picked
up White at Latasha=s apartment and drove him back to the
apartment on Humphreys Street. McDowell
radioed to his shift supervisor Thomas Terry that he was taking a passenger
back to where he had picked him up on Humphreys Street.
Later that morning, Terry tried to radio to McDowell to
have him pick up other passengers, but McDowell did not answer. Terry drove to the Humphreys Street address
to look for McDowell and found his van running with the driver=s door open and
the headlights on. Terry called the
police. While waiting for the police to
arrive, Terry drove closer to the van and saw McDowell slumped over in the
driver=s seat of the
van.
Police arrived and found McDowell dead in his van. There was a large pool of blood and money in
the street by the driver=s side.
McDowell had been cut and stabbed approximately eighteen times. The police went to the Humphreys Street
apartment where McDowell had delivered his last customer and spoke with Latasha=s sister Monnica
Brigham, who lives at the apartment with her husband and children. The police then went to Latasha=s apartment, and
Latasha agreed to go to the police station to give a statement.
The police searched for White for several days. They received information that he was staying
at an apartment on Bridwell Street and, on November 9, 2006, got a search
warrant to search the Bridwell Street apartment. They did not find White but they seized
several items of evidence, including a disassembled pocket knife.[2] Later that day, DPS Trooper Veronica Garcia
was traveling on Highway 82 in Lorenzo, Texas, approximately 180 miles west of
Wichita Falls, when she saw a man walking west toward Lubbock. She stopped because she thought the man was
walking too close to the fog line. White
asked the trooper for a ride to Lubbock, approximately nineteen miles
away. Trooper Garcia told White that she
would drive him to a nearby truck stop but that he had to identify himself and
empty his pockets before he could get in her car. White obliged, but Trooper Garcia still saw
bulges in his pockets so she patted him down.
She found a newspaper article in his pocket that appeared to have his
photo on it. Trooper Garcia asked
dispatch to run White=s information, confirmed that he had a
warrant for his arrest, and arrested him.
White was tried for McDowell=s murder. At his trial, Monnica, Latasha, and Monnica=s brother-in-law
Terrence Arps testified that on the night of November 2, 2006, they were at
Monnica=s apartment on
Humphreys Street. They all testified that White went to Monnica=s apartment that
night and got into an argument with Latasha and Terrence because he thought
Latasha had been Atalking to@ Terrence. Latasha testified that White accused her and
Terrence of sleeping together and that, at one point, White said that somebody
is going to end up getting hurt. White
left, but he returned to the apartment and, at around 3:00 a.m., he woke up
Latasha and told her they were going home.
Latasha called a cab. Latasha
explained that White often got jealous of her and that, during the cab ride,
White got mad at her and Agave [her] a look@ that he typically
gave when he was jealous because she was conversing with the cab driver. Latasha testified that White left her
apartment at around 5:00 a.m., that she saw headlights, but that she did not
know if he left in a cab.
Monnica, Terrence, and Latasha all testified that they had
seen White with a large knife that had brass knuckles on it on the night of
November 2, 2006. Monnica described it
as Amachete-looking@ with about a 12B14"
blade, and Terrence described it as Aa Jim Bowie@ knife with a
curved blade.
Tarrant County Deputy Chief Medical Examiner Dr. Marc
Krouse testified about the results of his autopsy on McDowell=s body. He opined that the cuts and stabs on McDowell=s body resulted
from a long, narrow, sharp object with a single edge, such as a steak knife or
pocketknife. He testified that the
wounds were consistent with one knife, although he could not eliminate the
possibility that more than one knife was used.
He explained that six of McDowell=s wounds were
consistent with an attack from behind.
Christopher Reynolds testified that he was in jail in
Wichita Falls in a cell next to White for a couple of weeks in December
2006. Reynolds had never met White
before, and the two men talked about how they were both from Virginia. Reynolds testified that White told him that
he killed McDowell and about the events leading up to and after McDowell=s murder. Reynolds wrote down what White told him and
sent it to his attorney. According to
Reynolds, White said that he and Latasha had taken a cab from Latasha=s cousin=s apartment on
Humphreys Street[3]
to Latasha=s apartment and that White had decided to
take the cab back to the Humphreys Street apartment to look for Terrence. In the cab on the way back to the apartment
on Humphreys Street, White Adecided that he
would take the cab driver for what he had on him.@ White told Reynolds that he decided to rob
the cab driver so that he could Are-up,@ which meant to
purchase more drugs to sell. White told
Reynolds that the cab driver Adidn=t see it coming@ and that he Aended up in the
passenger seat and took control of the situation just before they got to
Humphreys.@
Reynolds testified that White laughed at times when telling him about
the murder, Aparticularly whenever he said that the old
man didn=t ever see it
coming.@
White told Reynolds that after the murder, he Awent and re-upped@ and then went
back to Latasha=s apartment, where they got in a fight, so
he packed some clothes and went to a friend=s upstairs
apartment in the same complex. When he saw the police go to Latasha=s apartment, he
called another friend to pick him up and take him to Lubbock. On the way to Lubbock, they stopped for gas,
and he bought a newspaper with his photo on it; the friend found the newspaper
and left White on the side of the road.
White told Reynolds that he bought the paper to read later and to show
his friends in Lubbock. He also told
Reynolds that he had bagged up all the clothes from the night of the murder and
dumped them at a rest stop.
Reynolds testified that he did not receive a deal for
testifying and that he had already made a plea agreement prior to telling his
attorney and the prosecutor what White had told him.
The jury convicted White for McDowell=s murder and
assessed his punishment at sixty years= imprisonment and
a $7,500 fine. The trial court sentenced
him accordingly.
III. Standards of Review
A. Legal Sufficiency
In reviewing the legal
sufficiency of the evidence to support a conviction, we view all of the
evidence in the light most favorable to the prosecution in order to determine
whether any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
This standard gives full play
to the responsibility of the trier of fact to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts. Jackson,
443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the
weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04
(Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App.
2008), cert. denied, 129 S. Ct. 2075 (2009). Thus, when performing a legal sufficiency
review, we may not re-evaluate the weight and credibility of the evidence and
substitute our judgment for that of the factfinder. Dewberry v. State, 4
S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131
(2000). Instead, we Adetermine whether the necessary inferences are reasonable based upon
the combined and cumulative force of all the evidence when viewed in the light
most favorable to the verdict.@ Hooper v. State, 214
S.W.3d 9, 16B17 (Tex.
Crim. App. 2007). We must presume that
the factfinder resolved any conflicting inferences in favor of the prosecution
and defer to that resolution. Jackson,
443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.
The standard of review is the
same for direct and circumstantial evidence cases; circumstantial evidence is
as probative as direct evidence in establishing the guilt of an actor. Clayton, 235 S.W.3d at 778; Hooper,
214 S.W.3d at 13.
B. Factual
Sufficiency
When reviewing the factual
sufficiency of the evidence to support a conviction, we view all the evidence
in a neutral light, favoring neither party. Neal v. State, 256 S.W.3d
264, 275 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 1037 (2009);
Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether the evidence supporting
the conviction, although legally sufficient, is nevertheless so weak that the
factfinder=s
determination is clearly wrong and manifestly unjust or whether conflicting
evidence so greatly outweighs the evidence supporting the conviction that the
factfinder=s
determination is manifestly unjust. Lancon
v. State, 253 S.W.3d 699, 704 (Tex. Crim. App. 2008); Watson, 204
S.W.3d at 414B15,
417. To reverse under the second ground,
we must determine, with some objective basis in the record, that the great
weight and preponderance of all the evidence, though legally sufficient,
contradicts the verdict. Watson,
204 S.W.3d at 417.
In determining whether the
evidence is factually insufficient to support a conviction that is nevertheless
supported by legally sufficient evidence, it is not enough that this court Aharbor a subjective level of reasonable doubt to overturn [the]
conviction.@ Id.
We cannot conclude that a conviction is clearly wrong or manifestly
unjust simply because we would have decided differently than the jury or
because we disagree with the jury=s resolution of a conflict in the evidence. Id.
We may not simply substitute our judgment for the factfinder=s. Johnson v. State, 23
S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407
(Tex. Crim. App. 1997). Unless the
record clearly reveals that a different result is appropriate, we must defer to
the jury=s determination of the weight to be given contradictory testimonial
evidence because resolution of the conflict Aoften turns on an evaluation of credibility and demeanor, and those
jurors were in attendance when the testimony was delivered.@ Johnson, 23 S.W.3d at
8. Thus, unless we conclude that it is
necessary to correct manifest injustice, we must give due deference to the
factfinder=s
determinations, Aparticularly
those determinations concerning the weight and credibility of the evidence.@ Id. at 9. Our deference in this regard safeguards the
defendant=s right to a
trial by jury. Lancon, 253 S.W.3d
at 704. An
opinion addressing factual sufficiency must include a discussion of the most
important and relevant evidence that supports the appellant=s complaint on appeal. Sims
v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
IV. Sufficiency of the Evidence
In one issue, White argues that the evidence is legally and
factually insufficient to convict him of murder because Reynolds=s testimony was
inconsistent with prior statements he made to police and other evidence
presented at trial.
A. Law on Murder
A person commits murder if he intentionally or knowingly
causes the death of an individual or intends to cause serious bodily injury and
commits an act clearly dangerous to human life that causes the death of an
individual. Tex. Penal Code Ann. ' 19.02(b)(1)B(2) (Vernon 2003).
B. Legally Sufficient Evidence
White combines his legal and factual sufficiency claims,
which are based almost entirely on the credibility of Reynolds=s testimony. He even states, AThis case would be
simple if Reynolds told one story regarding what the Appellant told him and
then the facts at the crime scene corroborated the story.@ But White=s credibility
challenges are not relevant to our legal sufficiency review because we must
presume that the factfinder resolved any conflicting inferences in favor of the
prosecution and defer to that resolution.
See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton,
235 S.W.3d at 778.
White also argues that the
evidence that White was carrying a large Amachete@ knife
conflicts with Dr. Krouse=s testimony
that McDowell=s wounds
were caused by a small knife with about a 4" blade, such as a pocket knife. Regardless of this discrepancy between the
knife White possessed and the knife purportedly used to murder McDowell, other
evidence showed that White was the perpetrator of McDowell=s murder. Reynolds testified
that White told him that he killed a cab driver for drug money. Latasha testified that she, White, and their
son took a cab to her apartment hours before McDowell=s murder and that the cab driver looked like McDowell based on a photo
taken at the crime scene and showed to her at trial. The cab company=s shift manager testified that McDowell radioed to him that he was
taking a passenger back to where he had picked him up on Humphreys Street.
Viewing the evidence in the light most
favorable to the jury=s verdict,
we hold that a rational trier of fact
could have found that the evidence at trial was sufficient to establish that White
murdered McDowell. See Jackson,
443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. Accordingly, we hold that the evidence is
legally sufficient to support White=s conviction.
C. Factually Sufficient
Evidence
White argues that factually
insufficient evidence exists to support his conviction because Reynolds=s testimony was the primary evidence showing that White was the
perpetrator of McDowell=s murder but
numerous inconsistencies existed between Reynolds=s testimony, his statements to police, and other evidence at trial.
White first argues that
Reynolds=s testimony is inconsistent with the Aphysical evidence.@ Reynolds testified that White
said he Aended up in the passenger seat and took control of the situation,@ but other evidence at trial showed that McDowell was attacked from
behind.[4]
Reynolds also testified that White told him
that he knocked on Monnica=s door after he
killed McDowell. White argues that this
testimony conflicts with evidence of boot prints found at the scene leading in
a different direction than Monnica=s apartment.
White next points to three alleged inconsistencies between
Reynolds=s testimony and
his statements to his attorney and law enforcement:
At one point, under oath, Reynolds
testified that Appellant came up from behind McDowell. At trial, Reynolds testified that Appellant
attacked him from the front passenger seat.
In a [] separate story, Reynolds told law enforcement and the DA=s Office that Appellant started in
the back seat and then moved to the front seat.
The inconsistencies didn=t stop there. Reynolds testified that he heard the
Appellant tell another inmate that [he had used] Aa knife and not a crowbar.@
However, in all of his conversations with his attorney, law enforcement,
and the DA=s Office, Reynolds never told that
version of his story.
Additionally, Reynolds told two
different stories regarding when Appellant decided to leave town. In his statements to law enforcement he
stated that Appellant told him he decided to leave when he saw his name in the
newspaper but when he testified he stated that Appellant said he left after he
heard of the SWAT raid.
Regarding the first alleged inconsistencyCwhether White
attacked Reynolds from behind or from the front passenger seatCReynolds clarified
any alleged inconsistency on cross examination, AMy understanding
is that it started whenever he was behind the driver, and as he took control of
the situation he moved in the front passenger=s seat. . . . He [White], more or less, stated that he=d come up from
behind him, that the old man never saw it coming.@
Regarding the second alleged inconsistencyCconcerning the
weapon used by WhiteCWhite mischaracterizes Reynolds=s testimony. The following exchange took place at trial,
Q. When
he was talking to you about the way that this all occurred, what did he tell
you that he used as a weapon?
A. It
wasn=t ever really brought up. There was a mention of a crowbar, there was a
mention of a knife, but there wasn=t ever really anything specifically brought up.
Q. When
did he talk about a crowbar?
A. He
was actually talking to another inmate . . . because that inmate had said that C he had stated that he had heard
that [White] had used a crowbar, and Mr.
White said, [A]Well, I don=t know anything about a crowbar.[A]
Thus,
Reynolds was testifying about what another inmate Ahad heard,@ not what White
had said, and it is understandable that he had not mentioned this passing
comment by another inmate in his previous statements to his attorney or law
enforcement.
Finally, regarding any alleged inconsistency about when
White had decided to leave town, Reynolds testified on cross examination that
he told police that White said he left town when he saw his picture in the
paper but agreed that White also said he left the apartment complex where
Latasha lived when he saw police at her apartment. We agree with the State that both
explanations are reasonable and that, consequently, no inconsistency
exists. Even assuming that portions of Reynolds=s testimony were
inconsistent with his prior statements or with other evidence presented at
trial, the jury was free to believe some or all of the testimony. See Lancon, 253 S.W.3d at 706; see also
Fuentes v. State, 991 S.W.2d 267, 271B72 (Tex. Crim.
App.), cert. denied, 528 U.S. 1026 (1999) (noting that Ato avoid intruding
on the jury=s role as arbiter of the weight and
credibility of the evidence, a factual sufficiency review remains deferential
to the jury=s verdict@).
White also asserts that Reynolds was not credible because
he was a convicted felon, he had a bad reputation for truth and honesty, and Alegal troubles
were piling up on him in a number of different counties.@ White called two witnesses to testify that
Reynolds had a reputation for being dishonest and untruthful. It was within the purview of the jury to
determine the credibility of Reynolds=s testimony and,
as the sole judge of the witnesses=s credibility, the
jury could choose to believe some testimony and disbelieve other testimony. See
Lancon, 253 S.W.3d
at 704.
We have reviewed the evidence in a neutral light, and we
find no objective basis in the record for holding that the jury=s verdict was
clearly wrong or manifestly unjust or that it was contradicted by the great
weight and preponderance of the evidence.
See Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414B15, 417. Rather, the evidence presented at trial was
sufficient to support the verdict, and no contrary evidence exists that would
render the evidence factually insufficient under the applicable standard of
review. See Lancon, 253 S.W.3d at
704; Watson, 204 S.W.3d at 414B15, 417.
Accordingly, we hold that the evidence is factually sufficient to support White=s conviction.
Having held that the evidence is legally and factually
sufficient, we overrule White=s sole issue.
V. Conclusion
Having overruled White=s sole issue, we
affirm the trial court=s judgment.
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, WALKER, and
MCCOY, JJ.
DO
NOT PUBLISH
Tex.
R. App. P. 47.2(b)
DELIVERED: December 31, 2009
[1]See Tex.
R. App. P. 47.4.
[2]The dissassembled pocketknife
tested negative for the presence of blood.
[3]Reynolds testified that Latasha=s cousin lived at the Humphreys
Street apartment, but in fact, Latasha=s sister lived there.
[4]Dr.
Krouse testified that six
of McDowell=s wounds were consistent with an
attack from behind. Siobain Callahan, an
identification technician for the Wichita Falls Police Department, testified
that although she is not an expert in Acast off blood,@ it appeared that no one had been sitting in the front
passenger seat of McDowell=s van because that seat had no Asmeared blood@ patterns consistent with someone
sitting on blood. | 01-03-2023 | 09-04-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1743180/ | 301 So. 2d 187 (1974)
In re The QUALITY SCHOOL PLAN, INC., a corp.
v.
STATE of Alabama.
Ex parte The Quality School Plan, Inc., a corp.
SC 956.
Supreme Court of Alabama.
October 3, 1974.
T. Eric Embry, Birmingham, for petitioner.
None opposed.
*188 FAULKNER, Justice.
Petition of The Quality School Plan, Inc., a Corporation, for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in The Quality School Plan, Inc., a Corp. v. State, 53 Ala.App. 418, 301 So. 2d 183.
Writ denied.
MERRILL, HARWOOD, BLOODWORTH, MADDOX and JONES, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312871/ | BERYL A. HOWELL, Chief Judge *53Judge Rotenberg Educational Center, Inc. ("JRC") is described as a non-profit treatment center for "patients who engage in self-injurious and aggressive behaviors." Compl. ¶ 4, ECF No. 1. For some patients, JRC's treatment regimen includes use of the Graduated Electronic Decelerator ("GED"), which is an "electrical stimulation device." Id. ¶ 1. In 2016, the Food and Drug Administration ("FDA"), a division of the Department of Health and Human Services ("HHS"), published a proposed rule that would ban use of the GED. See Proposal to Ban Electrical Stimulation Devices Used to Treat Self-Injurious or Aggressive Behavior ("Proposed Ban"), 81 Fed. Reg. 24,386 (Apr. 25, 2016). Following publication of the Proposed Ban, JRC, as well as JRC Parents and Friends Association, Inc. ("Parents Association"), and Paul E. Peterson, who is the father of an adult patient at JRC and himself a member of the Parents Association (collectively, the plaintiffs), submitted requests under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to the FDA for records related to, among other things, the Proposed Ban, see Compl. ¶¶ 23, 35, 48.Now, the defendants-the FDA and HHS-claim to have partially completed their response to the plaintiffs' FOIA requests by producing, with appropriate withholdings, all responsive records.1 The plaintiffs, however, argue that the defendants have failed to justify, or misapplied, FOIA's production exemptions in withholding certain responsive records and have otherwise withheld documents without any statutory authority. Accordingly, the parties have cross-moved for partial summary judgment. Defs.' Mot. Partial Summ. J. ("Defs.' Mot."), ECF No. 25 ; Pls.' Cross-Mot. Partial Summ. J. ("Pls.' Cross-Mot."), ECF No. 30. For the reasons set forth below, both the defendants' motion and the plaintiffs' cross-motion are granted in part and denied in part.I. BACKGROUNDThis section summarizes the regulatory history of the JRC's GED, the plaintiffs' FOIA requests, the defendants' response to those requests, and the current litigation posture in this case."JRC is a residential program" that treats patients "who engage in severe problem behaviors, including self-injurious behavior ... and aggressive behavior." Pls.' Statement of Material Facts As To Which There Is No Genuine Dispute ("Pls.' SMF"), ¶ 1, ECF No. 30 (citing Decl. of Glenda P. Crookes, Executive Director of JRC ("JRC E.D. Decl.") ¶ 3, ECF No. 28-1 ). Forty-eight of JRC's patients, "all of whom engage in life threatening *54and treatment-resistant" self-injurious behavior, are treated with the GED, which is an "electrical stimulation device." Id. (citing JRC E.D. Decl. ¶ 3). For each patient, a probate judge has determined that electrical stimulation "is the most effective, least-restrictive treatment for [the patient's] severe behaviors." Id. (citing JRC E.D. Decl. ¶ 3).JRC's treatment methods have been on the FDA's radar for nearly three decades. In 1991, JRC applied to the FDA for pre-market clearance, also known as 510(k) clearance, for the first version of the GED. Id. ¶ 3 (citing FOOD & DRUG ADMIN. , Premarket Notification 510(k) , https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfPMN/pmn.cfm?ID=K911820 (last visited Mar. 21, 2019) ). "A 510(k) is a premarket submission made to FDA to demonstrate that the device to be marketed is at least as safe and effective, that is, substantially equivalent, to a legally marketed device," and is required when a manufacturer intends to introduce a medical device into distribution for the first time, or to introduce a device that has undergone changes since the previous clearance that might affect the device's safety or effectiveness. FOOD & DRUG ADMIN. , 510(k) Premarket Notification 510(k) , https://www.fda.gov/MedicalDevices/DeviceRegulationandGuidance/HowtoMarketYourDevice/PremarketSubmissions/PremarketNoti fication510k/default.htm (last visited Mar. 20, 2019). JRC received that clearance in 1994. Pls.' SMF ¶ 3 (citing FOOD & DRUG ADMIN. , Premarket Notification 510(k) , https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfPMN/pmn.cfm?ID=K911820 (last visited Mar. 21, 2019) ). In 2000, after JRC had substantially modified the GED, the FDA, following an inspection of JRC's premises, advised that JRC need not obtain a new 510(k) clearance. Id. ¶ 5 (citing Decl. of Matthew D. Rodgers, plaintiffs' counsel ("Pls.' Decl."), Ex. 34, ECF Nos. 28-2 & 28-3).A decade later, the FDA notified JRC that, although the FDA told JRC in 2000 that "GED devices were exempt from the 510(k) requirement ... [w]e have learned that this is not accurate." Pls.' Decl., Ex. 37; see also Pls.' SMF ¶ 8. The FDA explained that GEDs are "devices" under the Food, Drug and Cosmetic Act and must receive 510(k) clearance before marketing. Pls.' Decl., Ex. 37. Thus, the JRC was told to submit new 510(k) paperwork for the GED because of modifications made since 1994. Pls.' Decl., Ex. 37; see also Pls.' SMF ¶ 8.At the FDA's request, JRC provided a "pre-submission" in February 2013 in anticipation of JRC's eventual 510(k) application. Pls.' SMF ¶ 13 (citing Pls.' Decl., Ex. 1). The parties set a meeting for March 25, 2013 to discuss the pre-submission, but the FDA cancelled the meeting shortly before the scheduled date. Id. ¶¶ 13-14 (citing Pls.' Decl., Ex. 2). Around the same time, the FDA met with "anti-aversive advocacy groups" and several former JRC patients. Id. ¶¶ 15-16 (citing Pls.' Decl., Ex. 12).For the year between March 2013 and April 2014, the FDA and JRC representatives did not communicate. Id. ¶ 20 (citing JRC E.D. Decl. ¶ 7). In April 2014, JRC received notice that a committee of the FDA's Center for Devices and Radiological Health ("CDRH") had organized a panel on neurological devices, which panel convened on April 24, 2014, id. (citing JRC E.D. Decl. ¶ 7), and heard testimony, inter alia , from two former JRC patients and one former JRC employee, id. ¶ 21 (citing Pls.' Decl., Ex. 21). The panel was divided on the health benefits of the GED. Id. ¶ 22 (citing Proposed Ban, 81 Fed. Reg. at 24401 ).Two years after the panel convened, the FDA, on April 25, 2016, published the Proposed *55Ban, which, if finalized, would prohibit JRC's use of the GED. Id. ¶ 25 (citing Proposed Ban, 81 Fed. Reg. at 24,393 ). The FDA has not published a final rule. Id. ¶ 27.Nearly three months after the FDA published the Proposed Ban, Peterson submitted, on July 19, 2016, six identical FOIA requests to the FDA and five FDA components ("First Request"). Defs.' Statement Of Material Facts As To Which There Is No Genuine Issue ("Defs.' SMF") ¶ 2 (citing Compl., Exs. A-1 - A-6, ECF Nos. 1-1 - 1-6). The First Request asked for records about, among other things, "FDA inspections of JRC; the Neurological Devices Panel of the Medical Devices Advisory Committee; and FDA's proposed ban of [electrical stimulation devices]." Id. (citing Compl., Exs. A-1 - A-6, ECF Nos. 1-1 - 1-6). The FDA, consistent with internal regulations, consolidated these requests for processing. Id. ¶ 3 (citing First Decl. of Sarah Kotler, Division of Freedom of Information ("First DFOI Decl.") ¶ 15, ECF No. 24-2 ).Peterson sent two additional FOIA requests to the FDA on August 23, 2016. One of these requests sought, among other things, records dating back to 2012 of meetings between FDA employees and stakeholders in electrical stimulation devices; of communications between the FDA and other divisions of HHS about electrical stimulation devices; of literature analyzing electrical stimulation devices that the FDA received or created; and of communications or records between FDA employees and former patients of JRC. Id. ¶ 4 (citing Compl., Ex. F ("Second Request"), ECF No. 1-11 ). The other request sought "materials related to expert opinions from three individuals about electrical stimulation devices." Id. ¶ 5 (citing Compl., Ex. H ("Third Request"), ECF No. 1-13 ).Finally, on December 27, 2016, JRC submitted a letter that the FDA treated as a FOIA request ("Fourth Request"), in which JRC sought "information related to statements made in FDA's Federal Register notice announcing a proposed ban on electrical stimulation devices." Id. ¶ 6 (citing Compl., Ex. J, ECF No. 1-15 ). The Parents Association sent a letter on February 27, 2017, joining the Fourth Request. Pls.' SMF ¶ 33 (citing Compl., Ex. M, ECF No. 1-8 ).When the FDA receives a FOIA request, the FDA's Division of Freedom of Information ("DFOI"), the unit responsible for the FOIA compliance, directs the request to the FDA components most likely to possess responsive records. Defs.' SMF ¶¶ 7, 11 (citing First DFOI Decl. ¶¶ 7, 11). DFOI also is tasked with locating any responsive records that have been previously produced in response to separate FOIA requests. Id. ¶ 12 (citing First DFOI Decl. ¶ 11).After receiving the plaintiffs' four FOIA requests, DFOI distributed the First, Second and Fourth Requests to four FDA components: the Office of the Chief Counsel ("OCC"), the New England District Office, the CDRH's Division of Information Disclosure, and the Office of Regulatory Affairs ("ORA"), so that each could search for responsive documents. Id. ¶¶ 16-19 (citing First DFOI Decl. ¶¶ 22-25). In addition, two HHS divisions outside the FDA agreed to produce records responsive to the First, Second, and Fourth Requests. Id. ¶ 20 (citing First DFOI Decl. ¶ 26). The Third Request was directed only to the CDRH's Division of Information *56Disclosure. Id. ¶ 18 (citing First DFOI Decl. ¶ 24). From September 2016 through July 2018, HHS and multiple FDA components produced records to the plaintiffs, as summarized below.DFOI made five separate productions to the plaintiffs: on September 7 and 28, 2016, id. ¶¶ 21, 23, 24 (citing First DFOI Decl. ¶¶ 31-34); on February 13, 2018, id. ¶ 30 (citing First DFOI Decl. ¶ 27); and on July 2 and 11, 2018, id. ¶ 28 (citing First DFOI Decl. ¶ 38). In total, DFOI produced roughly 10,000 pages of redacted records.The OCC, for its part, made three productions of its own records to the plaintiffs on the following dates: December 4 and 22, 2017, id. ¶¶ 40, 45, 51 (citing Decl. of David Mednick, Office of the Chief Counsel ("OCC Decl.") ¶¶ 17, 24, 31, ECF No. 24-4 ); and March 5, 2018, id. ¶ 53 (citing OCC Decl. ¶ 33). All told, the plaintiffs received, with redactions, "a total of over 2,800 pages of OCC records." Id. ¶ 58 (citing OCC Decl. ¶ 38). Separately, the OCC produced, on March 19, June 13, and June 18, 2018, after consultation with the Department of Justice ("DOJ"), redacted records that had originated within DOJ. Id. ¶¶ 39, 41, 44, 46, 52, 55 (citing OCC Decl. ¶¶ 16, 18, 25, 32, 35). Likewise, the OCC released, on April 3, and May 14, 2018, after consultation with separate HHS divisions, 26 pages and 58 pages, respectively, of redacted records that originated within those divisions. Id. ¶¶ 41, 56, 73, 75 (citing OCC Decl. ¶¶ 19, 36; Decl. of Michael S. Marquis, Department of Health and Human Services ("HHS Decl.") ¶¶ 7, 8, ECF No. 24-3 ). Finally, the OCC provided, on February 13, 2018, after consultation with the Department of State ("State"), redacted records that originated with State. Id. ¶¶ 47, 54 (citing OCC Decl. ¶¶ 26, 34).The New England District Office, too, had responsive records. That office made four productions to the plaintiffs on the following dates: on September 26, 2016, of 16 redacted pages, id. ¶¶ 60, 61 (citing First Decl. of Barbara A. Recupero, New England District Office ("First NE-DO Decl.") ¶ 11, 12, ECF No. 24-7 ); on May 2, 2018, of 562 redacted pages, id. ¶ 65 (citing First NE-DO Decl. ¶ 18); and on June 15 and June 20, 2018, totaling 10,205 redacted pages, id. (citing First NE-DO Decl. ¶ 18).The ORA made two productions to the plaintiffs: on June 4, 2018, of 10 redacted pages, id. ¶ 71 (citing Decl. of Melissa Pickworth, Office of Regulatory Affairs ("ORA Decl.") ¶ 14, ECF No. 24-6 ); and on June 29, 2018, of 372 pages of redacted records, id. (citing ORA Decl. ¶ 14).Two HHS divisions outside the FDA produced records to the plaintiffs beyond the records released in consultation with the OCC. The first division-the Office of the Secretary-released 756 pages of redacted records, identified through an internal search, on June 15, 2018. Id. ¶ 78 (citing HHS Decl. ¶ 14). The second division-the Administration for Community Living-provided the plaintiffs, on July 6, 2018, with 485 pages of redacted records. Id. ¶ 82 (citing First Decl. of Richard Nicholls, Administration for Community Living ("First Community Living Decl.") ¶ 11, ECF No. 24-5 ).In total, HHS divisions, both inside and outside the FDA, but excluding the CDRH, have produced 24,241 pages of records to date. Pls.' SMF ¶ 39. Of those pages, approximately 12,642 pages were redacted in full, id. ¶ 42, and another 1,340 pages were redacted in part, id. ¶ 44.D. THE LITIGATION HISTORYThe FDA now has produced over 24,000 pages, largely spurred on by the plaintiffs' instant lawsuit. Indeed, from the plaintiffs' submission of four FOIA requests between July and December 2016, to their initiation *57of this lawsuit in October 2017, see Compl., the defendants had released only 92 pages of records, Pls.' SMF ¶ 35.Shortly after the plaintiffs' filed their complaint, and after the Court instructed the parties to propose a briefing schedule to govern proceedings in this case, Min. Order (Dec. 7, 2017), the defendants started releasing records to the plaintiffs, as described supra in Section I.C. By January 2018, the defendants claimed that all FDA divisions other than the CDRH, which had not yet started releasing responsive documents, had responded in full to the plaintiffs' FOIA requests, see Suppl. Joint Meet & Confer Report at 8, ECF No. 16, a plainly erroneous claim given the productions subsequently made throughout 2018. At that time, the CDRH estimated that its search had uncovered roughly 60,000 pages of records responsive to the plaintiffs' requests. Id. at 9.The apparent semi-complete nature of the production was too great an obstacle for the parties to agree on a schedule to govern proceedings in this case, see generally id. , prompting the need for a status conference to accomplish that case management task, Min. Order (Jan. 19, 2018) (scheduling status conference); Min. Order (Jan. 25, 2018) (re-scheduling status conference). Following the February 2, 2018 status conference, the case was bifurcated. "CDRH and any other HHS component to which a referral has been made" were ordered to "make a rolling production of no fewer than 5,000 pages per month to the plaintiffs, beginning on March 1, 2018, and continuing every sixty days thereafter until production is complete." Min. Order (Feb. 2, 2018). Separately, the Court entered a scheduling order setting a deadline for the other defendants to file an index of documents withheld in full or in part-known as a Vaughn Index, see Vaughn v. Rosen , 484 F.2d 820 (D.C. Cir. 1973) -and deadlines for the parties to file dispositive motions "as to issues arising from the responses by each FDA component other than the [CDRH]." Min. Order (Feb. 2, 2018).The defendants filed their first Vaughn index by the initial deadline. See Original Vaughn Index, ECF No. 19-1. By agreement of the parties, however, see Joint Mot. Revise & Extend Scheduling Order, ECF No. 20, the scheduling order was modified to set a new deadline for an updated Vaughn index and the filing of dispositive motions, see Min. Order (Mar. 29, 2018). After additional extensions, the defendants moved for partial summary judgment, see Defs.' Mot., and provided an updated Vaughn Index, see Updated Vaughn Index ("2nd Index"), ECF No. 24-9. That index, totaling 1,929 pages, gives a Bates-stamp number, description, date, author, recipients, the basis for withholdings, and the number of pages fully withheld, for all records withheld in full or in part. Id. The index confirms that the defendants have withheld records under three FOIA Exemptions: (1) FOIA Exemption 5's deliberative-process privilege and attorney-client privilege, 5 U.S.C. § 552(b)(5) ; (2) Exemption 6's shield for personnel, medical and similar files, "the disclosure of which would constitute a clearly unwarranted invasion of personal privacy," id. § 552(b)(6) ; and (3) Exemption 7(c)'s protection for law enforcement records that "could reasonably be expected to constitute an unwarranted invasion of privacy," id. § 552(b)(7)(C), a narrower category of records implicating personal privacy interests than Exemption 6.After the plaintiffs filed their cross-motion for summary judgment, see Pls.' Cross-Mot., the defendants filed a third version of the Vaughn Index, 50 pages longer than the prior version, which corrected some problems that the plaintiffs *58had identified. See Suppl. Vaughn Index ("3rd Index"), ECF No. 33-2. That index is 1,979 pages and, like the prior versions, gives for most withheld documents a Bates-stamp number, a description, the document's date, author and recipients, whether the document was withheld in part or in full, the basis for any withholding, and the number of pages fully withheld. Id.The parties' cross motions for summary judgment are now ripe for resolution.2II. LEGAL STANDARDUnder Federal Rule of Civil Procedure 56, summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "In FOIA cases, 'summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.' " Judicial Watch, Inc. v. U.S. Secret Serv. , 726 F.3d 208, 215 (D.C. Cir. 2013) (quoting Consumer Fed'n of Am. v. U.S. Dep't of Agric. , 455 F.3d 283, 287 (D.C. Cir. 2006) ); see also Students Against Genocide v. Dep't of State , 257 F.3d 828, 833 (D.C. Cir. 2001) ("[A]n agency is entitled to summary judgment if no material facts are in dispute and if it demonstrates 'that each document that falls within the class requested either has been produced ... or is wholly exempt from the Act's inspection requirements.' " (quoting Goland v. CIA , 607 F.2d 339, 352 (D.C. Cir. 1978) ) ). Most FOIA cases will be resolved on summary judgment. Brayton v. Office of the U.S. Trade Rep. , 641 F.3d 521, 527 (D.C. Cir. 2011).FOIA was enacted "to promote the 'broad disclosure of Government records' by generally requiring federal agencies to make their records available to the public on request." DiBacco v. U.S. Army , 795 F.3d 178, 183 (D.C. Cir. 2015) (quoting U.S. Dep't of Justice v. Julian , 486 U.S. 1, 8, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988) ). To balance the public's interest in governmental transparency and "legitimate governmental and private interests that could be harmed by release of certain types of information," United Techs. Corp. v. U.S. Dep't of Def. , 601 F.3d 557, 559 (D.C. Cir. 2010) (quoting Critical Mass Energy Project v. Nuclear Regulatory Comm'n , 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc ) (alterations omitted) ), FOIA has nine exemptions, set forth in 5 U.S.C. § 552(b), which "are explicitly made exclusive and must be narrowly construed," Milner v. Dep't of Navy , 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) (internal quotation marks and citations omitted). "[T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976).FOIA authorizes federal courts to "enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B). District courts must "determine de novo whether non-disclosure was permissible." Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec. , 777 F.3d 518, 522 (D.C. Cir. 2015). When the sufficiency of "the release of information under the *59FOIA" is challenged, "the agency has the burden of showing that requested information comes within a FOIA exemption." Pub. Citizen Health Research Grp. v. Food & Drug Admin. , 185 F.3d 898, 904 (D.C. Cir. 1999) ; see also U.S. Dep't of Justice v. Landano , 508 U.S. 165, 171, 113 S.Ct. 2014, 124 L.Ed.2d 84 (1993) (noting that "[t]he Government bears the burden of establishing that the exemption applies"). This burden does not shift even when the requester files a cross-motion for summary judgment because "the Government 'ultimately [has] the onus of proving that the [documents] are exempt from disclosure,' " while the "burden upon the requester is merely 'to establish the absence of material factual issues before a summary disposition of the case could permissibly occur.' " Pub. Citizen Health Research Grp. , 185 F.3d at 904-05 (quoting Nat'l Ass'n of Gov't Emps. v. Campbell , 593 F.2d 1023, 1027 (D.C. Cir. 1978) ) (alterations in original).III. DISCUSSIONThe parties' cross-motions for summary judgment raise four categories of disagreements: (1) whether the defendants have impermissibly withheld non-responsive information contained in otherwise responsive records; (2) whether the defendants have properly invoked the deliberative-process privilege under FOIA Exemption 5, see 5 U.S.C. § 552(b)(5) ; (3) whether the defendants have properly invoked Exemption 6 to withhold medical and similar records to protect against any "a clearly unwarranted invasion of personal privacy," id. § 552(b)(6) ; and (4) whether the defendants have produced all reasonably segregable, non-exempt information.3 These issues are considered seriatim.The D.C. Circuit recently clarified that an agency in receipt of a FOIA request need not produce non-responsive records, but must nonetheless release non-responsive information within a responsive record. Am. Immigration Lawyers Ass'n v. Exec. Office for Immigration Review ("AILA "), 830 F.3d 667, 676-79 (D.C. Cir. 2016). The defendants agree that their initial production, which redacted non-responsive information within responsive *60records, violated this rule. Defs.' Reply in Supp. of Mot. Partial Summ. J. & Opp'n to Pls.' Cross-Mot. Partial Summ. J. ("Defs.' Reply") at 38, ECF No. 33. To correct the problem, the defendants "re-reviewed their redactions of non-responsive material, and have unredacted and released non-exempt material within responsive records that was originally redacted on non-responsiveness grounds." Id. (citing Suppl. Decl. of Barbara A. Recupero, New England District Office ¶ 14, ECF No. 33-4 ). Yet, the defendants continue to withhold some non-responsive information because they deem that information to "so distinct in the document from the responsive material as to constitute a separate 'record.' " Id. at 39. Fifty-one such records are at issue. See Suppl. Decl. of Sarah Kotler, DFOI, ¶ 8, ECF No. 33-6. The defendants' shift-now claiming to have withheld only non-responsive records-puts a spotlight on a variation of the question of what constitutes an "agency record" under FOIA that has become particularly relevant since AILA : when must information be grouped into a single "agency record" and when can information be separated into multiple "agency records"?See 5 U.S.C. § 552(a)(4)(B) (empowering district courts to order the production of any "agency records improperly withheld")."Although FOIA includes a definition section, [ 5 U.S.C.] § 551, that section provides no definition of the term 'record.' " AILA , 830 F.3d at 678 ; see also Aguiar v. DEA , 865 F.3d 730, 735 (D.C. Cir. 2017) (explaining that "[a]lthough FOIA does not define 'agency records,' " the term has been limited to include "only [ ] those documents that an agency both (1) create[s] or obtain[s], and (2) control[s] ... at the time the FOIA request [was] made")(internal quotation marks and citations omitted; alterations and emphasis in original). In practice, agencies "define a 'record' when they undertake the process of identifying records that are responsive to a request," since defining the universe of responsive records is the first step an agency should take in response to a FOIA request. AILA , 830 F.3d at 677-78. Agencies have the flexibility to define "record" in a "range of possible ways," but some benchmarks inform that analysis. Id. at 678. DOJ guidance, which has been updated in response to AILA , instructs agencies to "use the definition of record found in the Privacy Act to guide their decisions as to what is a record for purposes of the FOIA. Thus, each 'item, collection, or grouping of information' on the topic of the request can be considered a distinct 'record.' " DEP'T OF JUSTICE , OIP GUIDANCE: DEFINING A "RECORD" UNDER FOIA (updated Feb. 15, 2017); accord 5 U.S.C. § 552a(a)(4). Generally, agencies should not define records "on less than a page-by-page basis." DEP'T OF JUSTICE , OIP GUIDANCE: DETERMINING THE SCOPE OF A FOIA REQUEST , FOIA Update, Vol. XVI, No. 3 (updated Aug. 13, 2014).Here, if the defendants had committed to a consistent understanding of when information should be treated as a single agency record, or separated into multiple agency records, that understanding could have prompted focused judicial review. Yet, the defendants' withholding of non-responsive information in this case suffers a more fundamental problem: midway through litigation the defendants reclassified collections of information that had been treated as one agency record as multiple agency records.As the D.C. Circuit has said about an agency's determination of whether a document meets FOIA's definition of "agency record," courts must "be careful to ensure that '[t]he term 'agency records' ... not be manipulated to avoid the basic structure of the FOIA: records are presumptively *61disclosable unless the government can show that one of the enumerated exemptions applies.' " Consumer Fed'n of Am. , 455 F.3d at 287 (quoting Bureau of Nat'l Affairs, Inc. v. U.S. Dep't of Justice , 742 F.2d 1484 (D.C. Cir. 1984) ) (alterations in original). Although the question here is not whether information qualifies as an agency record in the first place, but rather about where one record ends and another begins, the admonition against record manipulation is no less applicable. Allowing the defendants to re-define the contours of a given record midway through litigation would invert the ordinary process of responding to a FOIA request, in which the first step is identifying the responsive records, see AILA , 830 F.3d at 677, just because the agency realized that, without the change, certain information would be subject to disclosure. That is precisely the sort of manipulation that undermines the purpose of FOIA.That the defendants have altered their conception of what constitutes a single record is evident from comparison of the defendants' second Vaughn Index and third Vaughn Index. Recall that FOIA requires agencies to account for records only if they are responsive to a request. See AILA , 830 F.3d at 677 ("The statute thus sets forth the broad outlines of a process for agencies to follow when responding to FOIA requests: first, identify responsive records."). Agencies account for responsive records either by disclosing the record to the requester or claiming, and justifying, a statutory exemption. Id. Thus, "once an agency identifies a record it deems responsive to a FOIA request, the statute compels disclosure of the responsive record-i.e. , as a unit-except insofar as the agency may redact information falling within a statutory exemption." Id. Although the defendants now claim that multiple entries on the third Vaughn Index account for wholly independent, but non-responsive records, those records' inclusion in the indices signals that the defendants did not initially view the same entries as describing stand-alone records. If that was the agency's position all along, those records would not have been included in the indices.For example, the third Vaughn Index entry for an email attachment, Bates-stamped JRC OES Supplemental 1 001770-71, describes the email attachment as is its own record. See 3rd Index at 356-57. By contrast, in the earlier, second Vaughn Index, the agency described the same document as non-responsive, but "included in this production only because it is an attachment to an email that contains another attachment that includes responsive material." 2nd Index at 352-53. The second Vaughn Index reveals that the defendants viewed the email attachment as a piece of a single record that included the parent email and additional attachment. Otherwise, the record would not have been included in the index at all. Examples of a similar shift litter the indices. Compare 2nd Index at 335-36 with 3rd Index at 339-40; compare 2nd Index at 350-51 with 3rd Index at 354-55; compare 2nd Index at 352-53 with 3rd Index at 356-57; compare 2nd Index at 735-36 with 3rd Index at 752-53; compare 2nd Index at 781-82 with 3rd Index at 799-800.The defendants' reclassifications are even more troubling because many were done to split emails and their attachments into multiple records. While emails and their attachments are not per se a single record, at a minimum "attachments should reasonably be considered part and parcel of the email by which they were sent" when the email "make[s] explicit reference to, or include[s] discussion of, the missing attachments."*62Coffey v. Bureau of Land Mgmt. , 277 F.Supp.3d 1, 8 (D.D.C. 2017) ; see also Am. Oversight v. U.S. Gen. Servs. Admin. , 311 F.Supp.3d 327, 340 (D.D. C 2018) ("[E]ven without 'a per se rule that an email and its attachment must be treated as a single record,' ... the attachments to already-produced emails appear manifestly part of the 'communications' between GSA and the PTT and, absent any agency explanation why not, 'belong together.' " (quoting Coffey , 277 F.Supp.3d at 8 ; Parker v. U.S. Dep't of Justice, Office of Prof'l Responsibility , 278 F.Supp.3d 446, 452 (D.D.C. 2017) ) ); New Orleans Workers' Ctr. for Racial Justice v. U.S. Immigration & Customs Enf't , No. 15-431 (RBW), 373 F.Supp.3d 16, 44, 2019 WL 1025864, at *11 (D.D.C. Mar. 4, 2019) (" '[A]ttachments should reasonably be considered part and parcel of the email by which they were sent' if 'the emails ... make explicit reference to, or include discussion of, the [ ] attachments.' " (quoting Coffey , 277 F.Supp.3d at 8 ) ); Families for Freedom v. U.S. Customs & Border Prot. , No. 10-cv-2705, 2011 WL 4599592, at *5 (S.D.N.Y. Sep. 30, 2011) (rejecting agency's separation of emails and attachments because "[t]he attachments can only be fully understood and evaluated when read in the context of the emails to which they are attached. That is the way they were sent and the way they were received. It is also the way in which they should be produced"). More than that, ubiquitous email practices suggest that agencies will struggle to justify separating an email and its attachments into multiple records. Of course, from time to time emails are sent with the wrong attachment, but in the ordinary course an attachment is included with the email because it relates to the body of the email. Though not a per se rule, ordinary practice leaves very little wiggle room in generally requiring an email with attachments to be kept together as a single record.Here, however, the defendants need not be given the chance to explain why some emails and attachments should be considered as distinct records because reclassifying records midway through litigation is improper. Accordingly, the defendants must release all records currently listed on the third Vaughn Index as being withheld for non-responsiveness that are not also subject to a FOIA statutory exemption.B. THE FDA'S EXEMPTION 5 WITHHOLDINGSFOIA Exemption 5 permits agencies to withhold "inter-agency or intra agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). This exemption "incorporates the privileges that the Government may claim when litigating against a private party, including the governmental attorney-client and attorney work product privileges, the presidential communications privilege, the state secrets privilege, and the deliberative process privilege." Abtew v. U.S. Dep't of Homeland Sec. , 808 F.3d 895, 898 (D.C. Cir. 2015) ).4 Under the deliberative-process *63privilege, an agency may withhold "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Dep't of Interior v. Klamath Water User Protective Ass'n , 532 U.S. 1, 8-9, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001). "The deliberative process privilege reflects the commonsense notion that agencies craft better rules when their employees can spell out in writing the pitfalls as well as strengths of policy options, coupled with the understanding that employees would be chilled from such rigorous deliberation if they feared it might become public." Judicial Watch, Inc. v. U.S. Dep't of Def. , 847 F.3d 735, 739 (D.C. Cir. 2017)."To qualify for the deliberative process privilege, an intra-agency memorandum must be both pre-decisional and deliberative." Abtew , 808 F.3d at 898 (citing Coastal States Gas Corp. v. Dep't of Energy , 617 F.2d 854, 866 (D.C. Cir. 1980) ). "A document is 'predecisional' if it precedes, in temporal sequence, the 'decision' to which it relates," id. , or was " 'prepared in order to assist an agency decisionmaker in arriving at his decision,' rather than to support a decision already made," Petroleum Info. Corp. v. U.S. Dep't of Interior , 976 F.2d 1429, 1434 (D.C. Cir. 1992) (quoting Renegotiation Bd. v. Grumman Aircraft, 421 U.S. 168, 184, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975) ). Deliberative, in this context, means the record is "a part of the agency give-and-take-of the deliberative process-by which the decision itself is made." Abtew , 808 F.3d at 899. Requiring that a record be "deliberative" adds little to the requirement that the record be predecisional. Nat'l Sec. Archive v. CIA , 752 F.3d 460, 463 (D.C. Cir. 2014).To gauge whether the deliberative-process privilege has been asserted appropriately, the government must explain, for each withheld record, at least, (1) "what deliberative process is involved, ... (2) the role played by the documents in issue in the course of that process, ... and (3) the nature of the decisionmaking authority vested in the office or person issuing the disputed document[s], and the positions in the chain of command of the parties to the documents." Ctr. for Biological Diversity v. U.S. Envtl. Prot. Agency , 279 F.Supp.3d 121, 145 (D.D.C. 2017) (internal citations omitted). The government, not the requester, must identify the deliberative process to which any record relates. 100Reporters LLC v. U.S. Dep't of Justice , 248 F.Supp.3d 115, 152 (D.D.C. 2017) (citing Coastal States , 617 F.2d at 868 ).Broadly, the defendants withheld under the deliberative-process privilege two groups of records: (1) those reflecting deliberations about regulatory and enforcement decisions and (2) drafts of documents.*64Defs.' Mem. P. & A. Supp. Defs.' Mot. Partial Summ. J. ("Defs.' Mem.") at 26-27, ECF No. 25. The first group of documents generally relate to the "appropriateness of different regulatory approaches as well as opinions and recommendations about how to best effectuate the regulatory approaches being considered." Id. at 27. The defendants enumerate the specific decisions to which the records relate as including "whether to propose a ban of electrical stimulation devices," First DFOI Decl. ¶ 44; "the regulatory strategy the agency should take with respect to JRC and [electrical stimulation devices]," First NE-DO Decl. ¶ 24; "discussion about how to respond to JRC's request for a part 16 hearing," OCC Decl. ¶ 43; "discussions about appropriate follow-up activity following the 2014 advisory panel meeting," ORA Decl. ¶ 19; "the status of inspections of the [JRC]," id. ; the "FDA's draft proposed rule-making regarding [electrical stimulation devices]," HHS Decl. ¶ 21; and the decision to send a draft letter to the United States Special Rapporteur on Torture, Decl. of Nelson D. Hermilla, Department of Justice ("DOJ Decl.") ¶ 11, ECF No. 24-1. As for second group of records, drafts, although not deliberative per se, have been withheld to keep from public view editorial judgments that could be inferred from comparing a final record to a prior version. Defs.' Mem. at 27-28; see also First NE-DO Decl. ¶ 24.The plaintiffs attack the defendants' withholdings under the deliberative-process privilege from several directions. First, the plaintiffs argue the defendants' descriptions of the basis for Exemption 5 withholdings is deficient because the defendants have excluded dates of records. Pls.' Mem. Supp. Cross-Mot. Summ. J. & Opp'n Defs.' Mot. Summ. J. ("Pls.' Opp'n") at 11-12, ECF No. 30. Second, the descriptions are inadequate for describing too generally the deliberative processes to which withheld records contributed. Id. at 20-21. Third, the defendants have omitted the decisionmaking authority of the individuals related to a record. Id. at 21-22. Fourth, the plaintiffs maintain that, insofar as can be discerned, the defendants have impermissibly applied Exemption 5 to draft documents, id. at 23-26, and to records that are not predecisional or are purely factual, id. at 26-29.The Court considers each of the ways in which the defendants' Exemption 5 withholdings are insufficiently explained, and then defendants' application of Exemption 5 to draft documents. Review of whether withheld documents are actually predecisional, however, is not possible at this point because for many records the defendants have not explained the basis of the exemption well enough to assess whether it has been properly claimed.1. The FDA's Omission of DatesThe plaintiffs contend that the absence of dates associated with records is a problem that renders the defendants' Vaughn indices "structurally deficient." Pls.' Opp'n at 10. Although the plaintiffs press the view that every Vaughn index must contain certain information, including, among other things, record dates, see id. at 10-12, a Vaughn index serves a function: to "justify [an agency's] actions without compromising its original withholdings by disclosing too much information." Judicial Watch, Inc. v. Food & Drug Admin. , 449 F.3d 141, 146 (D.C. Cir. 2006). While a comprehensive Vaughn Index "typically" includes certain categories of information, Ctr. for Biological Diversity , 279 F.Supp.3d at 144, "there is no fixed rule establishing what a Vaughn index must look like," ACLU v. CIA , 710 F.3d 422, 432 (D.C. Cir. 2013) ; see also *65Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice , 746 F.3d 1082, 1088 (D.C. Cir. 2014) ("[I]t is the function, not the form, of the index that is important."). Indeed, an agency need not even create a Vaughn Index to justify withholdings. See Judicial Watch I , 449 F.3d at 146.Of course, when an agency uses a Vaughn index to justify withholdings, the index cannot be organized in a way that fails to "fulfill the purposes of ... providing sufficient information to the requester and the Court for a fair evaluation of the propriety of any withholding." Ctr. for Biological Diversity , 279 F.Supp.3d at 144-45. That might happen, for example, if the index has a "slapdash identification system seem[ingly] designed to create confusion," fails to account for changes made between versions, or documents "are listed on the ... Vaughn index as withheld with no explanation whatsoever." Id. No such problems exist in this case.At the same time, the defendants have applied Exemption 5 to some undated records. 2nd Index at 474-75, 732-33; 3rd Index at 481-82, 749-50.5 Without a date, the plaintiffs claim that "there is no way of knowing when ... this email was generated, and thus whether this email is actually predecisional." Pls.' Opp'n at 11. Yet, the D.C. Circuit has never imposed a categorical rule against undated entries. Judicial Watch I , 449 F.3d at 151. Rather, "[d]ates are but one way to illustrate a chronology, and the FDA may have other ways to prove that the undated documents were indeed predecisional." Id. The single date-less entry that the plaintiffs have identified establishes that the record is predecisional by stating that the email "occurred prior to FDA taking action regarding [electrical stimulation devices]." 2nd Index at 732-33; 3rd Index at 749-50. Another date-less entry is a draft of the Proposed Ban, which the Vaughn Index explains is predecisional because "it was drafted before the agency established its final position on the subject matter discussed in the document." 2nd Index at 474-75; 3rd Index at 481-82. Thus, the defendants have established chronology even without a date.In the end, as discussed in the next section, the defendants' Exemption 5 justifications may be inadequate, but the absence of a date is not the problem.2. The FDA's Descriptions of the Deliberative ProcessMoving to the decision processes to which withheld records relate, an agency's "Exemption 5 claims must be supported with specificity and [in] detail." Senate of Puerto Rico v. U.S. Dep't of Justice , 823 F.2d 574, 585 (D.C. Cir. 1987). "To approve exemption of a document as predecisional, a court must be able to 'pinpoint an agency decision or policy to which the document contributed.' " Id. (quoting Paisley v. CIA , 712 F.2d 686, 698 (D.C. Cir. 1983) ); Hunton & Williams LLP v. U.S. Envtl. Prot. Agency , 248 F.Supp.3d 220, 241 (D.D.C. 2017) (" 'To justify its *66application of the deliberative-process privilege, an agency must address ... the nature of the specific deliberative process involved....' " (quoting Nat'l Sec. Counselors v. CIA , 960 F.Supp.2d 101, 189 (D.D.C. 2013) ) ); see also Trea Senior Citizens League v. U.S. Dep't of State , 923 F.Supp.2d 55, 68 (D.D.C. 2013) ("[A] broad and opaque description of the deliberative process involved does not provide the Court with enough detail about whether these documents are deliberative and predecisional."); Elec. Frontier Found. v. U.S. Dep't of Justice , 826 F.Supp.2d 157, 168 (D.D.C. 2011) ("The Court finds this description inadequate because it fails to identify a specific deliberative process to which the withheld email messages contributed."). Indeed, the D.C. Circuit has said that "[t]he failure to specify the relevant final decision constitutes a sufficient ground for remanding [Exemption 5 claims] to the district court." Senate of Puerto Rico , 823 F.2d at 585. "Without a sufficiently specific affidavit or Vaughn Index, a court cannot decide, one way or the other, a deliberative process privilege claim." Elec. Frontier Found. , 826 F.Supp.2d at 168.The plaintiffs assert that some of the defendants' descriptions of the deliberative processes to which records contributed are too vague to permit the necessary analysis of whether withheld records are predecisional. Pls.' Opp'n at 20. The plaintiffs are right. Emblematic of the problem, the Vaughn indices' descriptions of the deliberative processes to which records contributed include an "action being taken on electrical stimulation devices," 2nd Index at 2-3; 3rd Index at 2-3; "possible actions," 2nd Index at 4-5; 3rd Index at 4-5; "agency action," 2nd Index at 8-9; 3rd Index at 8-9; "action regarding [electrical stimulation devices] (such as proposing a rule)," 2nd Index at 732-33; 3rd Index at 749-50; "numerous matters being worked on," 2nd Index at 1749-50; 3rd Index at 1797-98; "regulatory action FDA is considering," 2nd Index at 1065-66; 3rd Index at 1090-91. Despite the defendants' numerous declarations generally describing the deliberative process undertaken by various FDA, in many cases the defendants fail to link those descriptions with entries on the Vaughn Indices, thus impeding review of whether the record is in fact predecisional.Nevertheless, the defendants stand by their nebulous descriptions, commenting that "a government agency invoking the [deliberative-process privilege] may rely on a relatively broad deliberative process that covers many documents if that is, in fact, the relevant process." Defs.' Reply at 17. Permissive rules are needed, in the defendants' view, to " 'encourage the candid and frank exchange of ideas' within agencies" and "to ensure that agencies do not have to 'operate in a fishbowl.' " Id. (quoting Nat'l Sec. Archive , 752 F.3d at 462-63 ). In any event, the defendants reject that decisions here could have been defined any more specifically, id. at 17, highlighting entries on the second Vaughn Index that identified the deliberative processes as consideration of possible "compliance measures," Defs.' Reply at 19 (citing 2nd Index at 1065-66), a "possible response to a media inquiry," id. (citing 2nd Index at 687-88), or "preparations for an upcoming inspection of JRC," id. (citing 2nd Index at 1071-72). Finally, the defendants assert that the reality of this case is a large volume of documents relate to a single decisionmaking process-whether to issue the Proposed Ban. Id. at 19-20. Presumptively, the defendants mean to argue that any ill-defined reference to "agency action" refers to deliberations about the content of the Proposed Ban.Each of the defendants' arguments is unavailing. First, referencing entries in which the deliberative process might have *67been described with the requisite level of detail is not a response to the inadequacy of the remaining descriptions. Second, the defendants' claim that whatever records have not been connected to an identifiable decisionmaking process should be treated as related to deliberation about the content of the Proposed Ban is unacceptable. See 100Reporters LLC , 248 F.Supp.3d at 153 ("Accepting DOJ and Defendant Intervenors' view of the deliberative process at issue would create a four-year umbrella effectively shielding all agency action from review without accounting for any subsidiary agency decisions."). If agencies could shield from review thousands of agency records because a years-long rule-making was underway, the deliberative-process privilege would be the exemption that ate the entire FOIA disclosure scheme. That simply will not do.The defendants' effort to define the deliberative process so broadly is rejected because the withheld records may in fact pertain to a litany of subsidiary decisions that defendants fail to acknowledge. Indeed, although the agency, and not the requester, has the burden of justifying the exemptions, Pub. Citizen Health Research Grp. , 185 F.3d at 904, the plaintiff supplied several possible subsidiary decisions to which the withheld records may relate, see Pls.' Reply Supp. Cross-Mot. Summ. J. ("Pls.' Reply") at 8-9. ECF No. 35 (listing subsidiary decisions). The record supports the plaintiffs' list, which includes, though is not limited to, decisions such as the FDA's about-face as to whether JRC was exempt from the 510(k) requirement, Pls.' SMF ¶ 5; the determination that by 2010 "JRC made major modifications to the original GED device," Suppl. Decl. of Matthew D. Rodgers, plaintiffs' counsel, Ex. 8, ECF No. 35-1 ; the decision to cancel a March 2013 meeting with JRC's representatives, Pls.' SMF ¶ 13; and the decision to seat a panel on neurological devices, id. ¶ 14. Even the declarations submitted from the defendants appreciate the multitude of decisions to which "agency action" might refer. Those include "whether to propose a ban of electrical stimulation devices," First DFOI Decl. ¶ 44; "discussion about how to respond to JRC's request for a part 16 hearing," OCC Decl. ¶ 43; "follow-up activity following the 2014 advisory panel meeting," ORA Decl. ¶ 19; "the status of inspections of [JRC]," id. ; the "FDA's draft proposed rule-making regarding [electrical stimulation devices]," HHS Decl. ¶ 21; and the decision to send a draft letter to the United States Special Rapporteur on Torture, DOJ Decl. ¶ 11. Without the defendants acknowledging these subsidiary decisions or tying records to those specific decisionmaking processes, the Court cannot be sure that a record related to "agency action" or "agency work on particular topics" is in fact predecisional.The defendants must update their Vaughn Indices to identify with adequate specificity the agency decision to which a record relates.6As for decisionmaking authority, the plaintiffs observe that the defendants have wholly "omitted information about the positions and responsibilities of the authors and recipients (other than some attorneys) of the records." Pls.' Opp'n at 22. The defendants do not dispute their omission, Defs.' Reply at 10-12, but bemoan the "extraordinary burden" if required "to provide a job description for each and every person who authored, sent, and/or received a document listed on the nearly 2,000-page index," id. at 11. In the alternative, the defendants propose that descriptions of decisionmaking authority are unnecessary to resolve the propriety of defendants' withholding under the deliberative-process privilege because the defendants otherwise connect the records to "ongoing work" on a final rulemaking or to "contemporaneous thoughts and opinions about plans for work that should be done to support FDA's efforts." Id. at 12. Moreover, the defendants dismiss the necessity of identifying the relationship between the individuals connected to a record if the author is plainly in an advice-giving role. Id. (citing Judicial Watch, Inc. v. U.S. Dep't of Justice ("Judicial Watch II "), 20 F.Supp.3d 260, 271 (D.D.C. 2014) ).Contrary to the defendants' position, explaining decisionmaking authority is an essential ingredient to justifying withholdings under the deliberative process exemption. See Access Reports v. Dep't of Justice , 926 F.2d 1192, 1195 (D.C. Cir. 1991) ("A key feature under both the 'predecisional' and 'deliberative' criteria is the relation between the author and recipients of the document. A document from a junior to a senior is likely to reflect his or her own subjective opinions and will clearly have no binding effect on the recipient. By contrast, one moving from senior to junior is far more likely to manifest decisionmaking authority and to be the denouement of the decisionmaking rather than part of its give-and-take."); Arthur Andersen & Co. v. I.R.S. , 679 F.2d 254, 258 (D.C. Cir. 1982) ("To establish that documents do not constitute the 'working law' of the agency, the agency must present to the court ... the nature of the decisionmaking authority vested in the office or person issuing the disputed document(s), ... and the positions in the chain of command of the parties to the documents." (internal quotation marks omitted) ). Even Judicial Watch II , the opinion which the defendants cite as hedging on the obligation to describe decisionmaking authority, in the paragraph after the one defendants quote, observed that "the agency 'must describe the nature of the decisionmaking authority vested in the office or person issuing the disputed document(s), and the positions in the chain of command of the parties to the documents.' " 20 F.Supp.3d at 271 (quoting Elec. Frontier Found. , 826 F.Supp.2d at 168 ). Judicial Watch II appreciated that in some instances a record may reflect advice giving rather than decisionmaking "even if the relationship between the author and recipient of challenged records is not one of subordinate and superior officials," 20 F.Supp.3d at 271, but did not relieve the agency of its duty to describe chain of command.Lastly, the effort that the defendants must undertake to identify the authority of individuals attached to a given record is not as daunting as defendants fear. While the defendants express trepidation about needing to "provide a job description for each and every person who authored, sent, *69and/or received a document listed on the nearly 2,000-page index," which surely would be a "Herculean" task, Defs.' Reply at 11, no such undertaking is necessary. The "key feature ... is the relation between the author and recipients of the document." Access Reports , 926 F.2d at 1195 ; see also Judicial Watch II , 20 F.Supp.3d at 270 (collecting D.C. Circuit cases explaining that critical information to justification of deliberative proves privilege is relationship between author and recipient). Marking, for example, a document as from a subordinate to a superior, from a superior to a subordinate, or as from peer to peer would communicate the needed information about the respective positions in the chain of command.Thus, the defendants next Vaughn Index must explain the dynamic between the author or individual sending, and the individuals receiving, the withheld record at issue to meet the requirement that record was part of the deliberative process.4. Withholding of Draft DocumentsFinally, the plaintiffs also contend that the defendants have improperly withheld draft documents under Exemption 5. See Pls.' Opp'n at 23-26. Documents designated as "drafts" are not per se covered under the deliberative-process privilege, but rather must meet the same two criteria as any other record. Arthur Andersen , 679 F.2d at 257-58. In addition, a draft that was predecisional and deliberative when prepared may "lose that status if it is adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public." Id. at 258. Additionally, "factual information which does not bear on the policy formulation is not subject to the deliberative-process privilege." Heffernan v. Azar , 317 F.Supp.3d 94, 125 (D.D.C. 2018).The plaintiffs first argue that the "Defendants withheld drafts or parts of drafts that FDA ultimately adopted," or, at a minimum, the defendants have failed to establish otherwise. Pls.' Opp'n at 25; see also Pls.' Reply at 10 ("Defendants admit that information in several records 'may ... have been adopted in the government's final document.' " As examples, the plaintiffs cite: (1) three partially withheld drafts of letters subsequently sent to the United Nations Special Rapporteur on Torture, see 2nd Index at 139-40, 940-41, 963; 3rd Index at 140-41, 962-63, 985-86; (2) a partially withheld draft of "Key Messages and Responsive Q & A" which contained "talking points about the proposed rule," see 2nd Index at 288-89; 3rd Index at 290-91; (3) a fully withheld draft of the Proposed Ban, see 2nd Index at 474-75; 3rd Index at 481-82; and (4) a partially withheld draft of a Form 483, which captured observations made during an inspection of JRC's premises, see 2nd Index at 1607; 3rd Index at 1636-37. The defendants answer that "[a]t most, the plaintiffs show that some of the drafts contain views, opinions, or other material that was eventually reflected in the final agency document." Defs.' Reply at 23.The defendants pick up on a nuance in the law governing FOIA's application to drafts that the plaintiffs skip past. A draft, as mentioned, even if once evincing deliberation, may "lose that status if it is adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public." Arthur Andersen , 679 F.2d at 258. So, for the deliberative process to apply to a draft document, an agency must show that a document contains " 'the ideas and theories which go into the making of the law' and not 'the law itself.' " Id. (quoting Sterling Drug, Inc. v. Fed. Trade Comm'n , 450 F.2d 698, 708 (D.C. Cir. 1971) ). In other *70words, the agency's burden is "[t]o establish that documents do not constitute the 'working law.' " Id. (quoting Taxation With Representation Fund v. IRS , 646 F.2d 666, 678 (D.C. Cir. 1981) ); see also Judicial Watch, Inc. v. U.S. Dep't of Def. , 847 F.3d 735, 739 (D.C. Cir. 2017) ("[A] document can lose its predecisional character-and the protections of the privilege-if the agency adopts the documents as its own.... To adopt a deliberative document ... the agency must make an 'express [ ]' choice to use a deliberative document as a source of agency guidance." (quoting NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 161, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) ) (emphasis in original) ). Thus, a draft does not lose its deliberative character by resembling the version that ultimately becomes the working law, but rather its deliberative character is lost if the draft-formally or informally-becomes the working law.Applying these principles first to the early drafts of the Proposed Ban, so long as a draft contributed to the deliberative back-and-forth, and was not formally or informally the agency's working law, that draft does not lose its character because the Proposed Ban paralleled a draft in some measure. Indeed, for the withheld draft that the plaintiffs cite, the defendants state explicitly that the draft was "not in its final form." 2nd Index at 474; 3rd Index at 481-82. Similarly, regarding the draft talking points cited by plaintiffs, the defendants explicitly state this document "contains redline edits and comment bubbles" and was later turned into a version of the agency's final position. 2nd Index at 288-89; 3rd Index at 290-91. As for the draft letters to the United Nations, the Index is explicit that the withheld drafts "contain[ ] comments from government employees suggesting certain changes to the draft letter before it is finalized" and explain that the letter was "subsequently finalized." See 2nd Index at 139-40, 940-41, 963; 3rd Index at 140-41, 962-63, 985-86. Finally, the entry for the Form 483 references the existence of a separate, final agency position and explains that changes between this draft and the final version would disclose "editorial judgments of government staff." 2nd Index at 1607; 3rd Index at 1636-37.Separately, the plaintiffs accuse the defendants have applying the deliberative-process privilege to "draft records simply because they are drafts" or to records that are not actually drafts. Pls.' Opp'n at 23-24. The plaintiffs provide a single example of each. Yet, the FDA's Executive Summary prepared for the April 24, 2014 panel, the record allegedly withheld simply because it is a draft, was withheld because "[t]his redline draft contains editorial comments of agency staff" to be considered before the document was finalized. 2nd Index at 992-93; 3rd Index at 1015. That application of Exemption 5 is proper. The record that plaintiffs allege is not actually a draft is a version of Power Point, prepared to "brief[ ] the FDA Commissioner about a possible Proposed Rule." 2nd Index at 531-33; 3rd Index at 538-40. Here, the defendants not only claim that the record is a draft, but that comparison of this version to the final version could reveal "editorial decisions of agency staff." 2nd Index at 531-33; 3rd Index at 538-40. Indeed, other entries in the Vaughn Index reference a final version of this Power Point. See, e.g. , 2nd Index at 142-44; 3rd Index at 143-45.7*71The defendants are entitled to partial summary judgment for the draft records withheld under Exemption 5.8C. THE FDA'S EXEMPTION 6 WITHHOLDINGSThe plaintiffs also contest the sufficiency of the defendants' withholdings under Exemption 6, which permits agencies to withhold "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). "FOIA's strong presumption in favor of disclosure is at its zenith in this Exemption 6 analysis." Am. Oversight , 311 F.Supp.3d at 345 (quoting Jurewicz v. U.S. Dep't of Agric. , 741 F.3d 1326, 1332 (D.C. Cir. 2014) ).Review of personal privacy withholdings under Exemption 6 proceeds in stages. Stage one requires the Court to "determine whether the [records] are personnel, medical or 'similar' files covered by Exemption 6." AILA , 830 F.3d at 673. If the records are such files, in stage two, the Court must then "determine whether their disclosure would constitute a clearly unwarranted invasion of privacy." Id. (internal quotation marks omitted). Stage two embeds its own two-level review. Id. The first inquiry is whether "disclosure would compromise a substantial, as opposed to de minimis , privacy interest." Id. at 673-74. Next, if disclosure would infringe a substantial privacy interest, the privacy interest must be balanced "against the public interest in the release of the records." Id. at 674. Only one public interest matters: "the extent to which disclosure would serve the 'core purpose of the FOIA,' which is 'contribut[ing] significantly to public understanding of the operations of activities of the government. ' " U.S. Dep't of Def. v. Fed. Labor Relations Auth. , 510 U.S. 487, 495, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994) (quoting Dep't of Justice v. Reporters Comm. for Freedom of Press , 489 U.S. 749, 775, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) ) (emphasis and alternations in original). "In other words, disclosure of government records under FOIA is meant to help the public stay informed about 'what their government is up to.' " AILA , 830 F.3d at 674 (quoting Reporters Comm. , 489 U.S. at 773, 109 S.Ct. 1468 ). For Exemption 6, the D.C. Circuit has put the burden on the agency to establish that any withheld records meet the statutory balancing test. Id. at 673.9*72The defendants have applied Exemption 6 to personal or medical files that identify JRC patients. Defs.' Mem. at 30; Defs.' Reply at 31.10 As to step one, the defendants correctly state that Exemption 6 applies to those records because the statute explicitly covers medical files. Defs.' Mem. at 30; see also Defs.' Reply at 31. For step two, the defendants contend that releasing identifying information "would constitute a clearly unwarranted invasion of privacy," and the public has "no apparent interest in gaining access to the medical records of individual JRC patients." Defs.' Mem. at 30-31. Alternatively, the defendants assert that the public's interest in disclosure yields to the privacy interest. Id. at 31.Relying on the D.C. Circuit's opinion in AILA , the plaintiffs answer that, at a minimum, the defendants have applied an impermissibly categorical approach to assessing the privacy interests implicated by records containing personally identifying information. Pls.' Opp'n at 33-35. In AILA , the requester had sought from the government records related to conduct of immigration judges. 830 F.3d at 669. The judges' names were redacted from all disclosed records because "[t]he government reasoned that, as a blanket matter, the privacy interest of immigration judges in avoiding disclosure of their names necessarily outweighs the public's interest in learning any of the judges' names." Id. at 670. The Circuit remanded "for a more individualized inquiry," id. , explaining that the government had failed at step two of Exemption 6's tiered review because, in affording each judge the same privacy interest in her name, the government ignored that the "privacy interest at stake may vary depending on the context in which it is asserted," id. at 675 ; see also Bartko v. U.S. Dep't of Justice , 898 F.3d 51, 69 (D.C. Cir. 2018) ("On the privacy side of the balance, Wheeler's interest is substantially diminished. First, the allegations of misconduct during the Bartko trial are already a matter of public record, as is the referral to OPR published in the Fourth Circuit's decision, and the U.S. Attorney's public announcement that it too was referring the allegations of misconduct to OPR."); Am. Oversight , 311 F.Supp.3d at 347 ("GSA's Exemption 6 redactions obscure which of the publicly-named PTT members were referenced in, or included on, certain emails, even though those names are already 'out of the bag' and are no longer subject to a significant, protectable privacy interest."). For the immigration judges, "[g]iven the variety in types of complaints and circumstances of individual immigration judges, not every judge has the same privacy interests at stake and not every complaint would *73equally enlighten the public about 'what their government is up to.' " AILA , 830 F.3d at 675 (quoting Reporters Comm. , 489 U.S. at 773, 109 S.Ct. 1468 ).Sure enough, the plaintiffs have identified ways in which the government's assessment of the competing public and private interests papers over important context for records related to at least five people whose names have been redacted from the produced records. First, several withheld records identify former JRC patients. See, e.g. , 2nd Index at 93-94, 130-31, 132-33; see also, e.g. , 3rd Index at 94-95, 131-32, 133-34. Importantly for the privacy interests at stake, some former JRC patients have been very vocal about their experiences at JRC, including speaking with media outlets, testifying at the April 2014 panel meeting, and posting videos about JRC to YouTube. Pls.' Opp'n at 36; Pls.' SMF ¶¶ 17, 21, 23, 24. Yet, none of the index entries describing documents that identify former patients appreciates that the patients' public comments might diminish their interest in guarding their identity. That context must be considered.Similarly, a fourth individual for whom the defendants have redacted identifying information submitted a consumer complaint to the FDA about JRC's use of the GED and declared an intent to share "this issue with social media such as Facebook to make the public aware of this issue." Pls.' Decl., Ex. 27. Yet, the Vaughn Index entry for this record says no more than that releasing the complainant's name "would constitute a clearly unwarranted invasion of personal privacy." 2nd Index at 1502-04; 3rd Index at 1531-32. Missing from that analysis is any acknowledgment that the complainant expressed an intent to publicize his or her views. While defendants need not scour the internet to determine what public comments an individual identified in a responsive record has made, the government cannot meet its burden under Exemption 6 by ignoring information sitting on the face of the record.Finally, the defendants redacted the name of a former JRC employee who agreed to be interviewed for a piece that ran on CBS. Pls.' Decl., Ex. 30. The JRC employee's name is redacted from an email that references the employee's participation in the CBS story, yet the corresponding index entry does not discuss the individual's privacy interest, let alone account for how the invited publicity might affect that privacy interest. 2nd Index at 827-28; 3rd Index at 845-55. Although the defendants now concede this particular redaction was improper, Defs.' Reply at 34 n.15, the third Vaughn Index does not reflect that the error has been corrected, 3rd Index at 845-55. This information must be disclosed, and the plaintiffs are, consequently, granted partial summary judgment as to this record.Despite failing to take a nuanced approach to the Exemption 6 balancing analysis, the defendants repeat that they have properly applied Exemption 6 because "an individual does not forfeit all privacy interest merely by making some public statements." Defs.' Reply at 34. That response misses the point. The defendants have not met their burden because they have forgone a necessary step in Exemption 6's balancing standard-properly defining the interests on either side of the equation. Redacting the identities of individuals who have publicly associated themselves with the very views that redaction intends to shield, without considering how that welcomed publicity changes the privacy interest, improperly ascribes a uniform privacy interest to one's identity and ignores a fact that minimizes any asserted privacy interest. That tack does not survive AILA . See 830 F.3d at 674-76 ; see also *74Am. Oversight , 311 F.Supp.3d at 347. Nor does it matter that "the privacy interest at stake belongs to the individual, not the agency." Defs.' Reply at 32 (quoting Amuso v. Dep't of Justice , 600 F.Supp.2d 78, 93 (D.D.C. 2009) ). Here, the unaccounted for conduct was taken by the individuals whose privacy is on the line. Factoring that context is consistent with the privacy interest belonging to the individual.The defendants must also take a more nuanced approach to assessing the public's interest in the disclosure of identities. AILA , 830 F.3d at 675 (explaining the public interest in disclosure also "might vary in substantial measure" depending on context). In AILA , the Circuit explained that "the public interest likely would be more pronounced in the case of a sitting immigration judge, who continues to make decisions as an employee of the Department of Justice, than in the case of a former judge." AILA , 830 F.3d at 675 ; see also Bartko , 898 F.3d at 66-67 (explaining for both Exemption 6 and 7(c) that, as to the public's interest in records of investigations into a prosecutor's misconduct, "an unsubstantiated allegation that was dismissed as frivolous might implicate a greater privacy interest or a reduced public interest, while an in-depth investigation that exposed a pattern of abuses across numerous cases would trigger a different balancing of interests"). Applied here, the FDA, for example, included the testimony of "[t]hree individuals formerly on [electrical stimulation devices] at JRC" in the list of sources that the agency relied on in developing the Proposed Ban. See 81 Fed. Reg. at 24,393. The public interest in the identity of those people, given their role in the Proposed Ban, might be stronger than the interest in the identity of another JRC patient. While the Court is sensitive to the defendants' burden, this is what the law requires.To say that the defendants have not conducted the necessary balancing is not to say that the agency will not, eventually, be able to "support redacting identifying information in all cases if its justifications for doing so were framed in a more targeted manner." AILA , 830 F.3d at 676. Indeed, as the defendants explain, the names of individuals who have provided information to the FDA might offer no insight into how the FDA performs it statutory duties. Defs.' Reply at 34. Perhaps the minimal public interest in the release of records will succumb to a properly articulated privacy interest because disclosure of any name risks divulging associated medical information that the individuals themselves have not shared. Id. at 35. The defendants must provide the Court with the information needed to engage in that balancing inquiry. That has not happened.11*75D. SEGREGABILITYAs for the last issue, segregability, FOIA requires that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection." 5 U.S.C. § 552(b). Producing segregable information is an essential ingredient to a sufficient FOIA production, and "[b]efore approving the application of a FOIA exemption, the district court must make specific findings of segregability regarding the documents to be withheld." Sussman v. U.S. Marshals Serv. , 494 F.3d 1106, 1116 (D.C. Cir. 2007). For those findings, "[a]gencies are entitled to a presumption that they complied with the obligation to disclose reasonably segregable material." Id. at 1117. Even with that presumption, "the agency must provide a 'detailed justification' for its non-segregability" but need not "provide so much detail that the exempt material would be effectively disclosed." Johnson v. Exec. Office for U.S. Attorneys , 310 F.3d 771, 776 (D.C. Cir. 2002) (quoting Mead Data Ctr., Inc. v. Dep't of the Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977) ). Affidavits attesting to the agency's "line-by-line review of each document withheld in full" and the agency's determination "that no documents contained releasable information which could be reasonably segregated from the nonreleasable portions," in conjunction with a Vaughn Index describing the withheld record, suffice. Id.The defendants here have provided a sufficiently detailed justification. The defendants have submitted eight affidavits, each certifying to the represented FDA or HHS component's performance of "a careful page-by-page, line-by-line review of all records." Defs.' Mem. at 33 (citing First DFOI Decl. ¶ 40; First NE-DO Decl. ¶ 20; OCC Decl. ¶ 39; DOJ Decl. ¶ 7; Decl. of Eric F. Stein, Department of State ¶ 11, ECF No. 24-8 ; ORA Decl. ¶ 15; HHS Decl. ¶ 15; First Community Living Decl. ¶ 15). The same affidavits confirm that all reasonably segregable information has been disclosed. Id. Corroborating those accounts, the defendants have partially released 1,340 pages of records. Pls.' SMF ¶ 44.12Thus, the Court finds that as to draft records withheld under Exemption 5's deliberative-process privilege, records withheld under Exemption 5's attorney-client privilege, records withheld under Exemption 6 to conceal personal information about low-level JRC employees and the contact information of government employees, and records withheld under Exemption 7(c), the defendants have released all segregable information.Through no fault of either party, this case is onerous. Indeed, the plaintiffs' massive FOIA requests returned over 24,000 *76responsive records, to say nothing of the 60,000 records that CDRH is in the process of producing. Such broad requests are understandable given that the records relate to the agency's regulation, and possible ban, of a treatment practice that the plaintiffs adamantly believe in. Of course, the volume of records is so substantial only because the defendants have been diligently considering the need for regulation for quite some time.Nevertheless, issues relevant to this litigation have not been presented with clarity and neither party is blameless. On the defendants' side, too much has been painted with too broad a brush. While the end, at least for now, of the defendants' regulatory work is the Proposed Ban, the defendants have made an awful lot of intermediary decisions to get from the point at which JRC did not have to obtain 510(k) clearance for the GED to proposing a rule that would ban the GED altogether. In making those decisions, the FDA consulted with many individuals, including former JRC patients. Certainly, as a baseline, all JRC patients have a privacy interest in their medical history, but some individuals can exhibit behaviors reflecting a lesser interest in maintaining that privacy. The plaintiffs have done no better, identifying general problems with the defendants' production but offering only a smattering of examples of those purported problems, which fall short of their obligation under Federal Rule of Civil Procedure 56. See, supra n.5. Consequently, the plaintiffs have provided insufficient precision as to how many records, or which records, the plaintiffs are actually challenging, other than the relatively small number from the voluminous Vaughn indices that are specifically cited in the briefing.Shortcuts, especially with such a large body of records, are tempting, and in this case both parties have taken some. FOIA litigation works best, however, when the defendants are clear about how and why exemptions have been applied and the plaintiffs are clear about where they believe the defendants have gone wrong. Of course, going forward, the remaining issues in this case may be narrowed by the parties conferring about the production, with this Memorandum Opinion providing some guidance. If the parties require another round of summary judgment briefing, they must do better focusing on which withholdings are still contested. To that end, any subsequent Vaughn Index must plainly identify the records in dispute.IV. CONCLUSIONFor the foregoing reasons, the defendants' Motion for Partial Summary Judgment, ECF No. 25, is GRANTED in part and DENIED in part. The defendants are granted partial summary judgment for withholdings under Exemption 5's attorney-client privilege, for withholdings of draft records under Exemption 5's deliberative-process privilege, for withholdings under Exemption 6 that conceal the personal information of low-level JRC employees or the contact information of government employees, and for withholdings under Exemption 7(c). As for the remaining withholdings under Exemption 5's deliberative-process privilege and under Exemption 6, the defendants must supplement their Vaughn Index and/or declarations consistent with this Memorandum Opinion.The plaintiffs' Cross-Motion for Partial Summary Judgment, ECF No. 30, is GRANTED in part and DENIED in part. The plaintiffs are granted summary judgment with respect to the defendants' withholding of non-responsive information. The defendants must produce all such records not otherwise being withheld under one of FOIA's statutory exemptions. The plaintiffs *77also are granted summary judgment as the record identifying the JRC employee who was interviewed by CBS, Bates-stamped JRC OES Supplemental 1 005549-53. The plaintiffs' cross-motion is otherwise denied.The parties are directed to submit, by April 19, 2019, a joint status report as to the progress, if any, the parties have made to narrow the issues in dispute and to propose a schedule to govern further proceedings in this matter. If additional briefing will be required, the parties should provide their views on whether such briefing can be combined with any briefing that may be necessary regarding CDRH's response to the plaintiffs' FOIA requests.An Order consistent with this Memorandum Opinion will be contemporaneously entered.On February 2, 2018, the case was bifurcated. See Min. Order (Feb. 2, 2018). "[E]ach FDA component other than the Center for Devices and Radiological Health ('CDRH')" was put on one production and briefing schedule; CDRH was put on another. Id. The pending motions relate only to the records released by components in the first group.The plaintiffs have requested a hearing, see Pls.' Cross-Mot. at 1, but that request is denied as unnecessary given the voluminous record in this case. LCvR 7(f) (authorizing oral hearings at "the discretion of the Court").The plaintiffs have also challenged the defendants' failure to produce roughly 150 email attachments to records from the New England District Office, Pls.' Reply Supp. Cross-Mot. Summ. J. ("Pls.' Reply") at 20, ECF No. 35, which attachments originated with FDA's CDRH, First NE-DO Decl. ¶ 19. Those attachments have been referred to CDRH to be included in a future production. See Suppl. Decl. of Barbara A. Recupero, New England District Office ¶ 5, ECF No. 33-4. The plaintiffs contend that referral to CDRH is no substitute for releasing the attachments because the New England District Office "remains responsible for producing these attachments." Pls.' Reply at 20. Yet, "agencies that receive FOIA requests and discover responsive documents that were created by another agency may forward, or 'refer,' those requests to the agency that 'originated' the document." Elec. Privacy Info. Ctr. v. Nat'l Sec. Agency , 795 F.Supp.2d 85, 92 (D.D.C. 2011). Referral is proper "when doing so does not constitute an improper withholding of agency records," as would be true if the referral's " 'net effect is to impair the requester's ability to obtain the records or significantly to increase the amount of time he must wait to obtain them.' " Id. at 94 (quoting McGehee v. CIA, 697 F.2d 1095, 1110 (D.C. Cir. 1983), vacated in part on other grounds, 711 F.2d 1076 (D.C. Cir. 1983) ). Here, "the CDRH and any other HHS component to which a referral has been made" are subject to a separate production schedule. Min. Order (Feb. 2, 2018). Allowing CDRH to complete production consistent with the prior scheduling order does not impair the plaintiffs' access to the requested email attachments. Accordingly, the plaintiffs' request that these email attachments be produced outside the Court-ordered schedule applicable to CDRH is denied.Although the plaintiffs' motion for summary judgment challenged the defendants' withholdings under Exemption 5's attorney-client privilege, see Pls.' Opp'n at 29-31, the plaintiffs did not respond to any of the defendants' counter-arguments, see generally Pls.' Reply. Consequently, the plaintiffs have conceded the defendants' arguments. See Philipp v. Fed. Republic of Germany , 248 F.Supp.3d 59, 69 (D.D.C. 2017) (treating argument to which the plaintiff failed to respond as conceded); Cannon v. Wells Fargo Bank, N.A. , 952 F.Supp.2d 1, 11 (D.D.C. 2013) (same); Hopkins v. Women's Div., Gen. Bd. of Glob. Ministries , 284 F.Supp.2d 15, 25 (D.D.C. 2003) (same). In any event, the defendants have sufficiently explained the basis for assertion of the attorney-client privilege, stating that "[r]ecords withheld under attorney-client privilege in this case include communications between FDA staff and agency attorneys within FDA's OCC." Defs.' Mem. P. & A. Supp. Defs.' Mot. Partial Summ. J. at 28, ECF No. 25. Those records reflect confidential communications "seeking and/or providing legal advice" or communications "among agency attorneys within OCC discussing legal advice that they would subsequently provide to agency staff." Id. at 28-29; Defs.' Opp'n at 27-28; see also, e.g. , 3rd Index at 55-56 (describing email as covered under attorney-client privilege because email was sent to agency for legal advice, with agency counsel identified as recipients of the email); 3rd Index at 100-02 (describing email as covered under attorney-client privilege because email was sent between agency counsel in response to client's request for advice); 3rd Index at 344-45 (describing draft of Proposed Ban as covered under attorney-client privilege because draft contained comments with legal advice from agency counsel). Accordingly, the defendants are granted partial summary judgment as to the records withheld under Exemption 5's attorney-client privilege.The plaintiffs claim that "many entries in the Updated Index lack dates," but cite only a single example, see Pls.' Opp'n at 11 (citing 2nd Index at 732-33), leaving to the Court the task of sifting through the extensive Vaughn indices to find evidence of the plaintiffs' point. The plaintiffs are cautioned that, in any future round of summary judgment briefing, they must point to specific entries in the Vaughn indices to sustain any particular challenge to the sufficiency of the defendants' response to their FOIA requests. See Fed. R. Civ. P. 56(c)(3) ("The court need consider only the cited materials, but it may consider other materials in the record."); Fed. R. Civ. P. 56(c)(1)(A) (directing that the "party asserting that a fact ... is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record"). Failure "to properly address another party's assertion of fact as required by Rule 56(c)," may result in any records not specifically challenged to be "undisputed for purposes of the motion." Fed. R. Civ. P. 56(e)(2).Given the volume of withheld records and the length of the defendants' Vaughn Index, for clarity of the analysis in any future summary judgment briefing, records may be sequentially numbered with a unique document number that would make reference simpler and location on the Vaughn Index more readily accessible, than use of only a Bates-stamp number, and will permit the parties and the Court to appreciate the total number of disputed records at issue. For those records withheld under the deliberative-process privilege, the defendants may employ efficient methods of describing the decisions triggering application of Exemption 5. For example, the defendants could submit an affidavit listing all decisions to which the responsive records relate and include in the Vaughn Index a cross-reference to that affidavit or group the records on the Vaughn Index by the specific decisions to which they relate.The plaintiffs also argue that this Power Point is unlikely to be predecisional because the presentation was organized more than a year after the FDA started drafting the Proposed Ban. Pls.' Opp'n at 24. By that logic, in which the relevant decision is the decision to initiate some process, the deliberative process would evaporate. Rather, the decision to which the Power Point contributed is the promulgation of the Proposed Ban, see 2nd Index at 531-33; 3rd Index at 538-40, a process which, at the time of the presentation to the FDA Commissioner, had not been completed.To facilitate review of contested records in any subsequent round of summary judgment briefing, the defendants are directed to indicate in some manner on a subsequent version of the third Vaughn Index, or in a separate index, the specific record entries withheld under Exemption 5's deliberative-process privilege for which the defendants have been granted partial summary judgment.The defendants stress that in Carter v. Department of Commerce , 830 F.2d 388 (D.C. Cir. 1987) and Salas v. Office of the Inspector General , 577 F.Supp.2d 105 (D.D.C. 2008), the plaintiffs bore the burden of establishing a public interest in disclosure more powerful than the countervailing privacy interests. Defs.' Opp'n at 32. Yet, Carter merely held that the requesters had not rebutted the agency's explanation of why disclosing certain identities would infringe a privacy interest that outweighs the public interest in disclosure. 830 F.2d at 391-92 & n.13. While in Salas a judge on this Court placed the burden on the requester "to articulate a public interest sufficient to outweigh an individual's privacy interest" and added that "the public interest must be significant," 577 F.Supp.2d at 112, the support for those propositions came from National Archives and Records Administrative v. Favish , 541 U.S. 157, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004). Favish , however, pertained to Exemption 7, which though narrower in scope than Exemption 6, is more protective of privacy interests than Exemption 6 and establishes a lower bar for withholding information. 541 U.S. at 165-66, 124 S.Ct. 1570. In light of the authority on which Salas relied-as well as the D.C. Circuit's AILA opinion-Salas is not persuasive.The defendants also withheld "the identities of lower-level employees of JRC and contact information of government employees in sensitive occupations," under Exemption 6. Defs.' Mem. at 31. The plaintiffs do not contest these withholdings. Pls.' Opp'n at 32-33 n.18. Thus, the defendants are granted partial summary judgment as to this category of Exemption 6 withholdings. To facilitate review of contested records in any subsequent round of summary judgment briefing, the defendants are directed to indicate in some manner on a subsequent version of the third Vaughn Index, or in a separate index, the specific record entries withheld under Exemption 6 to protect personal information about lower-level employees or contact information of government employees for which the defendants have been granted partial summary judgment.The defendants also withheld some records pursuant to Exemption 7(c). Rather than present any argument as to these withholdings, the plaintiffs simply "reserve their right to advance this argument in the future." Pls.' Opp'n at 16 n.9. Such reservation of argument does not suffice to preserve the objection. Now was the time to challenge the defendants' withholdings and to move this case to resolution. See DeSilva v. U.S. Dep't of Hous. & Urban Dev. , 36 F.Supp.3d 65, 70 (D.D.C. 2014) ("The plaintiff contests neither the applicability of the exemptions nor the defendant's segregability determinations, and the Court thus deems these matters conceded."). Without any specific objection from the plaintiffs to focus the dispute, but upon review of a sampling of the defendants' withholdings under Exemption 7(C), these withheld records appear appropriate. See, e.g. , 2nd Index at 6-8 (justifying Exemption 7(c) withholding of information in a string of DOJ emails as related to personal information about former JRC patient that had been gathered for law enforcement purposes); id. at 28-30 (justifying Exemption 7(c) withholding of information in a string of DOJ emails as related to personal information about former JRC patient who had contacted DOJ); id. at 44-46 (same); see also 3rd Index at 6-8, 28-31, 45-46. Accordingly, the defendants are granted partial summary judgment as to the information withheld under Exemption 7(c). Again, to facilitate review of contested records in any subsequent round of summary judgment briefing, the defendants are directed to indicate in some manner on a subsequent version of the third Vaughn Index, or in a separate index, the specific record entries withheld under Exemption 7(c) for which the defendants have been granted partial summary judgment.Largely, the plaintiffs' segregability arguments are repackaged from their arguments against the application of the deliberative-process privilege. For example, the plaintiffs argue that factual and background information contained within records withheld under the deliberative-process privilege should be released. Pls.' Opp'n at 41-42. Given that the Court is not issuing a ruling on the deliberative-process privilege expect as to draft records, segregability issues as to these withholdings cannot be resolved at this juncture. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1317635/ | 81 Ga. App. 306 (1950)
58 S.E.2d 516
EMPLOYERS INSURANCE COMPANY OF ALABAMA et al.
v.
BASS.
32791.
Court of Appeals of Georgia.
Decided March 9, 1950.
Adhered To On Rehearing March 30, 1950.
C. Baxter Jones, Powell, Goldstein, Frazer & Murphy, for plaintiffs in error.
T. Elton Drake, Fraser & Irwin, contra.
WORRILL, J.
1. "An award made upon review by all the directors of the State Board of Workmen's Compensation, affirming an award by a single director upon issues of fact, is conclusive as to those issues, if there is any evidence to sustain it, and in the absence of fraud, such award cannot be set aside. See Webb v. General Accident Fire &c. Ins. Co., 72 Ga. App. 127 (33 S.E. 2d, 273), and citations." Reeves v. Royal Indemnity Co., 73 Ga. App. 2 (35 S.E. 2d, 473). See also Davis v. American Mutual Liab. Ins. Co., 72 Ga. App. 783 (1) (35 S.E. 2d, 203), and Armour & Co. v. Price, 73 Ga. App. 676 (1) (37 S.E. 2d, 634). Except in plain and indisputable cases the question of whether one is an employee within the meaning of the Workmen's Compensation Act, and whether an injury received by such person was received in the course of the employment, are questions of fact for decision by the board, and a finding in regard to such questions by the board is reviewable by the courts subject to the rules of law just stated.
2. "An injury arises `in the course of employment,' within the meaning of the Workmen's Compensation Act, when it occurs within the period of the employment, at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto." New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682 (118 S.E. 786). "Preparations by the employee at the place of employment, to begin the work for which he is employed, is a part of the duties of the employment." Maryland Casualty Co. v. Sanders, 49 Ga. App. 600 (2) (176 S.E. 104), and citations (reversed by the Supreme Court on other grounds); Williams v. American Mutual Liab. Ins. Co., 72 Ga. App. 205, 206 (33 S.E. 2d, 451).
3. Where the evidence authorized a finding by the director and by the board upon review, that the deceased employee, the 48-year-old husband of the claimant, went to work for the employer as a carpenter on a Friday, and worked on that day in a building which was a part of an extensive apartment house building project of the employer; that the employee, as was the custom, furnished his own carpenter's tools which he kept and carried in a toolbox weighing between 35 and 80 pounds; that on leaving work on that day he carried his tools away from the project with him, though the employer furnished a locked storage box in which he was free to leave his tools overnight; that on the following Monday morning the employee returned to the employer's field office on the project premises to ascertain whether or not they would work that day as it was raining that morning; that the employer's carpenter foreman, at about 7:45 a. m. told the employee to report back to building No. 51 where he had worked the previous Friday, which building was situated some 380 yards from the field office; that the employee picked up his toolbox and walked 300 yards carrying it, set the toolbox down, and fell dead at a place on the employer's premises, but some 80 yards from the location where he had been instructed by the foreman to go to work; that a minute or so thereafter the employer's warning whistle or siren, which customarily sounded at five *307 minutes of eight each morning, was sounded; that the only requirement of the employees by the employer was that the employees be at their place of work ready to go to work at 8 a. m. when the second whistle or siren was sounded, conceding, as does the plaintiff in error, that the employee suffered an accidental injury which would have been compensable if it occurred in the course of the employment, such facts, under the foregoing rules of law, authorized a finding by the director and by the board that the employee died as a result of an accidental injury received in the course of his employment, notwithstanding the fact that he had not reached the exact place where he was to perform the work for which he was hired, and that the time for his beginning his work on that particular day had not arrived, but where he was on the premises of his employer where the work was being performed, and the superior court did not err in affirming the award of compensation.
This case was considered by the whole court as provided by the act approved March 8, 1945 (Ga. Laws, 1945, p. 232).
Judgment affirmed. MacIntyre, P. J., and Gardner and Townsend, JJ., concur. Sutton, C. J., and Felton, J., dissent.
SUTTON, C. J., and FELTON, J., dissenting. Assuming that the claimant's husband was an employee at the time he died, he had not entered upon his labors. His death came about as a result of a purely personal obligation and undertaking, carrying his tools to his job. The fact that the misfortune occurred on the premises of the employer is incidental and irrelevant to the issue. If the employee had obtained permission to go to work by telephone, and had died while carrying his tools to work before he reached the premises, the case would be the same. In this case the injury was not caused by a hazard of the employment or one present on the premises. The carrying of the tools was a personal obligation of the deceased, performed in preparation for work and in our opinion the case does not come within any exception to the rule that injuries occurring while persons are going to and from work are not compensable.
It is well settled that, in order for an accidental injury to be compensable under the Workmen's Compensation Act, it must arise out of and in the course of the employment. An accident arises in the course of the employment within the meaning of the act, when it occurs during the period of the employment, at a place where the employee reasonably may be in the performance of his duty, and while he is performing that duty or engaged in doing something incidental thereto, and an accident arises out of the employment when it arises because of it, as when the employment is a contributing, proximate cause; and these two essentials must concur before the act applies. We think that the uncontradicted evidence in this case demands a finding that the injury for which compensation is sought did not arise out of and in the course of the deceased's employment within the meaning of the Workmen's Compensation Law. See Code, § 114-102; Ocean Accident & Guarantee Corporation v. Farr, 180 Ga. 266, 270 (178 S.E. 728); Georgia Casualty Co. v. Martin, 157 Ga. 909, 915 (122 S.E. 881); Independence Indemnity Co. v. Sprayberry, 171 Ga. 565 (156 S.E. 230); Aetna Casualty & Surety Co. v. Honea, 71 Ga. App. 569 (31 S.E. 2d, 421); Harper v. National Traffic Guard Co., 73 Ga. App. 385 (36 S.E. 2d, 482); *308 Wilcox v. Shepherd Lumber Corporation, 80 Ga. App. 71 (55 S.E. 2d, 382). Also, see Maryland Casualty Co. v. Sanders, 182 Ga. 594 (186 S.E. 693). The facts applicable to this last case are stated in 49 Ga. App. 600 (176 S.E. 104.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2446343/ | 4 A.3d 669 (2010)
COM.
v.
REESER.[17]
No. 1508 MDA 2009.
Superior Court of Pennsylvania.
May 28, 2010.
Affirmed.
NOTES
[17] Petition for reargument denied August 5, 2010. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/876227/ | 554 P.2d 751 (1976)
In the Matter of Robert J. LeDESMA, Petitioner.
No. 13479.
Supreme Court of Montana.
Submitted September 13, 1976.
Decided September 24, 1976.
*752 David J. Patterson and Gregory Todd, Missoula, for appellant.
Robert L. Woodahl, Atty. Gen., Helena, for respondent.
JAMES T. HARRISON, Chief Justice.
This is an original proceeding wherein petitioner seeks post-conviction relief by reason of the following facts:
He is currently serving a 5 year prison sentence at Montana State Prison. On October 16, 1972, he was found guilty of the crime of burglary in the district court of Yellowstone County. He was sentenced to five years in Montana State Prison, but this was suspended on certain conditions, one of them being that he serve nine months in Yellowstone County jail. As a result the petitioner was incarcerated in Yellowstone County jail from August 24, 1972 through May 23, 1973. On April 7, 1975, the suspended sentence was revoked and petitoner was ordered to serve the full five year sentence in Montana State Prison. He was given credit for 54 days of jail time which was computed from the day of his arrest to the day of sentencing. Petitioner seeks credit for the time he spent in Yellowstone County jail as a condition of the suspended sentence.
The question for the Court is whether the legislature, prior to their amendment to section 95-2206, R.C.M. 1947, in 1973, intended that in the event of a revocation of a suspended sentence, "elapsed time" as stated therein excluded "jail time". Or, does section 95-2215, R.C.M. 1947, govern the credit of time spent in jail prior to the revocation? Or did it intend that section 95-2215 only be applicable in situations other than a suspended sentence.
We quote the applicable portions of the two statutes involved.
Section 95-2215, R.C.M. 1947, in part provides:
"95-2215. Credit for incarceration prior to conviction. (a) Any person incarcerated on a bailable offense and against whom a judgment of imprisonment is rendered shall be allowed credit for each day of incarceration prior to or after conviction except that in no case shall the time allowed as a credit exceed the term of the prison sentence rendered."
Section 95-2206, R.C.M. 1947, in relevant part provides:
"95-2206. Sentence. Whenever any person has been found guilty of a crime or offense upon a verdict or plea the court may impose any of the following sentences:
* * * * * *
"(3) Suspend the execution of the sentence up to the maximum sentence allowed for the particular offense. However, if any restrictions or conditions are violated, any elapsed time shall not be a credit against the sentence, unless the court shall otherwise order."
This section speaks specifically to rendering a suspended sentence and gives the sentencing judge the discretion to award or deny credit for "elapsed time". Section 95-2215, R.C.M. 1947, makes it mandatory that credit be given for all days of incarceration prior to or after conviction, when a person is incarcerated on a bailable offense and has a judgment of imprisonment rendered against him.
*753 To determine the legislative intent one must consider that both of these statutes were enacted at the same time. Sec. 1, Ch. 196, L. 1967. In a later 1973 amendment to section 95-2206, the legislature excepted "jail time" from the term "elapsed time" and left section 95-2215 unchanged. A reasonable interpretation of this action is that the legislature intended to clarify the earlier language of section 95-2206 to place the credit of jail time within the mandate of section 95-2215. The Court has held that after this amendment a person is entitled to credit for the time spent in jail prior to a revocation of a suspended sentence. In the Matter of Hanson, Mont., 544 P.2d 816, 33 St.Rep. 70.
This Court has never addressed the question whether section 95-2215 has any effect in the case of a revocation of a suspended sentence, when the petitioner seeks credit only for the time spent in jail prior to the revocation. However, the Court has answered the issue in regard to a revocation of a deferred imposition of sentence. Bovee v. District Court, 162 Mont. 98, 508 P.2d 1056; Maldonado v. Crist, 162 Mont. 240, 510 P.2d 887. In each instance the Court said that section 95-2215 was controlling and that the only issue involved should be whether defendant was incarcerated on a bailable offense within the meaning of that statute. If so, he was entitled to credit for the time spent in jail as a condition of the deferment when the deferment was revoked.
From a practical point of view a suspended sentence and a deferred imposition of sentence are very similar. In each instance the defendant must adhere to certain conditions to avoid a more severe sentence. It seems unlikely that the legislature intended that a person receiving a deferred imposition of sentence be entitled to credit for the time spent in jail as a condition of the deferment if such deferment is revoked, but the person receiving a suspended sentence is not so entitled.
For these reasons the cause is remanded to the sentencing court with directions to make and enter a revised judgment granting defendant credit for his jail time.
It is so ordered.
CASTLES, HASWELL and JOHN C. HARRISON, JJ., concur. | 01-03-2023 | 06-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1317725/ | 81 Ga. App. 185 (1950)
58 S.E.2d 465
ROBERTS et al.
v.
HILL et al.
32764.
Court of Appeals of Georgia.
Decided March 3, 1950.
Rehearing Denied March 17, 1950.
Maddox & Maddox, for plaintiffs.
Wright & Scoggin, for defendants.
WORRILL, J.
1. Where to the petition in the City Court of Floyd County seeking damages for fraud and deceit, the defendant filed what was denominated as a special plea in bar, alleging that one of the plaintiffs had filed his suit in the Superior Court of Floyd County against the defendants, and that a copy of the said suit was attached, that in the said case a verdict for the defendants was directed, that the plaintiff therein appealed that judgment to the Court of Appeals of Georgia, that the judgment of the trial court was affirmed and that the judgment was a final adjudication, that no cause of action exists in favor of the plaintiffs, and where it appears, from the exhibits attached to the plea as amended and from the evidence adduced upon the trial of the plea and from the report of the former case on appeal to this court, that one of the plaintiffs here did in fact prosecute in the superior court a suit for damages for breach of warranty based upon the same facts and circumstances, and that the trial judge there directed a verdict for the defendants, and that upon appeal to this court the judgment was affirmed on the ground that it appeared that "at the time the petition was filed the plaintiff had divested himself of his legal interest" in the subject-matter of the suit by a transfer to a third person (not a party to either proceeding) and because "no eviction of the plaintiff was shown" the trial judge did not err in finding in favor of the plea in bar and in dismissing the petition. See Roberts v. Hill, 78 Ga. App. 264 (50 S.E. 2d, 706).
2. A condition or fact once shown to exist is presumed to continue until a change in such status is shown. Coleman & Burden Co. v. Rice, 105 Ga. 163 (31 S.E. 424); American National Bank v. Lee, 124 Ga. 863, 865 (53 S.E. 268); Tippens v. Lane, 184 Ga. 331 (3) (191 S.E. 134); Sasser v. Byrd, 8 Ga. App. 824 (70 S.E. 157); Griffin v. Miller, 29 Ga. App. 585 (1) (116 S.E. 339); Cook v. Cochran, 42 Ga. App. 478 (2) (156 S.E. 465); and in the absence of special allegations showing that the plaintiffs here had acquired the legal interest in the subject-matter *186 of the suit the petition was subject to attack by special demurrer or plea, and the trial court did not err in sustaining the plea and in dismissing the petition where from the evidence adduced upon the trial and from the official report of the former case before this court it affirmatively appears that the plaintiffs did not have title to or a right in the subject-matter of the suit but that such right or title was in some third person not a party to the case.
3. "A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside." Code, § 110-501. "Parties are all such persons as were directly interested in the subject-matter, had a right to make defense, to adduce testimony, to cross-examine witnesses, to control the proceedings and to appeal from the judgment. Privies are all persons who are represented by the parties and claim under them, all who are in privity with the parties; the term privity denoting mutual or successive relationship to the same rights of property." Smith v. Gettinger, 3 Ga. 140, 142. Furthermore, "When a person has two or more conflicting and inconsistent remedies for the same wrong, his election and actual prosecution of the one to a favorable or an adverse decision is a bar to the others," and "In the case of conflicting and inconsistent remedies, the remedies are not concurrent, and where a choice between them is once made, with knowledge of all the facts, the right to follow the other is forever gone." Stokes v. Wright, 20 Ga. App. 325 (2, 3) (93 S.E. 27). Neither can "The effect of a judgment . . be avoided by a difference in the pleadings, when those in the first case could and should have been as full as those in the second, though in fact they were not. No party, plaintiff or defendant, is permitted to stand his case before the court on some of its legs, and if it falls, set it up again on the rest in a subsequent proceeding, and thus evade the bar of the former judgment. It is the body of the case and not certain of its limbs only, that the final judgment takes hold upon. . . He must discharge all his weapons, and not reserve a part of them for use in a future encounter. He must realize that one defeat will not only terminate the campaign, but end the war." Perry v. McLendon, 62 Ga. 598, 604, 605. Applying these rules of law to the facts in this case, it is clear that the trial court properly sustained the plea and dismissed the petition.
Judgment affirmed. Sutton, C. J., Concurs. Felton, J., concurs in the judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1317730/ | 58 S.E.2d 601 (1950)
WILES
v.
WILES.
No. C. C. 759.
Supreme Court of Appeals of West Virginia.
Submitted January 31, 1950.
Decided March 21, 1950.
*602 Parrack, Snyder & Wehner, Kingwood, Charles V. Wehner, Kingwood, Melvin C. Snyder, Kingwood, for plaintiff.
Thomas W. Lewis, Kingwood, W. P. Samples, Grafton, for defendant.
HAYMOND, Judge.
This suit in equity was instituted by the plaintiff, James H. Wiles, in the Circuit Court of Preston County, to enjoin the defendant, Ashton Wiles, individually and as executor of the will of Walter Wiles, deceased, from making sale, upon real estate possessed by the plaintiff, of several articles of personal property owned by the plaintiff. Some of this personal property is in the possession of the plaintiff on the real estate of which he is possessed and the residue is located on land owned and possessed by the defendant in his own right.
The defendant filed a written demurrer to the bill of complaint. The demurrer, which challenged the equitable jurisdiction of the court on several specified grounds, was overruled and upon the bill of complaint, on August 19, 1949, the court issued an injunction, effective during a period of two weeks from that date, which prohibited the defendant from selling the personal property in question, provided the plaintiff entered into bond with good security in the penalty of one thousand dollars conditioned according to law.
On September 3, 1949, within the period of two weeks, the plaintiff filed an amended bill of complaint. The court overruled the demurrer of the defendant to the amended bill of complaint, which assigned substantially the same grounds set forth in the demurrer to the original bill of complaint, and entered a decree which enjoined the defendant, as executor and individually, from selling the personal property in the possession of the plaintiff, but refused to enjoin him from selling the personal property not in the physical possession of the plaintiff.
Upon the joint application of the parties, the circuit court certified its ruling upon the demurrer to the amended bill of complaint to this Court. The points made upon the foregoing demurrer in substance present the single controlling question whether a court of equity has inherent jurisdiction, in a suit for injunctive relief, to enjoin a trespass and a sale, upon real estate possessed by the plaintiff, of several articles of ordinary personal property owned by the plaintiff, some of which are in his possession on the real estate occupied by him and the residue of which is in the possession of the defendant on real estate owned by him in his own right.
The amended bill of complaint alleges the following material facts which, when well pleaded, must be accepted as true on demurrer.
For many years prior to June 14, 1949, the plaintiff, who is the father of the defendant, lived with another son, Walter Wiles, on a small farm in Preston County, in which the plaintiff has unassigned dower as the husband of his deceased wife who owned it in fee at the time of her death. By virtue of his unassigned dower the plaintiff has the exclusive possession of the manssion *603 house and the curtilage on the land. On June 14, 1949, Walter Wiles died testate and by his will, which appointed Ashton Wiles executor, he bequeathed and devised all his personal property and real estate, except an undivided interest in timber upon a tract of land of about sixty two acres, to his brother, the defendant, Ashton Wiles. On June 15, 1949, Ashton Wiles qualified as executor without security under the will and caused personal property owned by the plaintiff, consisting of seventeen chickens, valued at $17.00, one colt, valued at $75.00, one threshing machine, valued at $100.00, one manure spreader, valued at $50.00, one saw mill boiler, valued at $25.00, and one saw mill, valued at $200.00, to be appraised as property of the estate of Walter Wiles. All these articles of personal property the plaintiff now owns and he now has, and for some time has had, possession of the chickens, the colt, the threshing machine and the manure spreader on the land occupied by him, but the saw mill boiler and the saw mill, though owned by him, are located on the tract of land devised by Walter Wiles to the defendant Ashton Wiles. As soon as the plaintiff learned that his property had been appraised as property belonging to the estate of Walter Wiles, he made protest to the commissioner of accounts to whom the estate had been referred, filed with the commissioner an affidavit asserting his ownership of the property and denying that any of it belonged to the estate, and requested the commissioner to eliminate his property from the appraisement. Despite this action by the plaintiff, the defendant, with full knowledge that the plaintiff owns all the foregoing items of personal property, advertised by means of printed hand bills a public sale of all of them to be conducted on the premises occupied by the plaintiff on the afternoon of August 20, 1949.
In addition to the foregoing facts the amended bill of complaint alleges that the defendant is about to sell the personal property owned by the plaintiff and commit "a trespass" on the land legally occupied by him; that the only means available to the plaintiff to prevent such sale and trespass is physical resistance on his part; that the plaintiff does not desire, and is not physically able, to engage in "physical combat" to prevent a trespass to his land or the sale of his personal property; that the defendant fraudulently caused the appraisement of the personal property of the plaintiff and is fraudulently trying to deprive the plaintiff of such property; that the plaintiff does not have an adequate legal remedy and will suffer irreparable injury and damage unless such sale and trespass are prevented and unless the defendant is compelled to deliver the boiler and the saw mill to the plaintiff.
The prayer of the amended bill of complaint is that the defendant, as executor and in his individual capacity, be enjoined from attempting to make, and making, sale of the designated items of personal property; that the defendant as executor be required to exclude such items from the appraisement; that they be decreed to be the property of the plaintiff; that sale of the property be restrained until its ownership is fully determined; and that the plaintiff be granted general relief.
The plaintiff contends that as no adequate legal remedy is available which will enable him to prevent the defendant from making sale of the personal property owned and possessed by the plaintiff and committing a trespass for that purpose upon the land of which he is lawfully possessed, equity has jurisdiction to enjoin such sale and trespass and, in the exercise of its jurisdiction, to determine his title to all the personal property in question and compel the defendant to deliver to the plaintiff the two articles of personal property now on the land owned by the defendant in his own right.
In support of his contention that he has no adequate legal remedy, the plaintiff points out that he can not maintain an action of detinue against the defendant for the articles of personal property in the physical possession of the plaintiff because those articles are not now, or have not been, in the possession of the defendant. Of course a person in possession of personal property can not maintain detinue to obtain property of which he has possession. It does not follow, however, that, because *604 he can not now institute an action of detinue for the personal property in his possession, the plaintiff has no adequate legal remedy for any injury which he suffers from the alleged expected acts of the defendant if they in fact occur and injury results.
The principal grounds assigned by the defendant in support of his demurrer are: (1) The plaintiff has an adequate legal remedy; (2) no irreparable injury to the plaintiff will result from a sale of his property or a trespass upon the land occupied by him; (3) equity is without jurisdiction to adjudicate title to the property included in the appraisement of the estate of the decedent, Walter Wiles; and (4) Ashton Wiles in his own right is not a proper party to this suit.
From the material allegations of the amended bill of complaint, which on demurrer must be taken as true, it is manifest that the relief sought by the plaintiff in this suit is protection against the proposed sale of his personal property, including the articles now in his possession and the consequent disturbance of that possession as to them, and the prevention of an accompanying trespass upon his land in connection with or as incidental to such sale.
With respect to the sale by the defendant of the personal property, as advertised, the firmly established general rule is that equity will not by injunction prevent an injury to, or a wrongful conversion of, articles of personal property unless there is no adequate remedy at law. In 43 C.J.S., Injunctions, § 71, the rule is stated in this language: "In the absence of special circumstances, injunction will not be granted to protect personal property or to prevent a trespass with reference thereto or a wrongful conversion thereof, since the remedy at law is as a rule adequate. Hence an action ordinarily will not lie to prevent the removal or conversion of personal property where the injury may be fully redressed by an action at law for damages, and, more particularly, where the taking may also be punished as a crime." To the same effect is this quotation from 32 C.J. 120: "As a general rule equity will not interfere to prevent an injury to, or a sale of, personal property, for the reason that an action at law for damages usually is an adequate remedy; but for the purpose of protecting specific chattels of such peculiar value that they cannot be the subject of adequate compensation by way of damages, injunctions may be granted." In 28 Am.Jur., Injunctions, Paragraph 140, with respect to trespasses to personal property, the text is: "The principles governing the right to injunctive relief against trespasses are fully operative in cases where injunction is sought to restrain a trespass upon personal property. Here, as in other cases, the important inquiry is as to the existence and adequacy of a legal remedy. That is, a trespass upon personal property constituting an irreparable injury for which a court of law can furnish no remedy by damages or otherwise which will adequately and fully compensate the injured party for the wrong done may be enjoined. Instances of the issuing of injunction against such trespasses are necessarily very rare, and seem to be confined to cases where the property trespassed upon or taken has some peculiar intrinsic value to the owner that can not be compensated in money. If full compensation for the injury can be had by an action at law or otherwise, injunction to restrain the trespass will ordinarily be refused."
In Pardee v. Camden Lumber Company, 70 W.Va. 68, 73 S.E. 82, 84, 43 L.R.A.,N.S., 262, in which this Court held that equity has jurisdiction to enjoin the destruction of growing timber as an injury to the land on which it stood for which there was no adequate legal remedy and that to obtain an injunction to prevent a trespass of that character it is not necessary to allege the insolvency of the trespasser, Judge Poffenbarger discusses the remedies available with respect to the injury to or the loss of various types of property. In the opinion these statements appear: "On the theory of adequacy of the legal remedy an injunction to prevent the sale or destruction of certain kinds of personal property will be refused, but the principles upon which this conclusion stand cannot be extended to all forms of property either real or personal, and the courts do not attempt *605 so to extend it. Compensation in damages is adequate in all those instances in which the property is injured or destroyed may be substantially replaced with the money recovered as its value. For instance, the world is full of horses, cattle, sheep, hogs, lumber, and many other articles. Ordinarily, one of these may be replaced by another just as good. * * * If personal property possesses a value peculiar to its owner, or, as it is generally expressed, has a pretium affectionis, equity will vindicate and uphold the right to the possession thereof and immunity from injury by the exercise of its extraordinary powers. We observe, also, that the law gives a remedy for the possession of personal property, however trivial its value or character may be. It does not limit the owner to a claim for damages, unless the property has gone beyond the reach of its process. * * * Therefore, if a man threatens to take away or kill his neighbor's horse, a court of equity will not interfere by injunction, because the owner may recover the value of that horse and buy another in the general market of substantially the same kind or value. For the same reason, it refuses to enforce specific performance of a contract of sale of a horse. But, if a man is about to destroy his neighbor's heirlooms, things having a peculiar value and insusceptible of replacement by purchase in the market, the legal remedy is not adequate, and a court of equity will, therefore, protect the possession and title of the owner by the exercise of its extraordinary powers." Under the rule that equity will not interfere to prevent injury to personal property unless it has some peculiar value for which damages will not compensate, the wrongful transfer of corporate stock of a specified value will not be enjoined where the defendant is pecuniarily responsible and there is no indication that a judgment for money is inadequate, even though the stock can not be replevied because of the nonresidence of the holder. Sission v. Barnum, 134 A.D. 53, 118 N.Y.S. 664.
It is clear that the claim of the plaintiff to equitable relief by injunction to prevent the advertised sale of his personal property must be tested by the foregoing principles and their proper application to the facts alleged in the amended bill of complaint. If the defendant enters upon the land occupied by the plaintiff and attempts to sell his personal property by transferring physical possession to himself or to any purchaser, independently of any trespass upon the land, the act of any person in taking possession of the personal property of the plaintiff would constitute a wrongful conversion of his property; and if any of the wrongdoers should injure, or destroy, or take possession of the property or any part of it, an adequate legal remedy would instantly become available to the plaintiff. In that situation, an action for damages would accrue to compensate him for the injury to or the loss of the property and an action of detinue would also lie to recover the possession or the value of the property as damages. As to the two articles of personal property now located on land owned by the defendant in his own right, the plaintiff has an adequate legal remedy by an action of detinue to recover them or damages in the amount of their value, or by an action for damages for any injury to them or for their loss or destruction. The remedy at law, available to the plaintiff, which affords direct and just pecuniary compensation in damages for the injury incurred and costs, constitutes "what the law books call an adequate and complete remedy". See the opinion of Judge Green in Baker v. Rinehard, 11 W.Va. 238. Adequate and complete remedy at law does not, of course, cover such collateral or consequential "damages" as mental suffering, loss of time devoted to litigation, or counsel fees; but neither does adequate and complete remedy in equity extend to these items, except in instances for which special provision is made for counsel fees. Except in the situation mentioned by Judge Green, "the remedy, whether legal or equitable, is never commensurate with the injury. To say so would be to attribute to legal or equitable relief a degree of perfection, which it is very far from possessing." Baker v. Rinehard, 11 W.Va. 238.
In relation to the sale of any or all of the personal property of the plaintiff *606 and the trespass for that purpose upon the land in his possession, the amended bill of complaint alleges no facts to show that either or both of these acts of the trespasser would give rise to a multiplicity of suits. It does not contain any allegation that the defendant or the estate of Walter Wiles is insolvent. On the contrary its averments show that the estate consists of both personal property and real estate and that the defendant in his own right, as a beneficiary under the will, is the owner of a tract of land of about sixty two acres, except an undivided interest in the timber on it. These averments indicate that both the estate and the defendant are entirely solvent. The amended bill of complaint does not allege any facts which show that irreparable injury will result from the anticipated sale or trespass on the land. Though it states that the plaintiff will suffer irreparable injury, this statement is a mere conclusion not supported, but instead disproved, by other facts alleged which show that no such injury will or can occur. A bill of complaint seeking equitable relief on the ground of irreparable injury must set forth the facts which constitute such injury; and a mere general allegation of irreparable injury is not sufficient. Becker v. McGraw, 48 W.Va. 539, 37 S.E. 532; Schoonover v. Bright, 24 W.Va. 698. Irreparable injury, with respect to property, has been said to be an injury which "is not susceptible of remediable damages.", Mullens Realty and Insurance Company v. Klein, 85 W.Va. 712, 102 S.E. 677, 679, or which is "incapable of measurement by any ordinarily accurate standard," Kramer v. Slattery, 260 Pa. 234, 103 A. 610, 612. The allegations of the amended bill of complaint relate to and describe articles of personal property which have no special or peculiar value to the plaintiff, and state the specific monetary value of each article. In consequence the plaintiff, upon the facts alleged, can not invoke or rely on the well recognized jurisdiction of equity to protect by injunction the possession and the title of the owner of personal property which is of special or peculiar value to him or which can not be replaced by other articles of the same type and value.
The allegations of the amended bill of complaint do not set forth any ground of equitable relief against a mere trespass by the defendant upon the land occupied by the plaintiff for the purpose of making the sale of his personal property. The foundation of the jurisdiction in equity to enjoin trespass to real estate is the probability of irreparable injury, the inadequacy of pecuniary compensation, and the prevention of a multiplicity of suits, and if the facts shown do not bring the case within the foregoing conditions, relief in equity will be denied. 1 High on Injunctions, 4th Edition, Paragraph 697. "A fundamental doctrine underlying the entire jurisdiction of equity by injunction against the commission of trespass is, that where adequate relief may be had in the usual course of procedure at law, equity will not interpose by the extraordinary remedy of injunction." 1 High on Injunctions, 4th Edition, Paragraph 699. "To warrant the interference of a court of equity to restrain a trespass on land, two conditions must co-exist: First, the plaintiff's title must be undisputed, or established by legal adjudication; and, secondly, the injury complained of must be irreparable in its nature, unless there exist other grounds of equity." Syllabus 2, Becker v. McGraw, 48 W.Va. 539, 37 S.E. 532; Lazzell v. Garlow, 44 W.Va. 466, 30 S.E. 171; Schoonover v. Bright, 24 W.Va. 698; Cox v. Douglass, 20 W.Va. 175; McMillan v. Ferrell, 7 W.Va. 223.
The general rule is that a mere trespass to real estate will not be enjoined when the injury is not destructive of the substance of the inheritance or is not irreparable but is susceptible of complete pecuniary compensation and for which the injured person has an adequate legal remedy. Lazzell v. Garlow, 44 W.Va. 466, 30 S.E. 171. In the leading case of Kramer v. Slattery, 260 Pa. 234, 103 A. 610, the plaintiff averred in his bill of complaint that he was the owner, in possession, of land upon which was located "a certain coal dirt or culm bank" which he owned; that the defendant had unlawfully entered upon the premises and removed the coal dirt or culm, without permission, after notice *607 refused to stop removing it, and threatened to continue to trespass upon the land and to remove the coal dirt or culm deposited upon it; and that the defendant, if permitted, would continue to remove the coal dirt or culm to the injury of the plaintiff. The plaintiff prayed that the defendant be restrained from entering upon the premises and from removing the coal dirt or culm. One of the grounds of demurrer to the bill of complaint was that it failed to show that the plaintiff was without an adequate remedy at law. The trial court sustained the demurrer and dismissed the suit. Upon appeal, the Supreme Court of Pennsylvania sustained the action of the trial court in holding that equity did not have jurisdiction of the case but reversed the judgment of dismissal and remanded the proceeding to the trial court, with directions to certify it to the law side of the court. With respect to some of the points decided, the Court held, in head note 1, that "Equity has no jurisdiction to restrain the commission of a mere, ordinary or naked trespass but may enjoin a continued or continuing trespass", and in head note 6, that "An injunction will be granted to restrain the commission of trespass upon real estate only where the facts relied upon plainly indicate a state of affairs which in all probability would give rise to interminable litigation if prompt equitable relief were not granted; or show either torts inherently of a permanent character or circumstances strongly suggesting that the wrongs complained of would, in all probability, be repeated so continuously that, by reason of their persistency, they would in effect be permanent in nature and so harassing as to amount to a harmful nuisance, so that the injury from the continuance of such acts would be irreparable." The Court did not consider the acts charged against the defendant in that case as a continuing trespass or that the resultant damage constituted irreparable injury, but held that such acts were only "a mere, ordinary or naked trespass" as to which the plaintiff had an adequate remedy at law.
Equity has jurisdiction to afford injunctive relief when a trespass on land is repeated and continuous and, if continued, will result in the destruction of the substance of the estate. And where acts of trespass are constantly recurring and the resultant injury from each separate act is trifling and the damages recoverable for each act would be very small in comparison with the expense necessary in the prosecution of separate actions at law, relief in equity will be granted because of the inadequacy of the legal remedy. 1 High on Injunctions, 4th Edition, Paragraph 702a; Bent v. Barnes, 72 W.Va. 161, 78 S.E. 374. "The principal reason assigned as a basis for an injunction against continuous trespasses is that the remedy at law for damages is inadequate." 32 C.J. 140. See, also, 43 C.J.S., Injunctions, § 64. From the allegations of the amended bill of complaint, however, it is obvious that any trespass committed by the defendant upon the land for the purpose of selling the personal property of the plaintiff would not be continuing or recurrent or result in irreparable injury. In all probability, the prospective purchasers or persons entering upon the premises with him would be few in number in view of the small amount of property subject to sale. It is not likely, for the same reason, that there would be any continuance of the sale or that any subsequent additional entry would occur for that or any other purpose. Any entry by the defendant and other persons with him would most probably be simultaneous and limited to a single occasion, and would constitute "a mere, ordinary or naked trespass" which equity is without jurisdiction to enjoin and for which the plaintiff has an adequate remedy at law to recover compensation for any resultant injury.
The case of Dunn v. Baxter, 30 W.Va. 672, 5 S.E. 214, though not exactly in point, is of interest with respect to the attitude of this Court in denying jurisdiction of a court of equity to restrain a sale of personal property. In that case the plaintiff, who claimed to own a small shop, occupied by her husband, a judgment debtor, obtained an injunction to prevent the sale of the shop under an execution. From the evidence it appeared to be doubtful whether *608 the shop because of the character of its construction was personal property or real estate, and that, whatever its nature, neither it nor the land on which it was located, was owned by the plaintiff, but that it was owned, paid for and possessed by her husband, the execution debtor. This Court reversed the decree of the circuit court, dissolved the injunction and dismissed the suit. In the syllabus this Court held: "An injunction will not lie in this State to restrain the sale of real estate under an execution issued for a private debt. Nor will it lie to restrain the sale of personal property which is owned by a third party, and not the execution debtor, unless it is shown that irreparable damages will result therefrom." In the opinion Judge Snyder, speaking for this Court, said: "Neither according to the law nor the facts, was the plaintiff entitled to any relief. If the shop was a part of the realty of the plaintiff, as alleged in the bill, then a sale of it could not affect the title of the plaintiff in any manner. It would not even cast a cloud upon her title, because a sale, or attempted sale, of real estate, under an execution for a private debt, in this State, is an absolute nullity, and would confer upon the purchaser no right or title whatever. * * * But if the bill could be construed to be a proceeding to restrain the sale of personal property for the debt of a third person, it could not be maintained. Baker v. Rinehard, 11 W.Va. 238; White v. Stender, 24 W.Va. 615 [49 Am.Rep. 283]." It would seem that the plaintiff in the Dunn case, as a claimant to personal property about to be sold under the levy of an execution, had an adequate statutory remedy at law, but that question was not developed or passed upon in the case.
It is significant, as indicative of the lack of jurisdiction in equity to restrain a sale of personal property which possesses no peculiar value to its owner, that no reported case has been cited by counsel, or found by this Court after diligent search, in which acts of the character alleged in the amended bill of complaint in this suit have been prevented by a court of equity in the exercise of its power to award injunctive relief.
As the amended bill of complaint does not set forth any ground of equitable jurisdiction, the demurrer of the defendant, for that reason, should have been sustained. In consequence, it is unnecessary to consider or discuss the third and fourth grounds assigned by the defendant in support of the demurrer.
The ruling of the circuit court upon the demurrer is reversed.
Ruling reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1317819/ | 81 Ga. App. 93 (1950)
58 S.E.2d 193
INGRAM & LeGRAND LUMBER CO. INC.
v.
BUNN.
32683.
Court of Appeals of Georgia.
Decided February 28, 1950.
*96 Williams & Freeman, for plaintiff in error.
W. B. Mitchell, contra.
MacINTYRE, P. J.
(After stating the foregoing facts.) 1. The contract attached to and made a part of the petition contained the following provision: "The right to go upon said lands with men, teams, wagons and other vehicles for the purpose of cutting, logging and sawing the timber and to remove therefrom the lumber sawed and all other sawmill privileges usually given and not hereinbefore mentioned, provided that no damage shall be done to growing crops or fences upon the lands in the exercise of the aforesaid rights and privileges, without just compensation therefor." (Italics ours.) Obviously the plaintiff misconceived the meaning of the words "growing crops." He evidently relied upon the words to include crops of growing timber, and in furtherance of his supposed cause of action proceeded to allege that his crops of growing timber had been damaged by the defendant through his servants, agents and employees, and that the defendant had violated the contract by not making just compensation therefor. It will be observed however, that the words "growing crops" are used in a sentence which indicates an intention to vest in the grantee in the timberlease contract the right to go upon the lands for the purpose of cutting the timber, and to place upon the grantee an obligation not to damage the crops or fences upon the lands without just compensation being paid. Clearly such a provision in a timber lease has for its object the protection of less robust "crops" than timber, and properly construed has reference to the fruits of vines, bushes or trees. The context does not extend but rather limits the meaning of the word "crops" and excludes trees, plants and shrubs. As was said in Adcock v. Berry, 194 Ga. 243 (2-b) (21 S.E. 2d, 605), "The word "crops" includes and embraces the fruits and products of all plants, trees and shrubs.' Code, § 85-1902; Ga. L. 1933, p. 128. Properly construed, this law as codified from the act of 1933 does not affect the `plants, trees, and shrubs' themselves, but applies only to fruit and products in the nature of fruit derived from such plants, trees and shrubs." It is manifest that the defendant is not shown to have damaged any such "crops" as were contemplated under the timber-lease contract, and since the original petition was undoubtedly *97 brought to obtain damages for breach of contract no cause of action was set forth. The court erred in overruling the motion to dismiss.
2. Thereafter the plaintiff apparently reached the conclusion that he was not justified in denominating his growing timber as crops, and insisting that the clause he invoked was applicable to such timber. Accordingly, he struck the word "crops" wherever it appeared in the petition, and consistently struck by amendment the quoted contract provision. He thus affirmatively put behind him any idea of recovery for breach of contract and undertook to proceed as for a tort. This can not be done. "An action based upon a claim ex contractu can not by amendment be converted into an action ex delicto." Hartley v. Folds, 24 Ga. App. 456 (3) (101 S.E. 130); Watson v. Atlanta Gas Light Co., 46 Ga. App. 326 (167 S.E. 718). See also Glover-White Mercantile Co. v. Ausburn, 25 Ga. App. 780 (104 S.E. 927). The court erred in allowing the amendment over the objection that it sought to convert the original action into a tort action for damage to timber, and all proceedings thereafter were nugatory.
Judgment reversed. Gardner and Townsend, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2565561/ | 4 N.Y.3d 831 (2005)
PEOPLE v. GONZALEZ (RICHARD)
Court of Appeals of the State of New York.
March 30, 2005.
Application in criminal case for leave to appeal denied. (Read, J.). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1726673/ | 970 So.2d 843 (2007)
VAZQUEZ
v.
STATE.
No. 4D07-4140.
District Court of Appeal of Florida, Fourth District.
January 11, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318367/ | 179 Ga. App. 276 (1986)
346 S.E.2d 91
WHITE
v.
THE STATE.
71765.
Court of Appeals of Georgia.
Decided June 3, 1986.
William White, pro se.
Sam B. Sibley, Jr., District Attorney, George Guest, Assistant District Attorney, for appellee.
BEASLEY, Judge.
Defendant was indicted for murder (OCGA § 16-5-1) but was convicted by a jury of voluntary manslaughter (OCGA § 16-5-2 (a)). His amended motion for new trial was denied.
Although defendant was originally represented on appeal by counsel, upon the insistence of defendant, counsel was permitted to withdraw from representation and to withdraw the appellate brief he had filed. Proceeding pro se, defendant then filed, with this court's permission, additional enumerations of error and brief. We now address only those enumerations asserted by former counsel and/or defendant which are supported by citation of authority or argued in defendant's pro se brief; those enumerations filed by former counsel which were not subsequently supported by defendant are abandoned. Court of Appeals Rule 15 (c) (2).
1. Defendant first enumerates error on the general grounds, contending he acted solely in self-defense.
The record reflects that the victim, armed with a .38 caliber gun beside his leg, walked into the bar where defendant was seated, came within a couple of feet of defendant, and said, "Hold it, don't move." Defendant jumped off the bar stool and pulled out a .32 caliber gun from his pocket, and both parties began firing. A state witness who observed the shooting testified that he could not tell who fired first but that the victim fell face-down and defendant, who had also been shot, walked over to the victim, called him various names, and picked up the victim's gun and fired two to three shots into the victim's back. A pathologist testified that the victim had been shot four times, once to the head and three times to the back. He stated that death resulted from two of the back wounds. Defendant testified that the victim approached him with a gun "leveled" at him. He stated that he remembered thinking the victim was going to kill him and then recalled being shot in the chest. He testified that he remembered nothing after this.
"A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances *277 which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. . . ." OCGA § 16-5-2 (a).
OCGA § 16-3-21 provides that a person is justified, and thus has a defense to prosecution under OCGA § 16-3-20, "in using force [against another] which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself. . . (b) A person is not justified in using force. . . if he: . . . (3) Was the aggressor or was engaged in a combat by agreement. . . ."
"`The evidentiary circumstances necessary to show voluntary manslaughter, as opposed to circumstances showing the homicide was justified, relate to a situation which arouses sudden passion in the person killing so that, rather than defending himself, he wilfully kills the attacker, albeit without malice aforethought, when it was not necessary for him to do so in order to protect himself.' [Cit.]" Peacock v. State, 154 Ga. App. 201, 202 (1) (267 SE2d 807) (1980). "If, upon a sudden quarrel, the parties agree to a fight,. . . and one of them is killed, such killing is voluntary manslaughter, no matter who strikes the first blow. [Cit.] A mutual intention to fight need not be proved directly, but may be inferred by the jury from the conduct of the parties. [Cit.] `Being suddenly aroused by anger, and mutually intending to fight, the law of mutual combat is involved. Such combat sufficiently appears where it is shown that there was a mutual intent by the accused and deceased to fight, and one or more shots were fired. It makes no difference who fires the first shot, nor is it necessary that both parties shoot.' [Cits.]" Strickland v. State, 137 Ga. App. 419, 421-422 (1) (224 SE2d 87) (1976).
Viewing the evidence in alight most favorable to the verdict, we conclude that a rational trier of fact could find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979). The evidence was sufficient for the jury to find that defendant's actions were "the result of a sudden, violent and irresistible passion resulting from serious provocation" and that his use of force was not justified because he was engaged in mutual combat.
2. Defendant next asserts that the trial court erred in overruling his motion for directed verdict of acquittal on the murder charge. However, even if the ruling was erroneous, it was harmless: "If the motion had been granted, a prosecution for voluntary manslaughter would nonetheless have been permissible, and appellant was convicted only of the lesser offense of voluntary manslaughter." Lord v. State, 173 Ga. App. 419, 421 (4) (326 SE2d 794) (1985).
3. Defendant contends he received ineffective assistance of counsel *278 at trial. This claim was not raised in the trial court, and we therefore decline to address its merits at this time. Elliott v. State, 253 Ga. 417, 420 (2b) (320 SE2d 361) (1984).
4. Defendant last enumerates that the court's instruction on malice was impressibly burden-shifting.
We need not determine whether the challenged instruction was erroneous, "[f]or, `Where one is charged with murder, in which malice must exist either express or implied. . . but is convicted of a lower grade of that offense, to wit voluntary manslaughter, in which malice is not an element, . . . an erroneous charge on the question of malice is prima facie harmless to the accused and a new trial will not be granted therefore unless it is plainly shown that the erroneous charge wrongfully led to or influenced the verdict rendered.' [Cits.]" Bennett v. State, 122 Ga. App. 604, 606 (178 SE2d 300) (1970). Such a showing was not made here.
Judgment affirmed. Deen, P. J., and Benham, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318380/ | 179 Ga. App. 428 (1986)
346 S.E.2d 586
WILHITE et al.
v.
TRIPP et al.
71915.
Court of Appeals of Georgia.
Decided June 20, 1986.
Truett Smith, for appellants.
William Bushnell, Ellisa Garrett, for appellees.
BENHAM, Judge.
Appellants, husband and wife, brought suit against Tripp and his employer for injuries suffered by Mr. Wilhite when a truck he was driving collided with the back of a tractor-trailer driven by Tripp and *429 owned by his employer. In this appeal from a judgment for appellees entered on a jury verdict, appellants enumerate as error two aspects of the trial court's instructions to the jury, the entry of judgment on the verdict, and the denial of their motion for new trial. We affirm.
1. In appellants' first enumeration of error, they contend that the trial court erred in instructing the jury on the principle of legal accident.
"The defense of accident in this state is to be confined to its strict sense as an occurrence which takes place in the absence of negligence and for which no one would be liable. Unless there is evidence authorizing a finding that the occurrence was an `accident' as thus defined, a charge on that defense is error. [Cits.]" Chadwick v. Miller, 169 Ga. App. 338, 344 (312 SE2d 835) (1983).
Although the evidence in this case would have authorized the jury to find that the collision resulted from the negligence of appellee, appellant, or a State patrolman whose car was parked at the edge of the road, there was also an alternative explanation for the collision which did not involve negligence on the part of anyone. The jury was authorized from the evidence to find that Trooper Hunt of the State Patrol stopped a speeding car and, in accordance with State Patrol guidelines, stopped his car behind and slightly to the left of the car he had pulled over, leaving his car protruding eight to ten inches into the roadway. Tripp approached from the same direction, pulling a load of steel rods on a "stretch" trailer. Seeing the State Patrol car on the edge of the road with its lights flashing, Tripp slowed to be sure he could pass safely. When he saw an oncoming vehicle, Tripp stopped because the length of his trailer would have required him to pull into the other lane farther than would be safe with another vehicle approaching. Wilhite came over a hill behind Tripp and, although he was driving within the legal limit, was unable to stop his heavily loaded dump truck before it collided with the back of Tripp's trailer. There was also opinion testimony which would have authorized the jury to find that an unexplained failure of the brakes on the truck appellant was driving contributed to the collision.
Under the peculiar circumstances of this case, the jury could have found that it was not foreseeable to Trooper Hunt that stopping his car as he did, in accordance with State Patrol guidelines, would cause such a collision; that it was not foreseeable to appellee Tripp that stopping his truck as he did to prevent a collision with oncoming traffic would cause a rear-end collision; and that it was unforeseeable to appellant, cresting a hill within the legal speed limit, he would be confronted with a truck blocking his lane, oncoming traffic in the other lane, and two cars blocking the shoulder on his side of the road at the same time that the truck he was driving experienced an unexplained brake insufficiency.
*430 "Where the jury is authorized under the alternatives submitted by the evidence to find that the collision was not proximately caused by negligence but could have resulted from an unforeseen or unexplained cause, there is ample reason to give a charge on the law of accident. [Cit.]" Reed v. Heffernan, 171 Ga. App. 83 (2) (318 SE2d 700) (1984). See also Kent v. Henson, 174 Ga. App. 400 (2) (330 SE2d 126) (1985). Compare Durden v. Collins, 169 Ga. App. 347 (4) (312 SE2d 842) (1983). There being, as noted above, such an alternative under the evidence in this case, there was no error in instructing the jury on the principle of legal accident.
2. Appellants' second enumeration of error is that the trial court erroneously stressed proximate cause in its instructions to the jury. Their contention that the trial court's charge was repetitious is not borne out by the record. The trial court did not charge the jury on proximate cause, as appellants contend, four separate times; proximate cause was mentioned four times in the context of charges on the plaintiff's burden of proof, failure of a plaintiff to exercise ordinary care for his own safety, comparative negligence, and contributory negligence. Since, as to each of those principles, the element of proximate causation is essential, and each of those principles was an appropriate subject for instruction under the evidence in this case, the four mentions of proximate cause was not unduly repetitious. See generally Whitmire v. Woodbury, 154 Ga. App. 159 (3) (267 SE2d 783) (1980), modified on other grounds, Woodbury v. Whitmire, 246 Ga. 349 (271 SE2d 491) (1980).
3. Since appellant's third and fourth enumerations of error depend expressly on the first two, and we have found no merit in those, the third and fourth enumerations of error present no cause for reversal.
Judgment affirmed. Deen, P. J., and Beasley, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318368/ | 44 Wash. App. 724 (1986)
723 P.2d 28
THE STATE OF WASHINGTON, Respondent,
v.
CINDI LU BOYCE, Appellant.
No. 15230-1-I.
The Court of Appeals of Washington, Division One.
August 4, 1986.
*725 Dori Jones of Washington Appellate Defender Association, for appellant.
Seth R. Dawson, Prosecuting Attorney, and Michael D. Magee and Seth Aaron Fine, Deputies, for respondent.
COLEMAN, J.
Cindi Lu Boyce appeals her conviction for possession of a controlled substance with intent to manufacture or deliver. We affirm.
On July 15, 1983, an informant advised detectives of the Everett Police Department Narcotics Unit that Boyce was distributing and selling heroin in Everett. The informant also told the police that Boyce kept her main supply of heroin in a safety deposit box in a bank in Everett.
The Everett police verified several facts provided by the informant and began a surveillance of Boyce and her alleged distributor. On July 22, 1983, a detective made contact with several banks in the Everett area and determined that Boyce had a safety deposit box at Olympic Bank. Later that day, a detective entered the vault area at Olympic Bank along with narcotics detection dog Sammy.[1] Sammy "alerted"[2] to box 19, which was Boyce's box. Based on the surveillance, the informant's tip, and the canine sniff, the police obtained a warrant to search Boyce's safety deposit box. Heroin was found in the box.
Boyce moved to suppress evidence seized as a result of the search of the safety deposit box. She argued, inter alia, *726 that the canine sniff was an unreasonable search in the absence of a warrant. The court denied the motion to suppress, and Boyce was convicted on stipulated evidence.
On appeal, Boyce raises a single issue. She contends that the canine sniff of her safety deposit box without a warrant violated article 1, section 7 of the Washington Constitution.
As Boyce concedes, this issue has already been settled under Fourth Amendment analysis. In United States v. Place, 462 U.S. 696, 77 L. Ed. 2d 110, 103 S. Ct. 2637 (1983), the United States Supreme Court stated that a canine sniff is not a search within the meaning of the Fourth Amendment. After holding that a traveler's luggage could be detained on the basis of reasonable, articulable suspicion that the luggage contains contraband or evidence of a crime, the Court stated that exposing the detained luggage to a narcotics detection dog was not a search. The canine sniff, the Court said,
does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.
United States v. Place, at 707.
In United States v. Jacobsen, 466 U.S. 109, 80 L. Ed. 2d 85, 104 S. Ct. 1652 (1984), the Court reaffirmed its Place analysis. In Jacobsen, the Court analyzed whether a chemical field test was a search under the Fourth Amendment. Analogizing to a canine sniff, the Court held that a chemical test that merely discloses whether or not a substance is *727 cocaine does not compromise any legitimate interest in privacy.
Congress has decided and there is no question about its power to do so to treat the interest in "privately" possessing cocaine as illegitimate; thus governmental conduct that can reveal whether a substance is cocaine, and no other arguably "private" fact, compromises no legitimate privacy interest.
(Footnote omitted.) United States v. Jacobsen, at 123.
Since the decision in Place, state courts have applied the Supreme Court's holding in a variety of factual contexts. See, e.g., Cardwell v. State, 482 So. 2d 512 (Fla. Dist. Ct. App. 1986) (canine sniff of vehicles at roadblock not a search); People v. Salih, 173 Cal. App. 3d 1009, 219 Cal. Rptr. 603 (1985) (canine sniff of mailed parcel not a search); Strout v. State, 688 S.W.2d 188 (Tex. Ct. App. 1985) (canine sniff of safety deposit box not a search).
Several states have considered whether a canine sniff is a search under their state constitutions. See People v. Unruh, 713 P.2d 370 (Colo. 1986) (canine sniff of locked safe was search under Colorado Constitution requiring reasonable suspicion); State v. Kosta, 75 Or. App. 713, 708 P.2d 365 (1985), review allowed, 300 Or. 545, 715 P.2d 92 (1986) (court specifically reserves question of whether canine sniff is a search under Oregon Constitution; court decides that even if it was a search, it was reasonable); Pooley v. State, 705 P.2d 1293 (Alaska Ct. App. 1985) (canine sniff of luggage was search under Alaska Constitution requiring reasonable suspicion); State v. Snitkin, ___ Hawaii ___, 681 P.2d 980 (1984) (canine sniff of package in cargo holding room not a search under Hawaii Constitution; however, court must still determine reasonableness of dog's use in particular circumstances). When courts do characterize the sniff as a search, they usually analogize the minimally intrusive nature of the search to the "stop and frisk" situation in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), requiring a reasonable suspicion in order *728 to carry out the search.[3]
Boyce argues that article 1, section 7 of the Washington Constitution, which states that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law", provides greater protection for individual rights in this situation. Our Supreme Court recently set out a framework for determining when it is appropriate to resort to independent state constitutional grounds to decide a case rather than deferring to comparable provisions of the United States Constitution. In State v. Gunwall, 106 Wash. 2d 54, 720 P.2d 808 (1986), the court set forth six nonexclusive criteria as relevant in determining whether, in a given situation, the Washington State Constitution extends broader rights to its citizens than the United States Constitution: (1) the textual language of the state constitution, (2) significant differences in the texts of parallel provisions of the federal and state constitutions, (3) state constitutional and common law history, (4) preexisting state law, (5) differences in structure between the federal and state constitutions, and (6) matters of particular state interest or local concern. Gunwall, at 59.
[1] In this case, we address the same state and federal constitutional provisions that were at issue in Gunwall. Thus, our analysis tracks the analysis of the Gunwall court. First "due to the explicit language of Const. art. 1, § 7, under the Washington Constitution the relevant inquiry for determining when a search has occurred is whether the State unreasonably intruded into the defendant's `private affairs.'" State v. Myrick, 102 Wash. 2d 506, 510, 688 P.2d 151 (1984). Next, we note, as did the Gunwall court, that the language of Const. art. 1, § 7 substantially differs from the parallel provision of the federal constitution. Third, we recognize *729 that our State Constitutional Convention specifically rejected a proposal to adopt language identical to that of the Fourth Amendment.
We next examine preexisting state law to determine if federal constitutional analysis is consistent with previously developed state law. State v. Brooks, 43 Wash. App. 560, 567, 718 P.2d 837 (1986). A single Washington case, decided before Place and Jacobsen, addresses the validity of a canine sniff. In State v. Wolohan, 23 Wash. App. 813, 598 P.2d 421 (1979), review denied, 93 Wash. 2d 1008 (1980), the court held that a canine sniff of a package being sent by common carrier was not an illegal search. Relying on Fourth Amendment analysis, the court found that the defendant had no reasonable expectation of privacy in the area in which the parcel was located or in the air space surrounding the package. In a footnote, however, the court limited its holding:
While the issue is not before us, we entertain grave doubts whether the above rationale would permit a similar search in a public waiting room or of carry-on luggage, parcels or other personal effects on or near the person. Obviously, such a search would invade a person's legitimate expectation of privacy.
Wolohan, at 820 n. 5.
Clearly, the approach taken by the United States Supreme Court in Place and Jacobsen differs from the approach taken in Wolohan. The United States Supreme Court has adopted the rule that a canine sniff is not a search because it reveals only whether or not there is contraband present. The Wolohan court, however, indicated that whether or not a canine sniff is a search may depend on the circumstances of the sniff itself. We conclude that Const. art. 1, § 7 requires us to consider the circumstances of a canine sniff in order to determine whether the sniff is a search. Thus, we do not adopt the United States Supreme Court's blanket holding that canine sniffs are not searches. Instead, under our constitution we examine the nature of the intrusion into the defendant's private affairs that is *730 occasioned by the canine sniff.
[2] Applying this analysis to the present case, we find that the canine sniff of Boyce's safety deposit box was not a search under Const. art. 1, § 7. Indeed, we can envision few situations where a canine sniff of an object[4] would unreasonably intrude into the defendant's private affairs. As long as the canine sniffs the object from an area where the defendant does not have a reasonable expectation of privacy, and the canine sniff itself is minimally intrusive, then no search has occurred.
The facts of this case indicate that (1) the officers had permission to be in the vault area, (2) a person who has a safety deposit box in that bank does not have complete control over who will be in the vault area, (3) the court found that there was no seizure of Boyce's safety deposit box, and (4) a canine sniff of the air outside the safety deposit box was minimally intrusive. Under these circumstances, the canine sniff was not a search under Const. art. 1, § 7.
The judgment is affirmed.
RINGOLD, A.C.J., and SWANSON, J., concur.
NOTES
[1] In ruling on the motion to suppress, the court found that the bank gave the detective permission to enter the vault area with Sammy. The court also found that a bank customer does not have complete control over who may be in the vault area and that the bank had the authority to allow people into the vault area.
[2] At the motion to suppress, Sammy's handler described an "alert" as follows:
"It usually starts off with an intensive sniffing of the area, followed usually by what we call a tail flag, the tail will rise and hair at the base of the tail usually comes up a little bit. That's usually followed by an aggressive pouring or scratching at the article, the area which she's alerting on, and can be followed by a biting sequence if I allow it to go that far."
In the present case, the alert did not progress to biting and scratching.
[3] Justice Blackmun referred to this approach in his concurrence in United States v. Place, 462 U.S. 696, 723, 77 L. Ed. 2d 110, 103 S. Ct. 2637 (1983), stating, "While the Court has adopted one plausible analysis of the issue, there are others. For example, a dog sniff may be a search, but a minimally intrusive one that could be justified in this situation under Terry upon mere reasonable suspicion."
[4] A canine sniff of a person or of effects on or near a person presents a different issue and may require a reasonable suspicion that contraband was present. See Loewy, The Fourth Amendment as a Device for Protecting the Innocent, 81 Mich. L. Rev. 1229, 1246-47 (1983) ("the very act of being subjected to a body sniff by a German Shepherd may be offensive at best or harrowing at worst to the innocent sniffee." (Footnote omitted.)); 1 W. LaFave, Search and Seizure § 2.2, at 120 (Supp. 1986) ("a sniff directed at objects being carried by the person is no less objectionable ..."). That issue, however, is not before us, and its resolution must await an appropriate case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318401/ | 346 S.E.2d 551 (1986)
HARDMAN TRUCKING, INC.
v.
POLING TRUCKING CO., INC., et al.
No. 16695.
Supreme Court of Appeals of West Virginia.
June 27, 1986.
*552 James C. West, Jr., Larry O. Ford, Jones, Williams, West & Jones, Clarksburg, for appellant.
James A. Varner, Catherine D. Munster, McNeer, Highland & McMunn, Clarksburg, for appellee.
PER CURIAM:
This is an appeal by Hardman Trucking Company, Inc., the plaintiff below (hereinafter Hardman Trucking), from a final order of the Circuit Court of Randolph County which granted the post-trial motions of the defendants to set aside a jury verdict or to remit a portion of the damages awarded by the jury.
Hardman Trucking brought an action to recover damages resulting from a collision between one of its Ford triaxle dump trucks and an International triaxle dump truck belonging to James Foltz. The defendants were owner Foltz; lessee Poling Trucking Co.; driver James L. Davis; Truck Owners, Inc., a corporation with whom Foltz had a contract to haul coal; Preston Motors, Inc., a corporation that sold the truck to Foltz; and Super City Manufacturing, Inc., the manufacturer and installer of the truck's dump bed. Hardman Trucking sought recovery of damages for injury to its vehicle, lost profits while the truck was undergoing repairs, loss of the stone being hauled, towing services, annoyance and inconvenience. Hardman Trucking also claimed entitlement to prejudgment interest.
The defendants admitted liability. A jury trial on damages alone took place on March 27 and 28, 1984. The jury awarded Hardman Trucking $56,010.78. The elements comprising the award were itemized as follows: Repair to truck and bed $35,600.00; loss of net profits $18,000.00; tow bill $310.30; lost stone $100.48; inconvenience $2,000.00.
The trial judge entered a judgment order upon the verdict of the jury, but deferred making a determination on Hardman Trucking's entitlement to interest on the award. The defendants made motions to set aside the verdict and award a new trial, *553 or alternatively, to order a remittitur. The defendants also moved to limit prejudgment interest. The court granted the motions, ruling that the verdicts awarding damages for repair of the truck, lost profits and inconvenience would be set aside. A new trial was granted.[1] The court permitted prejudgment interest only on the damages awarded for the towing bill and the lost stone.
Hardman Trucking assigns as error: (1) The use of an improper standard for measuring damages resulting from the injury to the truck; (2) the court's conclusion that the plaintiff failed to prove loss of profits; (3) the court's finding that the plaintiff failed to mitigate its damages; (4) the court's denial of prejudgment interest on lost profits and the cost of repairs; and (5) the court's denial of damages for inconvenience.
Facts
On October 15, 1979, a 1978 Ford triaxle dump truck owned by Hardman Trucking was involved in a collision with a 1978 International triaxle dump truck. The Ford truck was taken to the repair shop of Paul Ours in Buckhannon. It was out of service from the date of the accident until July 16, 1980. Hardman Trucking paid Ours $26,954.57 for parts and labor related to repair of the exhaust system, frame, transmission, clutch, cab and other body parts. It was established at trial that some work performed by Ours was unrelated to the collision damage. A two-speed axle was installed at a cost of $1092.28. For maintenance necessitated by ordinary wear and tear, Ours charged $1392.92. There also were overcharges refunded by Ours in the amount of $1388.76. The cost of repairs performed by Ours, allegedly attributable to the damage resulting from the collision, thus totalled $23,080.61.
Additional work was performed by Alfab, Inc. of Smithville, including installation of a new dump bed and a new axle. Alfab's bill for parts and labor amounted to $12,190.
The following evidence was adduced with respect to the value of the appellant's truck. Richard Hardman, president of the appellant corporation, testified that he purchased the truck in March or April of 1978 for $48,000. At the time of the collision in October, 1979, it had been run for 80,000 miles. Richard Moneypenny, a former truck salesman, testified that he had seen the truck several times prior to the wreck and that, in his opinion, it had a fair market value of between $52,000 and $54,000. He explained that Hardman took good care of his vehicles and that its value would exceed the purchase price because of inflation. Ours estimated that prior to the wreck, the truck had a value of $35,000. No appraisal was performed subsequent to the accident. However, Ours testified that he had been told by a junk dealer that the truck might be worth $500 in its unrepaired condition.
The evidentiary basis for lost profits damages was a set of receipts showing gross income of $56,265.33, earned by the use of the truck for a comparable period in the previous year, October 15, 1978 through July 16, 1979. Deducted from the gross income were expenses totalling $21,210.13. Mr. Hardman testified that the net profit was $22,916.31, although this figure does not account for $12,138.89. He further testified that the volume of business was about the same in both the sample period and the nine months the truck was out of service. Gerald Ramsburg, an official *554 of a company for which the appellant hauled coal, testified that there would have been work for the truck had it been available.
Mr. Hardman was questioned about the income of his company, earned through the use of a fleet of five trucks and two bulldozers, as reflected in federal income tax returns. Taxable income for Hardman Trucking was shown to be $29,232.37 in 1978; $25,638.52 in 1979; $23,558.27 in 1980;[2] and $48,326.23 in 1981. Hardman was vigorously cross-examined concerning the fact that the net income for the entire company only slightly exceeded the claim of net profits lost because one truck was out of service. He explained that the 1978 Ford was used much more frequently than the other trucks in the fleet.
Ramsburg testified that another independent trucker had gross earnings of $39,107.99 from October 15, 1979 to July 16, 1980.
The appellant owned a sixth dump truck, a 1971 Ford. It was not a triaxle and had a smaller capacity than the damaged truck. This truck was not in running condition at the time of the wreck. Mr. Hardman testified that $1000 worth of repairs was necessary in order to put the 1971 truck back into service. He also felt it would not be feasible to use this truck as a replacement for the damaged triaxle dump truck because of its smaller capacity. Edgar Bligh, an owner/operator of a trucking business testified that triaxle trucks were preferred for long hauls, because it would not be economically feasible to use a truck with a smaller capacity.
Mr. Hardman was also asked about his failure to rent or lease a replacement truck. He replied that there were no trucks available for rent. This was corroborated by Ramsburg, who testified that it was impossible to rent a triaxle dump truck.
Other expenses claimed by the appellant as losses due to the accident were $310.30 for towing and $100.48 for the load of crushed stone being hauled by the truck at the time of the collision.
The appellees presented no evidence.
Damages for injury to the truck
In awarding a new trial the judge concluded that the jury was erroneously instructed on the measure of damages and that the verdict was not supported by the evidence.
The appellant contends that the jury was instructed correctly on the measure of damages and that the trial judge therefore erred in setting aside the jury's verdict.
Syllabus point 2 of Jarrett v. E. L. Harper & Son, Inc., 160 W.Va. 399, 235 S.E.2d 362 (1977) provides:
When realty is injured the owner may recover the cost of repairing it, plus his expenses stemming from the injury, including loss of use during the repair period. If the injury cannot be repaired or the cost of repair would exceed the property's market value, then the owner may recover its lost value, plus his expenses stemming from the injury including loss of use during the time he has been deprived of his property.
Although Jarrett involved real property, we said that the rule for measurement of damages "would be similar to the rule about damage to personal property." 235 S.E.2d at 365.
In the case before us, the jury was instructed that the plaintiff may be entitled to recover the cost of repairing the truck so long as the costs of repair was less than the market value and provided that such costs resulted from the defendants' negligence. This was in accord with Jarrett, supra.
There was sufficient evidence to support the $35,600 verdict. There was testimony from Hardman, Moneypenny, and Ours from which the jury could fairly determine the market value of the truck. *555 All the repair bills were introduced into evidence. The questions of which repairs, and the reasonable costs thereof, were attributable to the defendants' negligence, was properly presented to the jury for its determination.
Our test for the sufficiency of the evidence to support a jury verdict was recently restated in syllabus point 5 of Orr v. Crowder, ___ W.Va. ___, 315 S.E.2d 593 (1983):
In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.
Syllabus point 5 of Kesner v. Trenton, 158 W.Va. 997, 216 S.E.2d 880 (1975) provides: "The test in reviewing a judgment setting aside a jury verdict and awarding a new trial is whether the trial court's discretion in supervising verdicts, so as to prevent a miscarriage of justice, has been abused."
Because the jury was properly instructed and its verdict was supported by the evidence, we conclude that the trial judge abused his discretion by setting aside the verdict.
Loss of Profits
The appellant's second assignment of error is that the court improperly set aside the jury verdict awarding $18,000 for lost profits. The trial judge's ruling was based on findings that the appellant failed to present proper proof of lost profits and failed to mitigate its damages.
Loss of profits may be recoverable in tort actions. However, this Court has established stringent prerequisites to such recovery: "In order to recover for loss of profits as the result of a tort, they must be such as would be expected to follow naturally the wrongful act, and are certain both in their nature and the cause from which they proceed." Syl. pt. 2, Ohio-West Virginia Co. v. Chesapeake & Ohio Railway Co., 97 W.Va. 61, 124 S.E. 587 (1924); see also syl. pt. 4, Stewart v. Pollack-Forsch Co., 105 W.Va. 453, 143 S.E. 98 (1928); State ex rel. Shatzer v. Freeport Coal Co., 144 W.Va. 178, 188-9, 107 S.E.2d 503, 510 (1959). Upon reviewing the trial record, we believe that the evidence was sufficient to present to the jury the issue of lost profits.
The trial judge also concluded that, because of its failure to mitigate, the appellant was not entitled to any amount to compensate for lost profits. "As a general rule a person whose property is endangered or injured must use reasonable care to mitigate the damages; but such person is only required to protect himself from the injurious consequence of the wrongful act by the exercise of ordinary effort and care and moderate expense." Oresta v. Romano Bros., Inc., 137 W.Va. 633, 650, 73 S.E.2d 622, 632 (1952).
In a case where the possibility was raised that a vehicle owner might lessen his damages by renting a replacement, we said that "the plaintiff would not be entitled to recover the vehicle's earnings, but only the amount it would have cost him to replace the vehicle by renting one in its stead. If that had been shown to be impossible then the earnings of the vehicle, not including those of its driver, would have been relevant on the question of damages." Somerville v. Dellosa, 133 W.Va. 435, 445-46, 56 S.E.2d 756, 763 (1949).
The appellant's evidence was that it was impossible to lease a replacement vehicle. Both Hardman and Moneypenny testified that no triaxle dump trucks were available for lease. Although trucks with smaller capacities may have been available, there was testimony showing that use of smaller trucks may not have been economically practical. The jury had the opportunity to weigh the credibility of the witnesses and *556 believe or disbelieve the testimony. They were instructed as to the effect of a failure to mitigate damages.[3] As we noted above, the verdict was lower than the amount claimed by the appellant as lost profit. A variety of factors may have produced this result. For example, the jury may have believed that additional expenses were not taken into account when computing past profits or that the appellant could have repaired the 1971 Ford and placed it back into service. In any of these circumstances, however, the jury might reasonably believe from the evidence that the appellant would still have suffered some loss of profit.
Under these circumstances the jury verdict awarding $18,000 should not have been set aside. This portion of the trial court's order is therefore reversed.
Prejudgment Interest
The trial judge allowed recovery of prejudgment interest on the amount of the tow bills and the loss of the stone. The appellant contends it is entitled to prejudgment interest on the damages awarded for loss of profits and costs of repair. The appellant concedes that it is not entitled to prejudgment interest on any recoverable amount for annoyance.
In Bond v. City of Huntington, ___ W.Va. ___, 276 S.E.2d 539 (1981), we held that an award of prejudgment interest on an ascertainable pecuniary loss was a proper element of damages in a tort action. We said, "the purpose of awarding interest as a part of the damages, where there is ascertainable pecuniary loss, is to fully compensate the injured party for the loss of the use of funds that have been expended." 276 S.E.2d at 548. With respect to the period of time for which prejudgment interest is recoverable, we said: "The interest is recoverable from the date the expense was incurred up to the date of the trial." 276 S.E.2d at 549.
Ascertainable pecuniary losses, upon which prejudgment interest as an element of compensatory damages may be awarded, are losses that are certain or capable of being rendered certain by reasonable calculation. Bond v. City of Huntington, supra, 276 S.E.2d at 546-48. See also Kirk v. Pineville Mobile Homes, Inc., ___ W.Va. ___, 310 S.E.2d 210, 212 (1983).[4] In the case before us, the damages for lost profits and cost of repairs are reasonably susceptible to calculation and are therefore subject to prejudgment interest.
Damages for inconvenience and annoyance
Finally, the appellant contends that the court erred in setting aside the verdict awarding $2,000 for damages due to inconvenience and annoyance. The arguments of both appellant and appellee are directed at the legal question of whether a corporation can recover such damages. We need not reach this issue because the trial judge based his ruling on a finding that the appellant presented no evidence of being inconvenienced. Upon review of the record, we believe the trial judge's determination was correct. Therefore, the award of damages for inconvenience was properly set aside.
In summary, the order of the trial court setting aside the jury verdict and granting a new trial is reversed, except that the portion of the order setting aside the verdict of $2,000 for inconvenience is affirmed; the order denying prejudgment interest is reversed; and this case is remanded to the Circuit Court of Randolph County for further *557 proceedings consistent with this opinion.
Affirmed in part; reversed in part; and remanded.
NOTES
[1] As an alternative to a new trial, the appellant was offered the option of accepting a reduced verdict in the amount of $36,268.67. Although the trial judge did not explain how he calculated the amount by which the verdict would be reduced, it is apparent that the $56,010.78 was reduced by subtracting the amount of lost profits damages ($18,000) and inconvenience damages ($2,000), then adding prejudgment interest in the amount of $257.89. The appellant did not accept this offer and has elected to challenge the order granting a new trial. Our review is therefore limited to the propriety of awarding a new trial. See Stilwell v. Williams, 476 So. 2d 24 (Miss.1985); Schoppe v. Applied Chemicals Div., 418 So. 2d 833 (Miss.1982); Means v. Sears, Roebuck & Co., 550 S.W.2d 780 (Mo.1977); Corabi v. Curtis Publishing Co., 437 Pa. 143, 151-52, 262 A.2d 665, 669 (1970).
[2] The appellant took a deduction of approximately $36,000 in 1980 for the cost of repairing the damaged truck.
[3] The instruction on mitigation reads as follows:
The Court instructs the jury that it was the duty of the plaintiff to mitigate, that is lessen, any loss or damage which he claims to have sustained and if you believe from a preponderance of the evidence that plaintiff did not do so but on the contrary enlarged upon his claim for damages, then you may take that fact into consideration.
[4] In Kirk v. Pineville Mobile Homes, Inc., supra, we noted that W.Va.Code, 56-6-31 [1981] includes lost income and damages to tangible personal property within the definition of "special damages" upon which prejudgment interest is to be paid. 310 S.E.2d at 212, n. 1; see also Ilosky v. Michelin Tire Corp., ___ W.Va. ___, 307 S.E.2d 603, 615 (1983). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318427/ | 179 Ga. App. 327 (1986)
346 S.E.2d 387
WYATT
v.
THE STATE.
72163.
Court of Appeals of Georgia.
Decided May 27, 1986.
Rehearing Denied June 9, 1986.
Darel C. Mitchell, for appellant.
Ralph Bowden, Solicitor, Nancy Jackson, Henry Newkirk, Assistant Solicitors, for appellee.
SOGNIER, Judge.
Wyatt appeals from his conviction of driving under the influence of alcohol.
1. Appellant contends the trial court erred by denying his motion in limine to suppress testimony that he refused to take a breath test, and by granting the State's motion in limine to suppress testimony that appellant's driver's license had not been suspended.
The evidence disclosed that appellant was arrested for driving under the influence of alcohol. The arresting officer read the implied consent warning to appellant, who stated that he understood and *328 agreed to take a breath test. On arrival at the police station appellant was again given the implied consent warning and initialed the warning form, indicating that he understood the warning, agreed to take the test and did not desire an additional test. When the testing officer attempted to give appellant the breath test, appellant placed the tube in his mouth but would not blow in it. He was warned that he would be given two more chances to blow into the tube, and if he did not do so it would be considered a refusal to take the test. On each of two subsequent attempts to administer the test appellant placed the tube in his mouth but placed his tongue over the mouthpiece so his breath did not go through the tube. Appellant was then recorded as refusing to take the test, and an implied consent affidavit was forwarded to the State Patrol. Appellant requested a hearing with the Department of Public Safety. The arresting officer did not appear at the hearing so appellant's license was not suspended. No evidence was presented at the hearing.
Appellant testified he was not given the implied consent warnings by the arresting officer or at the police station, and thus, his motion in limine should have been granted because there was no affirmative showing by the State that the warning was given to appellant, as required by Steed v. City of Atlanta, 172 Ga. App. 839 (325 SE2d 165) (1984). This contention has been decided adversely to appellant in State v. Dull, 176 Ga. App. 152, 154 (335 SE2d 605) (1985), and a defendant's refusal to take a blood alcohol test is relevant and admissible. OCGA § 40-6-392 (c); Wessels v. State, 169 Ga. App. 246, 247 (2) (312 SE2d 361) (1983). Hence, it was not error to deny appellant's motion in limine.
The State's motion in limine was granted properly, as evidence that appellant's driver's license was not, and would not, be suspended was not relevant to the issue of whether or not appellant was driving under the influence of alcohol at the time of his arrest. Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly; irrelevant matter should be excluded. OCGA § 24-2-1. What occurred at the administrative hearing subsequent to appellant's arrest would have no bearing on whether or not he was driving under the influence of alcohol, which was the only issue before the jury. Further, appellant was allowed to testify that he had a current, valid driver's license at the time of trial. Thus, he could not have been harmed by any error in granting the State's motion, and the burden is on a party claiming error not only to show error, but that he was injured by such error. Anderson v. State, 165 Ga. App. 885, 887 (3) (303 SE2d 57) (1983).
2. Appellant contends the trial court erred by allowing the State to ask appellant on cross-examination, over objection, how much he would have to drink before he considered himself drunk. After appellant's *329 objection was overruled, appellant did not answer the question and the State did not ask the question again. Thus, there is nothing for us to review. Hudson v. State, 175 Ga. App. 692 (1) (334 SE2d 20) (1985).
3. In his fourth, fifth and sixth enumerations of error appellant contends the trial court erred by allowing the State to cross-examine appellant about prior DUI arrests without first showing him certified copies of prior convictions. This issue arose when appellant responded to a question on cross-examination that he always stopped with one drink if he was going to be driving. The prosecuting attorney was then allowed, over objection, to question appellant about his prior convictions for driving under the influence of alcohol.
Once appellant testified that he always stopped after one drink if he was going to drive, the State was properly allowed to impeach this testimony by questioning appellant about his prior DUI convictions. OCGA § 24-9-82; Hammond v. State, 169 Ga. App. 97 (2) (311 SE2d 523) (1983). The fact that appellant subsequently attempted to limit his statement to actions within the last year is immaterial, for his initial response of "always" subjected his testimony to impeachment. Contrary to appellant's contentions, the State showed appellant certified copies of his convictions, which appellant acknowledged were signed by him. The certified copies showed on their face that appellant waived his right to be represented by counsel at the prior trials, and that he pled guilty to the offenses charged. Thus, the State was not required to establish that appellant was represented by counsel.
4. Appellant contends the trial court erred by giving the State's request to charge that appellant's refusal to permit a chemical analysis of his blood, breath or urine was admissible in evidence. This contention has been decided adversely to appellant. Mathews v. State, 176 Ga. App. 394 (3) (336 SE2d 259) (1985).
5. Lastly, appellant contends error by allowing the State to introduce into evidence at the pre-sentence hearing a certified copy of appellant's driving record, because the defense was not provided a copy of the driving record prior to trial, and there was no showing that appellant was represented by counsel at his prior DUI trials. We have answered the latter contention in Division 3.
Appellant relies on OCGA § 17-10-2, which provides that once a jury has returned a verdict of guilty in a felony case, the judge shall conduct a pre-sentence hearing and only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible. This code section applies only to felony cases, and appellant was convicted here of a misdemeanor. Even assuming the statute was applicable to misdemeanor cases, the purpose of § 17-10-2 is to allow a defendant to examine his record to determine if the convictions are in fact his, if he was represented by counsel, and any other *330 defect which would render such documents inadmissible during the pre-sentencing phase of trial. Roberts v. State, 252 Ga. 227, 240 (11) (314 SE2d 83) (1984). Both appellant and his counsel examined certified copies of his prior convictions during the guilt-innocence phase of trial. Appellant acknowledged his signature on the documents, which showed on their face that appellant had pleaded guilty and had waived his right to be represented by counsel. Hence, the introduction of appellant's prior record could not have rendered the sentence invalid. Id.
Judgment affirmed. Banke, C. J., and Birdsong, P. J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318428/ | 677 S.E.2d 711 (2009)
DANCO FINANCIAL, INC.
v.
MAULDIN BODY SHOP, INC.
No. A09A0627.
Court of Appeals of Georgia.
April 16, 2009.
*712 Daniel Andrew Coleman, for appellant.
G. Channing Ruskell, for appellee.
JOHNSON, Presiding Judge.
We granted discretionary review in this case to determine whether the trial court erred in awarding damages to Mauldin Body Shop, Inc., despite Mauldin's failure to strictly comply with the abandoned motor vehicle statute, OCGA § 40-11-2. Because we find that strict compliance with the statute is a prerequisite to recovery, we reverse the trial court's award of damages to Mauldin.
The applicable facts of the case are not in dispute. Danco Financial, Inc. is a lienholder of a vehicle that was involved in an accident on September 11, 2007. The registered owner's son subsequently brought the vehicle to Mauldin for repairs. Because of the owner's failure to pay for the repairs or remain in contact with Mauldin, Mauldin declared the vehicle abandoned on December 20, 2007. Upon Mauldin's request, the Sheriff's office notified Mauldin on December 28, 2007 that Danco was a lienholder of the vehicle. On January 7, 2008, Mauldin mailed notice to Danco that it was in possession of the vehicle and demanded $4,754.60 for "towing and administrative" fees, plus a $75 notification fee and storage at a rate of $20 per day from the date of the towing. The notice also informed Danco that the vehicle would be sold at a public auction if the fees were not paid. This was the first time Danco became aware that the vehicle was at Mauldin's facility.
When the parties could not reach an agreement about the vehicle fees, Danco filed an action in magistrate court asking the court to (1) determine the validity of the lien and the proper party to have possession of the vehicle, and (2) issue an order requiring Mauldin to surrender possession of the vehicle. Mauldin denied wrongfully holding the vehicle, claiming it had a lien on it for repairs, towing, and storage. Following a bench trial, the magistrate court awarded Mauldin $3,045 as a lien against the vehicle for storage fees, finding that Mauldin was not entitled to fees for the repair of the abandoned vehicle under OCGA § 40-11-2.
Danco appealed the case to state court, and, after a nonjury trial, the state court awarded $3,045 to Mauldin. Mauldin then appealed to this court for discretionary review, which we granted.
1. Danco contends the trial court erred by awarding damages to Mauldin under the abandoned motor vehicle statute even though Mauldin failed to comply with the notice requirement of the statute. We agree.
OCGA § 40-11-4(a) provides that any person who removes or stores a motor vehicle that is or becomes an abandoned vehicle shall have a lien on the vehicle for the reasonable fees connected with the removal or storage, plus the cost of notification, "if the person moving or storing such vehicle is in compliance with Code Section 40-11-2." One of the duties imposed by OCGA § 40-11-2(f) is written notification:
Upon ascertaining the owners of such motor vehicle, the person removing or storing such vehicle shall, within five calendar days, by certified or registered mail or statutory overnight delivery, notify all known owners of the vehicle of the location of such vehicle and of the fact that such vehicle is deemed abandoned and shall be disposed of if not redeemed.
"Owners" includes "the registered owner, the owner as recorded on the title, lessor, lessee, *713 security interest holders, and all lienholders as shown on the records of the Department of Revenue."[1]
It is undisputed in the present case that Mauldin learned that Danco was a lien holder on December 28, 2007, but did not mail its certified notification letter until January 7, 2008. Although Mauldin asserts that the failure to timely deliver the notification was due to several days off during the New Year's holiday, the statute does not provide for excuses. OCGA § 40-11-2(k) states, "Any person who does not provide the notice and information required by this Code section... shall not be entitled to any storage fees." And it is well established that lien statutes, being in derogation of common law, must be strictly construed against the lien claimant, and strict compliance is required in order to enforce them.[2] Strictly construing the lien statute as we must, Mauldin's failure to timely notify Danco of the abandoned vehicle resulted in a forfeiture of the fees that the abandoned motor vehicle statute might have provided.[3]
2. Based on our holding in Division 1, Danco's remaining enumerations of error are deemed moot.
Judgment reversed.
ELLINGTON and MIKELL, JJ., concur.
NOTES
[1] OCGA § 40-11-1(3).
[2] Benning Constr. Co. v. Dykes Paving etc. Co., 263 Ga. 16, 18, 426 S.E.2d 564 (1993); Purser Truck Sales v. Horton, 276 Ga.App. 17, 19(2), 622 S.E.2d 405 (2005).
[3] See Purser Truck Sales, supra at 19(2), 622 S.E.2d 405; A Tow, Inc. v. Williams, 245 Ga.App. 661, 662-663, 538 S.E.2d 542 (2000); First Nat. Bank of Gainesville v. Alvin Worley & Sons, Inc., 221 Ga.App. 820(1), 472 S.E.2d 568 (1996). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318421/ | 677 S.E.2d 363 (2009)
BROWN
v.
QBE INSURANCE CORPORATION.
QBE Insurance Corporation
v.
Brown.
Nos. A08A2416, A08A2417.
Court of Appeals of Georgia.
March 26, 2009.
Reconsideration Denied April 8, 2009.
*364 Sell & Melton, Jeffrey B. Hanson, Mitchel P. House, Macon, for appellant.
Dennis, Corry, Porter & Smith, John D. Dixon, Atlanta, for appellee.
ELLINGTON, Judge.
Jeremiah Brown was seriously injured in a collision involving his automobile and a tractor-trailer owned by Browning Trucking Company. Brown sued the trucking company and others for damages and, during the course of that litigation, the Superior Court of Laurens County ruled that an insurance policy issued by the trucking company's insurer, QBE Insurance Corporation, was in effect at the time of the collision. The court ruled that the policy was still in effect because the collision occurred after the trucking company's insurance had expired but before QBE properly notified the appropriate state agency of the policy's expiration. Following the court's ruling, QBE filed a counterclaim seeking a declaratory judgment, asking the court to determine whether it would be responsible to its insured for $1,000,000 in coverage, the amount of coverage provided by the policy, or for only the statutory minimum amount of coverage. The *365 court granted summary judgment to QBE and ruled that QBE would only be responsible for the statutory limits of coverage.
In Case No. A08A2416, Brown appeals from the trial court's grant of summary judgment to QBE on its counterclaim for a declaratory judgment. In Case No. A08A2417, QBE cross-appeals from the trial court's ruling that the insurance policy was in effect at the time of the collision. Because we conclude that the court erred in finding that the insurance policy was in effect at the time of the collision, we reverse the court's order in Case No. A08A2417. Thus, pursuant to our decision, it is unnecessary for us to reach the issues in Case No. A08A2416, because the question regarding the limits of coverage for which QBE would be responsible is moot.
Case No. A08A2417
1. QBE contends that the court erred in finding that the insurance policy was still in effect at the time of the collision, arguing that the evidence showed it had complied with the requirements for notifying the agency that it no longer insured the trucking company. Specifically, QBE contends that the court erred in finding that the document originally filed by QBE to notify the agency that the policy was about to expire was not in an "acceptable form" when the agency originally received it in 2002 and that, consequently, the actual receipt date of the form was not until March 29, 2005, when QBE resubmitted the form to the agency. For the following reasons, we agree with QBE's contentions.
Applicable statutes and regulations. In order to properly address QBE's arguments, we must first look at the relevant statutes and regulations. The Motor Carrier Act of 1931, OCGA § 46-7-1 et seq., gave the Georgia Public Service Commission ("PSC") "the power to regulate the business of persons engaged in the transportation of persons and property for hire on any public highway" in Georgia.[1] In July 2001, the Georgia General Assembly passed legislation that transferred responsibility for the regulation of motor carriers from the PSC to the Department of Motor Vehicle Safety ("DMVS").[2] Following the transfer, a motor carrier had to either file a bond or have a certificate of liability insurance, designated as "Form E," on file with the DMVS before the DMVS was authorized to issue the carrier a certificate that allowed it to operate in the state.[3] Once the Form E was on file, the motor carrier's liability insurance remained in effect until 30 days after the DMVS received a separate form, designated as "Form K," from the insurer notifying the DMVS that the insurance policy had been cancelled or was about to expire.[4] Therefore, until the DMVS received a completed Form K from the insurer, the insured's policy remained in effect, even if the insured failed to renew the policy or pay premiums on it. See DeHart v. Liberty Mut. Ins. Co., 270 Ga. 381, 385-386, 509 S.E.2d 913 (1998) (discussing the commission's "continuing coverage" provision and stating that, until the insurer gives proper notice to the commission, "the policy is effective for the benefit of the public") (punctuation and footnote omitted).
*366 QBE's insurance policy and its filing of the Form K with the DMVS. Turning to the record in this case, it shows the following undisputed facts. On May 14, 2001, QBE issued a motor carrier insurance policy to Browning Trucking Company; the policy's expiration date was May 14, 2002. On May 21, 2001, QBE filed a form ("Form E") certifying the coverage with the DMVS, so that Browning Trucking Company could legally operate its trucking business in Georgia. On March 25, 2002, QBE filed a Form K with the DMVS which notified the agency that the policy was going to expire on May 14, 2002. The form complied with the PSC's Transportation Rule 7-2.6(b) and (c)(3) and identified the trucking company, insurance company, policy number and cancellation date of the policy, although QBE had written in a space near the top that it was filed with the "Georgia Public Service Commission" instead of the "DMVS."[5] A DMVS employee stamped the form as having been filed in the DMVS office on March 25, 2002. The DMVS did not enter the filing of the Form K in its computer database, though, or put a copy of the form in its file on Browning Trucking Company.
DMVS procedures for handling a Form K in 2002. Betty Dewberry, who worked as the lead operator in registration at the PSC from 1993 until 2000 and at the DMVS from 2000 until May 2005, testified about how she handled Form Ks in 2002. According to Dewberry, after the DMVS took over the responsibility for administering Forms E and K, if an insurance company filed a Form K that referred to the "PSC" instead of the "DMVS," the agency would send the Form K back to the insurance company with directions to change the "PSC" to read "DMVS" and to refile the form. Then, when the insurance company returned the Form K to the DMVS, the agency would enter the form into its database and would use the original stamped date as the date the form was filed. Dewberry testified that it was "state policy" to honor the date the Form K was first filed with the DMVS. Dewberry also testified that the critical information on the Form K was the expiration date of the insurance policy; everything else could be changed and the DMVS would still honor the original date it had received the form. There was no evidence that the reference to the "PSC," or a later amendment marking through the "PSC" and writing in "DMVS," invalidated the Form K. Dewberry and other former DMVS employees who were deposed admitted that they were unaware of any written policies or procedures as to whether the agency should accept or reject Form K's that complied with the PSC's rules but which contained a reference to the "PSC" instead of the "DMVS" and that they did not receive any specific training on how to handle this situation.
As to the Form K at issue in this case, none of the former DMVS employees remembered seeing or handling the form in March 2002, nor did they know what happened to the form after March 2002. Dewberry admitted that she was just assuming that a DMVS employee had sent the Form K back to QBE in March 2002. There are no notes in the DMVS's file for Browning Trucking Company nor any other evidence showing that the DMVS actually sent the form back to QBE or otherwise demonstrating what happened to the Form K after QBE filed it with the DMVS in March 2002.
The collision and the resulting personal injury suit. On June 11, 2003, almost 15 months after QBE had filed the Form K notifying the DMVS that its insurance policy covering Browning Trucking Company was going to expire on May 14, 2002, a Browning Trucking Company tractor-trailer collided with Jeremiah Brown's car, resulting in serious *367 injuries to Brown. On February 11, 2005, Brown filed a personal injury suit against Browning Trucking Company and the truck driver, as well as QBE and two other insurance companies. QBE answered and denied that it was a proper party to the suit, averring that it did not have a policy of insurance in effect for the trucking company or driver on the date of the collision. QBE contacted the DMVS about the Form K it had filed in 2002 and provided the agency with a stamped copy of the form, which showed the March 2002 filing date. Dewberry instructed QBE to cross out the reference to the "PSC" on the form and to write in "DMVS." After QBE complied, Dewberry entered the Form K into its computer system reflecting a "received on" date of March 25, 2002.
Relying upon this evidence, QBE filed a motion for summary judgment, and the trial court granted the motion on February 28, 2006. According to the court's order, the undisputed evidence showed that QBE timely submitted the Form K before it discontinued insurance coverage for Browning Trucking Company and, even though there was an amendable error on the form that QBE fixed after Brown filed suit, state policy required the effective date of such notice to be the date of QBE's initial submission of the Form K. Thus, the court concluded that QBE did not cover Browning Trucking Company at the time of the collision and could not be held responsible for any resulting damages.
The Georgia Department of Revenue's alteration of the agency database and its effect on the trial court's rulings. Between the time Brown filed his suit and the court granted summary judgment to QBE, the Georgia General Assembly amended the Code to eliminate the DMVS and to substitute the Department of Revenue ("DOR") as the successor agency that was responsible for certifying motor carriers.[6] The amendment became effective on July 1, 2005.[7] On April 5, 2006, after the trial court had granted summary judgment to QBE, Brown's counsel contacted the DOR and asked it to revise its records concerning Browning Trucking Company to reflect that QBE's Form K was formally filed in March 2005, after the collision at issue, instead of in March 2002, as shown on the form itself. According to a letter by Douglas Hooper, the director of the DOR's Motor Vehicle Division, Hooper agreed to alter the agency's records to show the March 2005 filing date "because the evidence is that [QBE] failed to return a form that [had] been incorrectly completed and, therefore, failed to file the required [Form K] when the policy was cancelled in 2002." Even though Hooper admitted in his letter that QBE's Form K complied with the specific language of PSC Transportation Rule 7-2.6 when QBE filed it in March 2002, he still concluded that the DOR had "a duty to revise its record to reflect the actual date of receipt of the correct Form K" in March 2005. During his deposition, Hooper again admitted that QBE's Form K complied with PSC Transportation Rule 7-2.6 when QBE filed the form in 2002. He also admitted that, although he had previously worked at the DMVS, he had no personal knowledge of the March 2002 filing of QBE's Form K, could not remember if he had consulted with any agency employees who had handled the form in 2002 before he wrote the letter and altered the agency's records, and did not keep a record of any investigation he may have conducted regarding the filing of the form. In addition, Hooper admitted that he did not think that the agency had any written policies in place in 2002 regarding which Form Ks to accept and which to reject. Moreover, Hooper admitted that he was not aware of any agency policy that prohibited Dewberry from backdating the agency's computer records in 2005 to show that QBE had filed the form in 2002.
Relying upon Hooper's letter and Hooper's alteration of the DOR's records, however, Brown filed a motion to reconsider or vacate the court's grant of summary judgment to QBE, and the court granted Brown's motion and set aside its order. The court then conducted a bench trial on the issue of when QBE had filed the Form K with the DMVS. *368 On March 27, 2008, the court entered an order finding that the Form K had not been in an "acceptable form" when QBE originally filed it with the DMVS and that, consequently, "the effective date of the Form K filed with the DMVS was March 29, 2005." Thus, under the continuing coverage provision of PSC Transportation Rule 7-2.6(b), QBE's policy covering Browning Trucking Company was still effective on June 11, 2003, the day Brown was injured in the collision.
(a) The trial court erred in concluding that QBE's Form K was not in "acceptable form" when originally filed with the DMVS. It is undisputed that QBE's Form K complied with PSC Transportation Rule 7-2.6 and that QBE timely filed it with the proper agency, the DMVS, in 2002, even though QBE referenced the "PSC" at the top of the form. Dewberry testified that the only critical information on the Form K was the date the policy was to expire; as long as that was correct and the form was stamped as received by the agency, all other information could be altered and the agency would still honor the original date it had been received. Given the undisputed evidence that QBE's Form K complied with the applicable agency rules and that a reference to the "PSC" instead of the "DMVS" was something that could be changed without affecting the original filing date of the form, the evidence demands a finding that QBE's single reference to the "PSC" (made just months after the DMVS took over the functions of the PSC and while the applicable rules still directed insurers to file the Form K with the PSC) did not affect the validity of the form. Therefore, the court erred in finding that QBE's Form K was not in acceptable form when filed in 2002.
(b) The trial court's ruling that the effective date of QBE's Form K was March 29, 2005, which was based upon a finding as a matter of fact that the DMVS had sent the Form K back to QBE in March 2002 to be corrected and that QBE failed to timely resubmit the amended form, was unsupported by any evidence and, therefore, was clearly erroneous.
In Georgia, "a document is considered filed when it is delivered to and received by the proper official to be kept on file.... Once received, it [is] the [agency's] responsibility to ensure that the form [is] properly processed." (Footnote omitted.) Thompson v. Gen. Security Ins. Co., 286 Ga.App. at 587(1), 649 S.E.2d 736.[8] See also Valentine v. Hammill, 258 Ga. 582, 582-583, 372 S.E.2d 435 (1988) ("It is a well established rule in Georgia that a paper is said to be filed, when it is delivered to the proper officer, and by him received to be kept on file.") (citation and punctuation omitted). Thus, the fact that the Form K does not appear in the agency's files or in its computer records does not negate the fact that the undisputed direct evidence shows that QBE filed the form with the DMVS in March 2002. See Thompson v. Gen. Security Ins. Co., 286 Ga.App. at 587(1), 649 S.E.2d 736 (because the insurance company which had covered the motor carrier presented direct evidence that it filed a Form K with the PSC in 2001, prior to the collision which caused the plaintiff's injuries, it was entitled to summary judgment on the plaintiff's claims, even though the PSC had no record in its files or computer that it had received the form).
Once the DMVS received the form from QBE in March 2002, it became responsible for ensuring that it properly processed the form. Thompson v. Gen. Security Ins. Co., 286 Ga.App. at 587(1), 649 S.E.2d 736 Brown, as the plaintiff claiming that the insurance was still in effect at the time of the collision under the continuing coverage doctrine, had the burden of proving what he claims happened to the form after QBE filed it in March 2002: that the DMVS rejected the form and sent it back to QBE and that QBE failed to resubmit the form in a timely manner. Brown failed to present any competent evidence to support such a finding.
*369 The undisputed evidence in this case showed that there were no written policies or procedures in place at the DMVS in 2002 to deal with a Form K that fully complied with the applicable rules and was stamped as filed in the DMVS office, but which contained a single reference to the "PSC" instead of the "DMVS." Even assuming without deciding, however, that the DMVS was authorized to reject QBE's Form K under these circumstances after it assumed control over the document, there is no competent evidence to show that the DMVS, in fact, rejected the form and sent it back to QBE for correction. There are no notations in the agency's file on the trucking company or the agency's computer system, nor any records of any correspondence between the DMVS and QBE, concerning the agency's handling of the Form K between March 2002 and March 2005.[9] Further, former DMVS employee Dewberry admitted that she did not have any actual knowledge about QBE's Form K and only "assumed" that another, unidentified DMVS employee returned the form to QBE in March 2002. Given the lack of any documentation in the agency's files regarding the handling of the form after the agency assumed control over it in March 2002, however, there is nothing to prove that it is more likely that the agency mailed the form back to QBE to be amended than that the agency lost or misfiled the form.
Thus, the court's finding that the DMVS sent the Form K back to QBE and that QBE failed to timely correct and resubmit it to the agency is based solely upon mere conjecture by an employee who admittedly had no memory of handling the form in 2002 and who only assumed that another, unidentified employee acted in accord with her understanding of unwritten policies and procedures. Therefore, the court's finding cannot stand. See State v. Rackoff, 264 Ga.App. 506, 508, n. 2, 591 S.E.2d 379 (2003) (there was no evidence that officers took a breathalyzer out of service after the defendant's breath test because it was giving faulty breath alcohol test results; thus, the court's assumption that the machine had been malfunctioning was entirely speculative); S.A. Lynch Corp. v. Stone, 211 Ga. 516, 520(1), 87 S.E.2d 57 (1955) (an affiant's conclusion that certain parties had reached an oral agreement was inadmissible when the affiant was not present when they reached the agreement and had no reason to know that they had reached an agreement "other than by his own guess work or deduction").
Consequently, given the undisputed direct evidence that QBE timely filed the Form K with the DMVS in March 2002, the court erred in concluding that the insurance policy issued by QBE to Browning Trucking Company was still in effect at the time of Brown's collision.
2. Given our decision in Division 1, supra, QBE's remaining enumeration of error is moot.
Case No. A08A2416
3. Brown contends that the trial court erred in concluding that, if QBE's coverage of Browning Trucking Company was extended under the continuing coverage doctrine due to its failure to timely file a Form K, but Browning Trucking Company was not in compliance with the terms of the policy at the time of the collision, QBE's liability would be limited to the statutory minimum requirements for coverage, rather than the policy limits. Given our ruling in Division 1, supra, this alleged error is moot.
Judgment reversed in Case No. A08A2417. Case No. A08A2416 dismissed as moot.
MILLER, C.J., and BLACKBURN, P.J., concur.
NOTES
[1] (Footnote omitted.) Thompson v. Gen. Security Ins. Co., 286 Ga.App. 583, 584, 649 S.E.2d 736 (2007).
[2] See Ga. L. 2000, p. 951, § 9-4; former OCGA § 46-7-1 (references in chapter to "Commissioner" or to the "Department" referred to the DMVS; statute was amended in 2005 to state that the references again referred to the PSC).
[3] See former OCGA §§ 46-7-3; 46-7-12 (amended in 2005); former Transportation Rules of Georgia PSC, Rule 7-2.6(a) (requirements for the certificate of insurance), (c)(1) ("Uniform motor carrier bodily injury and property damage liability certificate of insurance shall be in `Form E' prescribed by the [PSC].").
[4] Under the former Transportation Rules of Georgia PSC, Rule 7-2.6(b), Certificates of insurance evidencing coverage shall be continuous and shall not be canceled or withdrawn until after thirty (30) days' notice in writing by the insurance company ... has first been given to the Commission at its offices in Atlanta, Georgia, which period of thirty days shall commence to run from the date such notice is actually received at the office of the Commission. Upon receipt of the notice, [the] original stamped copy will be retained in the files of the Commission as evidence of the date of cancellation thereof and attached to the certificate of insurance[.]
See also former Transportation Rules of Georgia PSC, Rule 7-2.6(c)(3) ("Uniform notice of cancellation of motor carrier insurance policies shall be in `Form K' prescribed by the [PSC].").
[5] Although the DMVS, not the PSC, was responsible for the regulation of motor carriers in 2002, former PSC Transportation Rule 7-2.6(b), which was in effect at that time, still stated that insurance coverage is continuous until the insurance company gives 30 days notice in writing to "the Commission at its offices in Atlanta, Georgia," and that the "Commission" will retain the form in its files as evidence of the date of cancellation. (Emphasis supplied.) See Footnote 4, supra; see also current Transportation Rules of Georgia PSC, Rule 515-16-11-.08(2) (which still contains the same language, even though the legislature transferred the responsibility for regulating motor carriers to a different agency, the Georgia Department of Revenue, in 2005); footnotes 6 and 7, infra.
[6] Ga. L. 2005, p. 334, §§ 1-1 (eliminating the DMVS), 28-2.
[7] Ga. L. 2005, p. 334, § 32-1.
[8] Brown argues that Thompson does not apply to this case because the Form K in Thompson did not have any mistakes, whereas the Form K in this case referenced the "PSC" instead of the "DMVS." Thompson v. Gen. Security Ins. Co., 286 Ga.App. at 587(1), 649 S.E.2d 736. As established in subdivision 1(a), supra, however, it is undisputed that the form in this case fully complied with the requirements of the PSC Transportation Rules.
[9] See Thompson v. Gen. Security Ins. Co., 286 Ga.App. at 585, 649 S.E.2d 736 (discussing PSC procedures for handling Form Ks in 2001 and noting that, if the agency rejected a Form K, it notified the insurance company by mail and put a copy of the rejection letter in the trucking company's file). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318406/ | 346 S.E.2d 470 (1986)
STATE of North Carolina
v.
Adam GLIDDEN.
No. 692PA85.
Supreme Court of North Carolina.
August 12, 1986.
Lacy H. Thornburg, Atty. Gen. by G. Patrick Murphy, Asst. Atty. Gen., Raleigh, for the State.
Shipman & Lea by Gary K. Shipman and James W. Lea, III, Wilmington, for defendant-appellant.
MITCHELL, Justice.
The issue before this Court is whether the misdemeanor of transmitting an unsigned threatening letter in violation of N.C.G.S. § 14-394 is an offense which is made a felony by N.C.G.S. § 14-3(b). We conclude that the transmitting of such a letter does not fall within any of the classes of misdemeanors made felonious by N.C.G.S. § 14-3(b). Accordingly, we reverse the decision of the Court of Appeals.
*471 After a presentment by the grand jury, the defendant was indicted for fourteen counts of feloniously, in secrecy and malice, transmitting unsigned threatening letters between the dates of 30 July 1982 and 18 February 1983. He was convicted by a jury of ten felony counts of transmitting unsigned threatening letters in violation of N.C.G.S. § 14-394 and N.C.G.S. § 14-3(b). The trial court sentenced him to a presumptive term of three years on each count, combined into two groups of concurrent sentences totaling an active sentence of six years.
The State prosecuted the defendant and obtained his felony convictions by relying on the combined effect of N.C.G.S. § 14-394 and N.C.G.S. § 14-3(b). The first statute, N.C.G.S. § 14-394, makes it unlawful to write and transmit an unsigned threatening letter. Standing alone, such an offense is a misdemeanor. State v. Glidden, 76 N.C.App. at 654, 334 S.E.2d at 101; N.C. G.S. § 14-1 (1981). By alleging that the offense was committed "in secrecy and malice," the State was able to elevate the offense and procure felony convictions under N.C.G.S. § 14-3(b). That statute provides:
If a misdemeanor offense as to which no specific punishment is prescribed be infamous, done in secrecy and malice, or with deceit and intent to defraud, the offender shall, except where the offense is a conspiracy to commit a misdemeanor, be guilty of a class H felony.
N.C.G.S. § 14-3(b) (1981).
The defendant appealed to the Court of Appeals contending that his equal protection and due process rights were violated when the State charged him with felonies by combining the two statutes. The defendant first contended that the elements of secrecy and malice are inherent in both statutes. The defendant contended that where the same act is punishable either as a felony or a misdemeanor, and the elements essential to a conviction of either are exactly the same, a conviction under the felony statute works a denial of both due process and equal protection. He argued that since the elements of both statutes are the same, the prosecutor has absolute discretion to decide whether a violation is a misdemeanor or a felony, resulting in an equal protection violation. He also argued that the combination of the two statutes results in an ambiguous and vague sentencing provision in violation of due process.
The Court of Appeals rejected each of the defendant's constitutional arguments. Relying on United States v. Batchelder, 442 U.S. 114, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979), it held that the State may elect to prosecute for either a felony offense under the combined statutes or the misdemeanor offense proscribed in N.C.G.S. § 14-394 alone.
Although we find error and reverse the Court of Appeals' decision in the present case, we do not do so on constitutional grounds. We do not address or decide the constitutional issues raised by the defendant. Instead, we hold that N.C.G.S. § 14-3(b) does not convert a violation of N.C.G.S. § 14-394 into a felony in any case.
The majority of cases considering N.C. G.S. § 14-3(b) have involved a solicitation or attempt to commit some specific criminal offense which the State contended was an "infamous offense" and, therefore, a felony under the terms of this statute. E.g., State v. Mann, 317 N.C. 164, 345 S.E.2d 365 (1986) (solicitation to commit common law robbery is infamous crime); State v. Hageman, 307 N.C. 1, 296 S.E.2d 433 (1982) (attempted receipt of stolen property is not infamous); State v. Harward, 264 N.C. 746, 142 S.E.2d 691 (1965); State v. Parker, 262 N.C. 679, 138 S.E.2d 496 (1964) (attempt to commit armed robbery is infamous offense); State v. McNeely, 244 N.C. 737, 94 S.E.2d 853 (1956) (attempt to commit common law robbery is infamous offense); State v. Surles, 230 N.C. 272, 52 S.E.2d 880 (1949) (attempt to commit first degree burglary is infamous offense); State v. Spivey, 213 N.C. 45, 195 S.E. 1 (1938) (attempt to commit crime against nature is infamous offense). See State v. Page, 32 N.C.App. 478, 232 S.E.2d 460, disc. rev. denied, 292 *472 N.C. 643, 235 S.E.2d 64 (1977) (attempt to obtain property by false pretenses is necessarily done with intent to deceive). See generally Note, Criminal LawInfamous OffensesAttempted Burglary Punishable as a Felony, 28 N.C.L.Rev. 103 (1949) (historical discussion).
In determining whether an offense is "infamous" and shall be punished as a felony for that reason under N.C.G.S. § 14-3(b), this Court has consistently looked to the nature of the offense. Id. In the most recent case considering that issue, we stated that: "A crime is `infamous' within the meaning of the statute if it is an act of depravity, involves moral turpitude, and reveals a heart devoid of social duty and a mind fatally bent on mischief...." State v. Mann, 317 N.C. at ___, 345 S.E.2d at 369. The "infamous" nature of the offense was the determinative consideration rather than the particular circumstances of the individual case. It suffices to say that we conclude that the crime of transmitting an unsigned threatening letter is not such an act of depravity as to be an "infamous" offense made felonious by N.C.G.S. § 14-3(b).
We turn then to consider whether the offense of transmitting an unsigned threatening letter falls within the other classes of misdemeanors made felonious by N.C.G.S. § 14-3(b). We conclude that it does not.
In State v. Hageman, 307 N.C. 1, 296 S.E.2d 433 (1982), this Court considered whether the attempted receipt of stolen property fell within one of the three classes of misdemeanors made felonies by N.C.G.S. § 14-3(b). We first determined that the offense of attempting to receive stolen property is not of such a degrading nature as to be classified as an "infamous" crime under N.C.G.S. § 14-3(b). 307 N.C. at 9, 296 S.E.2d at 439. We next considered whether the offense could fall within the remaining two classes. In construing the meaning of the words "done in secrecy and malice" and "with deceit and intent to defraud", as used in the statute, we adopted that part of the dissent of Justice Ervin in State v. Surles, 230 N.C. 272, 284, 52 S.E.2d 880, 888 (1949), where he wrote:
When the Legislature used the words "done in secrecy and malice, or with deceit and intent to defraud," to describe the second and third classes of aggravated offenses included in the statute now codified as G.S. 14-3, its manifest purpose was to describe offenses in which either secrecy and malice, or the employment of deceit with intent to defraud are elements necessary to their criminality as defined by law.
307 N.C. at 9, 296 S.E.2d at 438-39. We then held that the offense of attempted receipt of stolen property did not include secrecy, malice, deceit or intent to defraud as necessary elements of the crime.
In determining whether a misdemeanor is an offense "done in secrecy and malice," then, the courts must apply a definitional test and determine whether both "secrecy and malice" are necessary or inherent elements of the offense. This approach is consistent with the general rule that criminal statutes are to be strictly construed against the State. State v. Hageman, 307 N.C. at 9, 296 S.E.2d at 438; State v. Ross, 272 N.C. 67, 157 S.E.2d 712 (1967). Further, this approach is mandated by Hageman.
Having set forth the proper test, we conclude that the offense of transmitting unsigned threatening letters does not fall within that class of offenses which are by definition "done in secrecy and malice" and, therefore, felonies. Secrecy is not an element inherent in the offense. Secrecy is defined as "the habit or practice of keeping secrets or maintaining privacy or concealment." Webster's Ninth Collegiate Dictionary, 1061 (1984). Although N.C.G.S. § 14-394 requires that the threatening letters be unsigned, it does not require that the sender have maintained privacy or concealed his identity in order to be convicted. The sender could transmit an unsigned threatening letter while at the same time exposing his identity. The threatening letter could contain clues allowing for the *473 unmistakable identification of the sender, such as personal facts and recognizable handwriting. Likewise, the sender could hand deliver the unsigned letter thereby destroying any possibility of anonymity and secrecy. The sender could easily violate N.C.G.S. § 14-394 by transmitting an unsigned threatening letter without maintaining secrecy. Therefore, we conclude that the offense of transmitting unsigned threatening letters does not by definition include the elements of secrecy and malice.
For similar reasons, the offense of transmitting unsigned threatening letters does not fall within the third class of misdemeanors made felonious by N.C.G.S. § 14-3(b). It is entirely possible for such an offense to be committed without "deceit and intent to defraud." Therefore, such offenses are not by definition done "with deceit and intent to defraud" and are not elevated to the level of felonies on that basis.
A prosecutor has neither the discretion nor the authority, under either N.C. G.S. § 14-394 or N.C.G.S. § 14-3(b), to charge a person with feloniously transmitting unsigned threatening letters. The trial court erred in the present case by entering its judgment punishing the defendant as a felon under N.C.G.S. § 14-3(b).
For the foregoing reasons, the trial court's judgment sentencing the defendant as a felon must be vacated. The case must be remanded to the Superior Court, New Hanover County, for judgment and sentencing as a misdemeanor pursuant to N.C. G.S. § 14-3(a). State v. Hageman, 307 N.C. 1, 10, 296 S.E.2d 433, 439 (1982). Accordingly, the decision of the Court of Appeals is reversed, and the judgment of the trial court is vacated. This case is remanded to the Court of Appeals for its further remand to the Superior Court, New Hanover County, for further proceedings consistent with this opinion.
REVERSED, JUDGMENT VACATED, AND REMANDED.
MEYER, Justice, concurring.
Although I agree with the result reached by the majority, I cannot subscribe to its rationale. The "definitional test" so readily adopted by the majority to determine whether a misdemeanor may be "elevated to the level of felon[y]" raises the very constitutional principles the majority refuses to address and its application defies logic and common sense.
This case requires the construction of several statutes and therefore requires an examination of legislative intent. In re Hardy, 294 N.C. 90, 240 S.E.2d 367 (1978). Legislative intent may be ascertained from the words as well as the nature and purpose of the statute and the consequences which would follow from a construction one way or another. Campbell v. Church, 298 N.C. 476, 259 S.E.2d 558 (1979).
The substantive offense with which the defendant was charged is set out in N.C. G.S. § 14-394:
It shall be unlawful for any person,... under whatever name styled, to write and transmit any letter, note, or writing... without signing his ... true name thereto, threatening any person ... with any personal injury or violence or ... using ... any language or threats of any kind ... calculated to intimidate or place in fear any such persons ... as to their personal safety ..., or using vulgar or obscene language, or using such language which if published would bring such persons into public contempt and disgrace, and any person ... violating the provisions of this section shall be fined or imprisoned, or both, in the discretion of the court.
N.C.G.S. § 14-394 (1981).
The offense described by the words of that statute is a misdemeanor by operation of N.C.G.S. § 14-1 (an offense is a misdemeanor unless (1) it was a felony at common law, (2) it is punishable by death, (3) it is punishable by imprisonment in the state prison, or (4) it is denominated as a felony by statute). See also State v. Robbins, 253 N.C. 47, 116 S.E.2d 192 (1960). However, N.C.G.S. § 14-394 does not prescribe "specific *474 punishment." Section 14-394 is, therefore, "a misdemeanor offense as to which no specific punishment is prescribed." N.C.G.S. § 14-3(b) (1981). That latter statute provides that violators of such offenses shall "be guilty of a class H felony" if such misdemeanor offenses "be infamous, done in secrecy and malice, or with deceit and intent to defraud." Id. (emphasis added).
The words of § 14-3(b) call for two different tests, depending upon which of the three prongs is being considered. A "definitional test" is applied in order to determine, for purposes of § 14-3(b), if an offense "be infamous." The definitional test requires an examination of the nature of the offense itself without consideration of the circumstances under which it was committed. See, e.g., State v. Mann, 317 N.C. 164, 345 S.E.2d 365 (1986); State v. Parker, 262 N.C. 679, 138 S.E.2d 496 (1964); State v. Spivey, 213 N.C. 45, 195 S.E. 1 (1938). The test is objective; an offense either "be infamous" or not. I agree with the majority that transmitting unsigned threatening letters is not infamous as that legal concept has been variously defined. See, e.g., State v. Surles, 230 N.C. 272, 52 S.E.2d 880 (1949) (Ervin, J., dissenting).
The second and third prongs of § 14-3(b) call for an entirely different inquiry. The words of that statute ask whether the offense was "done in secrecy and malice, or [done] with deceit and intent to defraud." Whether or not an act was done in some specific manner or done with a specific state of mind depends upon subjective factors to be examined on a case-by-case factual or "transactional" basis.
All but two of the cases cited by the majority in support of its blanket adoption of a "definitional test" for § 14-3(b) are cases examining the first prong of § 14-3(b): whether an offense "be infamous." The majority opinion in State v. Surles, 230 N.C. 272, 52 S.E.2d 880, although concerned primarily with the "infamous" nature of attempted burglary, notes almost in passing that "[s]ecrecy is implicit in an act which must be done in the nighttime." Id. at 277, 52 S.E.2d at 884. The only other case cited by the majority in which the second or third prong was the basis of decision was State v. Page, 32 N.C.App. 478, 232 S.E.2d 460, disc. rev. denied, 292 N.C. 643, 235 S.E.2d 64 (1977), in which the Court of Appeals held that "[a]ny attempt to obtain property by false pretenses necessarily is done with intent to deceive. By its plain language G.S. 14-3(b) makes any attempt to obtain property by false pretenses a felony." Id. at 481, 232 S.E.2d at 462.
By adopting a definitional test for the application of the second and third prongs of § 14-3(b), the majority has, in essence, held that, although the legislature might define as a misdemeanor a substantive offense which includes as essential elements that it was committed in secrecy and malice, the offender may be convicted of a class H felony by superimposing § 14-3(b), depending on whether or not the prosecutor elects to punish the offender as a felon or is aware that such an "elevation" is possible. The definitional application of the latter two prongs of § 14-3(b) would require the prosecutor merely to prove the essential elements of the substantive statutory misdemeanor in order to convict the defendant of a class H felony. If a prosecutor were not aware of § 14-3(b) or elected for whatever reason not to employ it, he or she would proceed toward a misdemeanor conviction on the face of the plain words of the substantive statute. This amounts to a situation in which the identical conduct of a defendant may result in his conviction either for a two-year misdemeanor or a presumptive three-year felony, depending solely on the unchecked discretion of the prosecutor or his unfamiliarity with § 14-3(b). It is inconceivable to me that our legislature intentionally would define specific conduct as a misdemeanor in one breath and, in the next, provide that it be punishable as a class H felony.
A hypothetical example of the operation of the majority's reasoning might be helpful:
*475 Statute X sets out the following elements of a misdemeanor but does not provide for specific punishment:
(1) Taking and carrying away
(2) the family pet
(3) of another
(4) in secrecy
(5) and with malice.
Because the defendant is angry with his neighbors for playing their stereo too loud, he enters the yard of his neighbor at night wearing dark clothing and a mask and places the neighbor's family pet, Fifi the Poodle, in a burlap sack, carries it away, and releases it in the next county. Defendant is arrested and charged, pursuant to Statute X and § 14-3(b).
If the prosecutor proves each and every element of the misdemeanor defined in Statute X, defendant, by the majority's interpretation of § 14-3(b), is guilty of a class H felony. By this interpretation, the majority holds that the legislature has defined the above conduct as a substantive misdemeanor, yet it has provided that one who violates the substantive statute is guilty of a class H felony by operation of a non-substantive statute, § 14-3(b), if the prosecutor proves no more than each essential element of the substantive misdemeanor!
It defies logic and common sense to hold that the legislature intended this result. If the legislature intended that violators of Statute X be convicted as class H felons, why would it label the conduct proscribed by Statute X as a misdemeanor? I believe that the legislature intended to raise to the level of a felony only those misdemeanors which do not have as necessary elements secrecy and malice or fraud and deceit, but which are "done" with those additional characteristics, i.e., in the manner described in either the second or third prong of § 14-3(b).
Beyond the incongruous result of the majority's interpretation, it squarely raises constitutional issues of due process and questions of statutory ambiguity raised by the defendant in the instant case yet found by the majority unnecessary to address.
The majority's interpretation of the operation of § 14-3(b) would allow a prosecutor arbitrarily to elect to pursue a felony conviction for an offense, defined by the substantive statute as a misdemeanor, which requires proof of the very elements by which it may be "elevated" to felony status. There would be no substantive distinction between the statutorily defined misdemeanor and its "elevation" to a class H felony by operation of § 14-3(b). Viewed another way, every misdemeanor which contains the elements of "secrecy and malice," but for which specific punishment is not prescribed, automatically becomes a class H felony, despite the legislative designation of the offense as a misdemeanor; the misdemeanor designation is meaningless. I believe that such a scheme raises serious constitutional questions about vagueness, ambiguity, and notice of how prohibited conduct is punishable.
As chronicled in Justice Ervin's lengthy dissent in State v. Surles, 230 N.C. 272, 52 S.E.2d 880, § 14-3(b) is of ancient origin; its ancestors have been applied in situations no longer a part of our criminal justice system. It is a vestige of the common law which provided no specific punishment for attempts to commit well-recognized criminal offenses. See id. at 279, 52 S.E.2d at 885. I admit that I question its modern viability. However, assuming its constitutionality as well as its viability, I perceive that if § 14-3(b) were to be applied to a violation of N.C.G.S. § 14-394, it would operate as follows:
Section 14-394, standing alone, is a general misdemeanor by operation of § 14-1. Section 14-394 does not contain as essential elements that the prohibited act be committed in secrecy or with malice. For that reason, a prosecutor may elect to charge an offender with a misdemeanor violation and, at trial, must prove only each and every essential element set out in § 14-394. Upon conviction, the offender will be guilty of the general misdemeanor. However, a prosecutor, upon a belief that the offense described in § 14-394 was committed in secrecy and with malice, may *476 indict an offender with a felony violation of that statute by operation of § 14-3(b). The indictment would have to allege that it charged a felony violation of § 14-394 because it was committed in secrecy and with malice. At trial, the prosecutor would be required to prove beyond a reasonable doubt each and every element of the offense described in § 14-394 as well as the additional elements of secrecy and malice. Upon such proof, the offender would stand convicted of a class H felony and be punished accordingly. Failure of the prosecutor to prove the additional elements of secrecy and malice would result in a conviction of the lesser-included misdemeanor, § 14-394. The felony offense and the misdemeanor offense do not punish identical conduct differently; a felony conviction requires proof of two additional elements.
This procedure is not susceptible of an equal protection or due process challenge for the same reasons that an indictment for first-degree burglary as opposed to one for second-degree burglary is not constitutionally infirm. First-degree burglary involves the allegation and proof of the additional element that the house was actually occupied at the time of the crime; the "degree" of the offense charged and tried depends upon the facts of the case. Here, if the facts proved a secret and malicious transmission of unsigned threatening letters, a felony indictment and conviction would be appropriate. Because I believe that the facts proved in the instant case failed to show secrecy, at least, I agree that this defendant was wrongly convicted of the felony.
In summary, I believe that the majority reached the right result for the wrong reasons. I also believe that the confusion engendered by § 14-3(b) bears witness to the need for legislative reconsideration in light of its continuing attempts to provide a sensible, systematic codification of our criminal law and an attendant cohesive, comprehensive scheme for the punishment of criminal offenses. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260910/ | 632 F.Supp. 607 (1986)
The WASHINGTON POST, Plaintiff,
v.
UNITED STATES DEPARTMENT OF STATE, Defendant.
Civ. A. No. 83-1109.
United States District Court, District of Columbia.
April 14, 1986.
*608 Boisfeuillet Jones, Jr., Carol D. Melamed, Patrick J. Carome, Washington, D.C., for plaintiff.
*609 Jeffrey S. Paulsen, Barbara Gordon, U.S. Dept. of Justice, Civ. Div., Washington, D.C., for defendant.
MEMORANDUM
JOHN LEWIS SMITH, Jr., District Judge.
Plaintiff, The Washington Post, seeks access under the Freedom of Information Act, 5 U.S.C. § 552, to certain documents created by members of former Secretary of State Alexander Haig's staff during Secretary Haig's tenure as Secretary of State. Presently before the Court are cross-motions for summary judgment.
I.
The Freedom of Information Act ("FOIA" or "Act"), 5 U.S.C. § 552, empowers federal courts to order the disclosure of "agency records improperly withheld" by an "agency" from an individual requesting access. § 552(a)(4)(B). The requirements of this provision are jurisdictional. Disclosure of materials from an agency subject to the FOIA may only be obtained upon a "showing that [the] agency has (1) `improperly'; (2) `withheld'; (3) `agency records.'" Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 968, 63 L.Ed.2d 267 (1980).
This case confronts the third-prong of the requirement. At issue is whether a set of documents compiled daily within the Office of the Secretary of State during the tenure of Secretary of State Alexander M. Haig, Jr., and consisting of a contemporaneously generated record of official meetings, acts, and telephone calls, may be deemed an "agency record" subject to disclosure under the Act. Before turning to the merits, a review of the principal undisputed facts will be useful.
A. Procedural History
In 1982, following the announcement of Secretary Alexander Haig's decision to resign, representatives of The Washington Post sought access under the FOIA to:
All meeting logs, telephone call logs, daily schedules, trip itineraries, personal calendars and diaries from January 1, 1981 to the present relating to meetings, telephone calls, conferences and activities of Secretary of State Alexander M. Haig., Jr.
Because Secretary Haig's decision had only recently been announced, the request specifically asked that the Department of State retain copies of all records complying with the request upon Secretary Haig's departure from office. Plaintiff further requested that the Department invoke its discretion to release any materials deemed by the agency to be exempt from disclosure under the Act.
After protracted dispute over the parameters of the request, the facts of which are not important to the present inquiry, the Department of State released copies of the Secretary's daily schedules and trip itineraries, and simultaneously denied access to all materials concerning meeting logs, telephone call logs, and personal calendars. It was the opinion of the Information and Privacy Coordinator at the Department of State that these latter materials were "personal records" of the Secretary and not subject to disclosure under the Act. The State Department also informed plaintiff that Secretary Haig did not maintain a personal diary and thus no document meeting this definition was available for disclosure.
Following the exhaustion of administrative remedies, plaintiff brought the present action in District Court. Thereafter, proceedings in the case were stayed pending the decision in Bureau of National Affairs, Inc. v. United States Department of Justice, 742 F.2d 1484 (D.C.Cir.1984), a case then on appeal to the District of Columbia Circuit which presented the questions whether telephone message slips and appointment calendars prepared for the personal convenience of Assistant Attorney General William Baxter were "agency records" under the FOIA. That case held, on the basis of the facts presented, that the telephone message slips and appointment calendars were not "agency records" for *610 purposes of the FOIA. 742 F.2d at 1495-96.
B. Records of Schedule
Following the decision in Bureau of National Affairs, plaintiff dropped its request for personal diaries and telephone message slips and elected to pursue only those documents known as the "records of schedule".[1] The "records of schedule" are comprised of typewritten transcriptions of documents compiled on a daily basis by members of the staff of former Secretary of State Alexander Haig. It is undisputed that the records of schedule were not created at the request of Secretary Haig. The Secretary did not have direct access to the records and, in fact, was never made aware of their existence. Rather, the decision to create the records was initiated by a suggestion from Secretary Haig's receptionista suggestion which was approved by the Executive Assistant to the Secretary.
The creation and maintenance of the records of schedule were effected through the combined efforts of Secretary Haig's personal secretary and receptionist. Essentially, the two staff members maintained daily handwritten logs chronicling the official and unofficial activities of the Secretary and containing information gleaned by their personal monitoring of events occurring both within and outside the Office of the Secretary of State. These logs included information on all anticipated and unanticipated meetings attended by Secretary Haig, both within and outside the Department of State, as well as information concerning the exact time, date and place of the meeting, and the identities of the participants. The logs were also maintained to keep a record of all telephone calls placed to the Secretary and the time and date of the call. Other staff members occasionally provided the information when Secretary Haig's personal secretary and receptionist were either unavailable or unaware of the transaction.
The logs were later transcribed at the close of each day and combined to form a "record of schedule", a process which frequently mandated that the two staff members remain after hours. During periods of heavy work volume, the records were not transcribed until days or weeks after the events. This combined record, as typewritten and supplemented, was then stored in a central filing cabinet, which contained the official "daily agenda" of the Secretary as well as souvenirs and gifts for official visitors.
Representatives of The Washington Post now seek disclosure of the records of schedule on the grounds that the requested documents are "agency records" within the meaning of section 552(a)(4)(B) of the Freedom of Information Act. The Department of State vigorously denies the assertion and argues that the requested documents are "personal work aids" of Secretary Haig and thus not subject to FOIA access within the rationale of Bureau of National Affairs, supra.
II.
It has long been established that the FOIA was enacted in furtherance of the belief that "an informed electorate is vital to the proper operation of a democracy." S.Rep. No. 813, 89th Cong., 1st Sess. 3 (1965), reprinted in Freedom of Information Act Source Book: Legislative Materials, Cases, Articles 38 (Comm. Print 1974) [hereinafter cited as "FOIA Source Book"]. Central to this purpose is the fundamental premise that "the public as a whole has a right to know what its government is doing." FOIA Source Book at 264. Congress found that this right can be maintained only where an informed electorate is provided with the opportunity to oversee both the actions and decisions of public officials and agencies. SDC Development Corp. v. Mathews, 542 F.2d 1116, 1119 (9th Cir.1976).
*611 This right of access to government information, however, is not absolute. Although Congress sought to expand public access, it limited that access to "agency records". Forsham v. Harris, 445 U.S. 169, 178, 100 S.Ct. 977, 983, 63 L.Ed.2d 293 (1980). A government agency cannot be held accountable for information under the FOIA which the agency has neither created nor possessed. Id. at 182, 100 S.Ct. at 985. Rather, "[t]he use of the word `agency' as a modifier demonstrates that Congress contemplated some relationship between an `agency' and the `record' requested under the FOIA." Id. at 178, 100 S.Ct. at 983. Defining this relationship, however, is complicated by the absence of a concise and well-defined body of case law. Moreover, the problem is further exacerbated by the absence of legislative guidance as to the precise meaning of the term "agency records". "As has often been remarked, the Freedom of Information Act, for all its attention to the treatment of `agency records,' never defines that crucial phrase." McGehee v. Central Intelligence Agency, 697 F.2d 1095, 1106 (D.C.Cir.1983) (footnotes omitted), modified in other respects, 711 F.2d 1076 (1983).
Nevertheless, the existing body of legal precedent does provide a set of parameters useful in focusing the initial inquiry. Among these guidelines is the central principle that the FOIA not be construed to encompass documents to which an agency merely has an unrestricted, but unexercised, right to obtain. Forsham, 445 U.S. at 186, 100 S.Ct. at 987. The government has access to virtually unlimited documents and a contrary holding would place an unmanageable burden upon government agencies faced with corresponding demands for documents not intended to be reached under the FOIA. Id. at 186 n. 17, 100 S.Ct. at 987 n. 17. In addition, the FOIA does not require that an agency receiving a FOIA request actually create responsive documents. Rather, the mandatory creation of government records is governed by the provisions of the Federal Records Act. Kissinger, 445 U.S. at 152, 100 S.Ct. at 969 (citations omitted).
In summary, Congress contemplated that government agencies either obtain or create the requested records as a prerequisite to the documents becoming "agency records" within the meaning of the FOIA. Forsham, 445 U.S. at 182, 100 S.Ct. at 985. This nexus must be established before the tripartite jurisdictional test can be satisfied. Where the requested documents have been obtained or created by the receiving agency, the FOIA provides that the documents be made available to any member of the public unless specifically exempted by the Act itself. See Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir.1973).
The FOIA thus "represents a carefully balanced scheme of public rights and agency obligations designed to foster greater access to agency records than existed prior to its enactment." Kissinger, 445 U.S. at 150, 100 S.Ct. at 968 (1980). There are, however, "no inherent incentives that ... affirmatively spur government agencies to disclose information." Vaughn, 484 F.2d at 826. Therefore, balanced against this required nexus is the countervailing concern that government agencies not be allowed to defeat the purpose of the FOIA by artificially manipulating its terms. Mindful of this overarching admonition, the courts have consistently avoided the establishment of "bright-line" jurisdictional tests out of fear that such tests would provide a simple expedient for removing important government records from the intended coverage and presumptive disclosure provisions of the Act. See Bureau of National Affairs, 742 F.2d at 1493; see also McGehee, 697 F.2d at 1109 n. 63. Moreover, these tests are incapable of "precise definition and may well change as relevant factors assume varying importance from case to case." Crooker v. United States Parole Commission, 730 F.2d 1, 5 (1st Cir.1984), cited with approval in Bureau of National Affairs, 742 F.2d at 1490.
Thus posited, the Court is directed to conduct an examination into the "totality of the circumstances surrounding the *612 creation, maintenance, and use ..." of the documents to determine whether the material is, in fact, subject to the FOIA. Bureau of National Affairs, 742 F.2d at 1492-93. Resolution of this inquiry requires that the Court employ a bifurcated analysis. First, the Court is instructed to examine the "totality of the circumstances" underlying the creation of the document by reference to a four-factor test. This inquiry involves consideration as to whether:
(1) the document was generated within the agency seeking to avoid disclosure;
(2) the document has been placed into agency files;
(3) the document is within the agency's control;
(4) the document has been used by the agency for an agency purpose.
Id. at 1494. Second, the Court may draw guidance from the treatment of the disputed documents under the provisions of the various federal records management statutes. See 44 U.S.C. § 2901 et. seq. If the documents are deemed to constitute "agency records" under the applicable definitions provided in the records statutes, then this determination lends support to the conclusion that the materials are similarly "agency records" for purposes of the FOIA. See Forsham, 445 U.S. at 182-84, 100 S.Ct. at 985-86; Bureau of National Affairs, 742 F.2d at 1493.
Before proceeding to the application of the relevant criteria to the facts of the present case, two preliminary considerations remain to be addressed. First, throughout the course of these proceedings, counsel for the defendant has repeatedly emphasized that the records of schedule were not created in response either to statute or internal agency regulation. In seeking to have the creation of the records of schedule characterized as a purely "voluntary" act, counsel would invite the Court to place undue reliance upon a single determinative factorspecifically, the proposition that documents created in the absence of legislative or agency mandate cannot rise to the status of "agency records" under the FOIA. However, nothing in the FOIA suggests that the Act was intended to encompass only those documents created by mandate of law.[2] Rather, the Act simply requires that an agency disclose those "documents which the law requires the agency to prepare or which the agency has decided for its own reasons to create." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161-62, 95 S.Ct. 1504, 1521-22, 44 L.Ed.2d 29 (1975) (emphasis added). The central inquiry remains "whether, when an employee creates a document, that creation can be attributed to the agency under the FOIA." Bureau of National Affairs, 742 F.2d at 1492.
Second, although the defendant correctly asserts that the mere physical location of the disputed materials within the offices of the Secretary of State does not warrant the conclusion that the documents be deemed "agency records", this observation adds little to the present inquiry. The same could be stated with respect to every document located within the four walls of the agency and yet many of these documents constitute admitted agency records subject to the FOIA. The principal utility of this observation arises in those cases addressing the requirement that records originating outside of the agency receiving a FOIA request *613 first be obtained by the agency before the agency will be held accountable under the Act. See, e.g., Kissinger, 445 U.S. at 157, 100 S.Ct. at 972; Wolfe v. Department of Health and Human Services, 711 F.2d 1077, 1079-82 (D.C.Cir. 1983). In contrast to this line of cases, the critical factor here is that the disputed documents were originally generated within the receiving agency by agency employees. Thus, the significance of this consideration is lessened and the inquiry must proceed from a different posture.
A. Four-factor Analysis
Turning to the application of the criteria delineated in Bureau of National Affairs, the Court concludes that the responsive materials constitute "agency records" within the meaning of the FOIA in light of the "totality of circumstances" surrounding their creation, maintenance, and use. First, there is no dispute that the "records of schedule" were generated within the agency seeking to avoid disclosure. The documents were compiled by agency employees as part of their daily work routine using agency provided materials and resources.[3] The significance of this creation, as discussed previously, is not diminished by the "voluntary" initiative manifested by the staff members in generating the documents.[4]
Second, the materials were placed into agency files. The undisputed facts reveal that the "records of schedule" were stored in a central filing cabinet accessible to members of the Secretary's staff. This filing cabinet contained, among other items, the official daily agenda of the Secretary which frequently contained classified information concerning the Secretary's schedule and anticipated activities. Moreover, the documents were kept separate from the personal files and records of Secretary Haig.[5]
Third, the Court finds that the records are within the control of the agency. The argument of defense counsel that control is lacking in that the records could be disposed of at the discretion of the staff members is without merit. The fact that the government failed to exercise its authority under the applicable statutes and regulations, see 44 U.S.C. § 3301 et seq.; General Services Administration General Records Schedule 23 (1982), to retain and preserve the records of schedule is not dispositive. As stated by the Court of Appeals in Bureau of National Affairs:
In the context of these cases, however, the question is whether the employee's creation of the documents can be attributed to the agency for the purposes of FOIA, regardless of whether the agency requires employees to retain the documents. The government is correct, however, in one respect. Because FOIA does not require an agency to create or obtain a record, so long as the records disposal regulations permit destruction of "non-record materials" at the discretion of an agency or agency employee, documents will be available under FOIA solely based on whether an individual has chosen to keep those documents.
742 F.2d at 1495.[6] Here the Department of State has not only reviewed the documents *614 under the applicable records disposal regulations but has also retained a copy of the documents in view of this litigation. The government therefore has control over the documents.
Fourth, the Court concludes that the nonuse of the records of schedule by the Secretary, under the facts of this case, further warrants the conclusion that the materials be deemed subject to the FOIA. Although it has been stated that the mere right of access to documents, without more, does not transform otherwise non-agency materials into "agency records" under the FOIA,[7] the functional significance of this observation is limited where the documents are generated by employees of the agency receiving the request. In the latter instance, the courts are not confronted with issues as to whether the agency has obtained "control" over records originating outside of the agency. The requirement of a threshold "nexus" between the agency and the requested documents beyond the mere coincidence of location is satisfied because the records were originally prepared by agency employees. The issue of agency use thus becomes more focused.[8]
Furthermore, the foregoing is true notwithstanding the fact that the Court of Appeals in Bureau of National Affairs singled out the use of disputed documents as a factor in resolving record disputes under the FOIA.[9] The Bureau of National Affairs Court was confronted with a case involving verified incidents of personal use. However, in contrast to the telephone message slips and personal appointment calendars found not to constitute agency records in that case, the record before the Court reveals that the records of schedule were never used for the personal convenience of anyone. More importantly, Secretary Haig, the official for whose personal use the records were purportedly created, was never apprised of their existence.
Therefore the essential task before the Court is to determine what significance, if any, is to be attached to the non-use of the documents. Having examined the opinion in Bureau of National Affairs and having weighed the competing considerations, the Court concludes that the factor of non-use weighs in favor of agency record status. First, government agencies inevitably produce reams of documents on any given day that are subsequently filed and forgotten. The importance of these documents to the conduct of agency business surely is not diminished by the vagaries inherent in their eventual use or non-use. Indeed, the importance of the materials to agency operations is, in the first instance, readily apparent from the fact that agency employees have taken the time and effort to generate, compile, and store the documents for possible future reference. Moreover, the facts *615 of this case reinforce this observation. In contrast to the documents found not to constitute agency records in Bureau of National Affairs, the records of schedule: (1) contain an accurate recital of events as they actually transpired; (2) frequently contain substantive information; (3) were systematically transcribed and compiled to form a single record; and (4) were chronologically filed and maintained on a continuing basis.[10] The creation, maintenance, and storage of the records of schedule thus evidence numerous indicia of record-keeping extraneous to the use of the documents as mere personal work aids.
Second, it has been repeatedly emphasized that excessive reliance upon a use test can prove illusory. The difficulty encountered by a FOIA requestor in discovering the contents of requested documents, let alone the agency's treatment of the materials, poses difficulties in proving actual use that are not easily surmounted.[11] The use test relied upon in Bureau of National Affairs owes its primary significance to the presence of incidents of personal use. The use of documents solely for personal convenience strongly reinforces the conclusion that disputed documents are not agency records subject to the FOIA. However, the converse is not true. The factor of non-use weighs in favor of record status.[12]
B. Federal Records Statutes
The Court's conclusion that the records of schedule constitute "agency records" for purposes of the FOIA is further supported by the applicable definitions provided in the various federal records statutes. Although Congress failed to define agency records in the FOIA, it did provide definitions in these statutes. While these definitions are not dispositive of the proper interpretation of the term under the FOIA, the Court of Appeals for this Circuit has specifically noted the relevance of the definition of agency records provided in the Federal Records Management Act to document status disputes under the FOIA. Bureau of National Affairs, 742 F.2d at 1493. The applicable definition of "records" provided by the Federal Records Management Act, 44 U.S.C. § 3301 defines "records" as including:
all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transactions of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them.
44 U.S.C. § 3301 (emphasis added). In this regard, the Court notes that the records of schedule serve as evidence of the procedures *616 and operations of the agency and that they were made by a federal agency in connection with the transaction of public business. In addition, General Records Schedule 23, in force at the time of the initial FOIA request included among records materials subject to the Federal Records Management Act all "logs ... and other records documenting meetings, appointments, telephone calls, trips, visits, and other activities of Federal Employees" containing "substantive" information "which has not been incorporated into memoranda, reports, correspondence, or other records included in official files." Similarly, these regulations provide additional support for the conclusion that the records of schedule are agency records for purposes of the FOIA.
III.
The conclusion that the records of schedule constitute "agency records" subject to disclosure under the FOIA is consistent with case law and the express purpose of the Act. Nothing in this opinion should be construed to contravene the holding in Bureau of National Affairs that personal papers created solely for the personal use and convenience of the author are not encompassed by the FOIA. 742 F.2d at 1493. In view of the foregoing, the Court concludes, that where the creation and maintenance of a document evinces numerous indicia of agency recordkeeping, under circumstances totally lacking in incidents of personal use, the document may be deemed subject to disclosure under the Act. The Court's decision that the records of schedule are subject to disclosure does not limit the defendant's right to withhold portions of the documents under a valid claim of statutory exemption pursuant to the Act.
Accordingly, defendant's motion for summary judgment is denied and plaintiff's cross-motion for summary judgment is hereby granted.
NOTES
[1] Plaintiff's Memorandum of Points and Authorities in Support of Plaintiff's Cross-Motion for Summary Judgment at 2 n. 1.
[2] Nor is the Court inclined to graft such a requirement to the existing case law. The Bureau of National Affairs opinion does not refer to such a criteria and its application would disregard the appellate court's concern that government agencies not be allowed to defeat the objectives of the FOIA through the artful drafting of agency regulations. 742 F.2d at 1493. Similarly, the Court also declines to resolve the status of the records solely by reference to the alleged intent of the authors in creating the documents. The authors' perception of the documents as personal work aids or agency records is not controlling. Again, the case law does not provide for such an inquiry and the inevitable result would be to ensnare the courts in the thorny problem of resolving conflicting claims of intent, an area generally inappropriate for summary judgment. See Mazaleski v. Truesdell, 562 F.2d 701, 717 (D.C.Cir.1977) (where motivation and credibility are involved, and the essential facts are solely within the control of the moving party, summary judgment is inappropriate).
[3] Cf. Bureau of National Affairs, 742 F.2d at 1494 (documents found to be generated within the agency where prepared on government time, at government expense and with government materials).
[4] See supra n. 2 and accompanying text.
[5] In this regard it is relevant, though not dispositive, that the staff made no attempt to segregate the materials from those documents used in the daily conduct of agency business, i.e., the daily agendas and official gifts. Cf. Bureau of National Affairs, 742 F.2d at 1495 (daily agenda circulated to staff members and stored in desk drawer of personal secretary found to constitute agency records) with Wolfe, 711 F.2d 1077 (D.C. Cir.1983) (report of President-elect Ronald Reagan's transition team stored in office of Department's Chief-of-Staff in glass bookcase marked "personal" found not to constitute agency records). The mere fact that staff members occasionally found it convenient to store articles of personal property (purses of staff employees) in the same cabinet does not change the status of the files.
[6] In rejecting the government's invitation to establish agency possession and control as the litmus test of "agency records" status under the FOIA in Bureau of National Affairs, the Court commented that:
Here, reliance solely on a possession or control test could be the more restrictive approach. An "agency" may choose not to assert any control over a particular document, but an employee who created that document for the express purpose of enabling him to perform his duties certainly retains possession and control over the document. The issue is not simply whether the agency as an institution has taken steps to "obtain" the document. Rather, the question presented by these cases is whether, when an employee creates a document, that creation can be attributed to the agency under FOIA.
742 F.2d at 1492 (emphasis added).
[7] See, e.g., Forsham, 445 U.S. at 186, 100 S.Ct. at 987.
[8] In discussing the propriety of a use test in Bureau of National Affairs, the Court of Appeals cited with approval Judge Prentiss Marshall's opinion in Illinois Institute for Continuing Legal Education v. United States Department of Labor, 545 F.Supp. 1229 (N.D.1982). That opinion noted that the requisite nexus between an agency and a requested record is present only where the document is "prepared or actually used by an agency official in connection with his duties." Illinois Institute, 545 F.Supp. at 1234-35, cited with approval in Bureau of National Affairs, 742 F.2d at 1491.
[9] 742 F.2d at 1490. The specific inquiry calls for consideration of whether the documents have been used by the agency for an agency purpose. As discussed in the text infra, the Court does not conclude that the agency must actually use the document to establish that the requested materials are agency records. Instead, the creation and filing of documents absent indicia of personal use may constitute the "use" of agency records for an agency purpose.
[10] Cf. Bureau of National Affairs, 742 F.2d at 1495-96 (telephone message slips retained for "short periods of time" and disposed of on intermittent and "haphazard" basis, found not to comprise agency records; personal appointment calendars not distributed to staff members but retained solely for the personal convenience of individual officials, and containing information identical to that in previously released agency records, found not to constitute agency records). The status of these records is not otherwise changed because of the inclusion of information concerning the personal activities of Secretary Haig. This information can readily be segregated and deleted from the records prior to disclosure. Bureau of National Affairs, 742 F.2d at 1496.
[11] See McGehee v. Central Intelligence Agency, 697 F.2d 1095, 1109 n. 63 (D.C.Cir.1983).
[12] In light of the undisputed non-use of the documents, the only viable alternative would be for the Court to attach no significance to the non-use of the records. Otherwise, reluctant officials would negate the effect of this factor by failing to keep records of actual use. See McGehee, 697 F.2d at 1109 n. 63. The Court would nevertheless conclude that the records of schedule constitute "agency records" after weighing the remaining factors. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260930/ | 632 F.Supp. 641 (1986)
The TRUSTEES OF the AMALGAMATED COTTON GARMENT AND ALLIED INDUSTRIES FUND, Plaintiff,
v.
BALTIMORE SPORTSWEAR, INC., Defendant.
No. 84 Civ. 1602 (RO).
United States District Court, S.D. New York.
April 15, 1986.
Mark Schwartz, New York City, for plaintiff.
Richard E. Schrier, Garden City, N.Y., for defendant.
OWEN, District Judge.
This ERISA action stems from a dispute between a multiemployer retirement plan and an employer which is in the process of going out of business. Plaintiff, the retirement plan, sues the employer to recover the so-called "withdrawal liability" that an employer is required to pay a retirement plan upon withdrawal.
Under the provisions of the Multiemployer Pension Plan Amendments Act (MPPAA), 29 U.S.C. § 1381 et seq., an employer that leaves a pension plan is required to pay a certain sum of money (the *642 "withdrawal liability") in order to cover presently vested, but not yet funded, pension rights of the employer's employees or former employees.
In order to protect the retirement plans, the congressional scheme requires that the plan in the first instance calculate the amount and payment terms of the withdrawal liability pursuant to statutory guidelines. The withdrawing employer then may dispute this amount, in arbitration, but it is required to continue to pay the quarterly installments pending the results of the arbitration. 29 U.S.C. § 1401(d).
To protect the employer, the amount of each quarterly payment is related to the size of the payments the employer made to the plan prior to its withdrawal, rather than to the total amount due.
In the instant action, it is undisputed that defendant, the employer, has not paid any of the quarterly payments due on its withdrawal liability as calculated by plaintiff, the pension plan. Furthermore, while defendant formally requested arbitration, it never prepared the submission statement required to actually initiate arbitration. Finally, according to defendant, its net worth has dropped by half, from $50,000 to $25,000, during the pendency of this suit. Plaintiff therefore moves for partial summary judgment for the overdue quarterly payments.
Defendant responds that it should not be required to pay the withdrawal liability for two reasons. First, the total amount demanded, $105,000, is greater than its net worth ($50,000) as reported in an uncertified statement of net worth that it supplied to the plan, and thus it will be unable to defend this action if it pays. I cannot give effect to this position. The congressional scheme clearly contemplates precisely this situation and is intended to require the employer to continue making quarterly payments rather than dissipate its assets in other ways (such as the $170,000 which defendant reports paying to its officers last year). In any case, defendant has paid none of the quarterly payments and has not initiated arbitration. Under the circumstances, it should not be heard to complain that payment of its full obligation would be excessive.
Second, defendant claims that 29 U.S.C. § 1405 both limits its liability and is not subject to the arbitration requirement. Therefore, it claims, it need not pay anything currently. Section 1405 limits but does not eliminate the withdrawal liability of insolvent employers undergoing liquidation. The employer here has not alleged either that it is undergoing liquidation or that, in the absence of its withdrawal liability, it is insolvent. Section 1405, therefore, does not apply to this employer.
Even did defendant come under § 1405 and even if under § 1405 it would have a lower total withdrawal liability (also not shown), defendant still would be required to raise this claim in arbitration. Defendant correctly points out that § 1405 is not explicitly listed as covered by § 1401(a)(1)'s arbitration requirement. But see § 1401(a)(3)(A). However, an arbitrator would never be able to determine the total liability of an employer without considering the effect of § 1405. Thus, if § 1405 were not arbitrable, no arbitration would ever be able to go forward until after resolution of a proceeding in the United States Courts. Since that cannot have been the congressional intent, it is clear that the employer is required to present claims under § 1405, like any other defenses it may have, to the arbitrator. Since arbitration not the District Court is the correct forum for resolution of claims under § 1405, I need not even consider whether defendant has presented enough evidence to establish that it is benefited by the clause.
Furthermore, I see no reason, and defendant offers none, to think that Congress meant to exempt this claim alone of all the possible defenses that an employer might raise from the requirement of § 1401(d) that the employer continue to make quarterly payments pending final determination of the total amount due.
Even under the most generous reading of § 1405, this employer owes plaintiff a substantial sum (at least half and probably *643 more of the unfunded vested liability attributable to its employees). Congress has weighed the possible harm to employers of overpayment followed by a refund and determined that this harm is less than the likely damage to the pension plans and the workers who are dependent on them if employers need make no payment until final resolution of all disputes. The statute accordingly requires that defendant make all of its quarterly payments until its total liability is finally determined. If at arbitration it establishes that it has overpaid, the employer will then receive a refund.
Therefore, no justification appearing for the defendant's failure to make any payments at all, partial summary judgment is granted for the delinquent quarterly payments, together with interest, attorneys' fees and costs, as is mandatory under 29 U.S.C. §§ 1451(b) and 1132(g)(2). The cross motion for discovery to help defendant determine whether it will actually benefit from § 1405's limitation is denied as premature since this issue can be raised only in an arbitration proceeding, should defendant chose to proceed in one.
Submit formal order on notice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318753/ | 94 Ga. App. 284 (1956)
94 S.E.2d 160
CITY OF COMMERCE
v.
BRADFORD.
36062.
Court of Appeals of Georgia.
Decided July 11, 1956.
Rehearing Denied July 31, 1956.
*288 R. F. Schuder, Wheeler, Robinson & Thurmond, E. C. Stark, T. J. Syfan, for plaintiff in error.
Kermit C. Bradford, Davis & Davidson, contra.
NICHOLS, J.
1. The defendant City of Commerce made both written and oral motions in the nature of a general demurrer to dismiss the plaintiff's petition, which were overruled by the trial court. It will be noted from the statement of facts that the petition alleges that the planks forming the walkway were defective, in that the ends were eaten by rot and rounded off, but they were well and firmly embedded in the soil until about February 1, 1953, when the city, in scraping the gutter and deepening the ditch at that point, removed the walkway and negligently replaced the three planks "not in the same position or place before occupied, but merely lying loosely upon the top of the piles of dirt. . . It . . . would now rock and roll under use if *289 not embedded in the soil; yet the defendant, through its officers, agents, servants and employees, knowing of the danger incident thereto, failed to . . . securely fasten down said planks." The petition accordingly charges the defendant with actionable negligence in that it did not return these planks to the same security of position that they had before removal by the city, although the appearance to the casual observer would have been the same.
As against general demurrer, the petition sets out a cause of action for the reasons herein specified.
2. It is insisted that the general grounds of the motion for a new trial are meritorious in that the verdict is not supported by evidence, and in this regard counsel for the plaintiff in error rely especially upon Crawford v. Mayor &c. of Griffin, 113 Ga. 562 (38 S. E. 988), wherein the plaintiff, injured by falling through rotten planks in a bridge extending between the street and a sidewalk over a drainage ditch, sought to predicate liability on the city on the ground that the city, which had previously taken up the bridge and replaced it, and had made some repairs on it, was liable for maintenance of a defective bridge. It was there held that the bridge was not a bridge at a regular public crossing and accordingly the city was under no duty to maintain it. If nothing else appeared in the case at bar the Crawford case would of course control, but more than defective maintenance is here alleged against the city. It is further charged that these planks, which were defective because rotten and therefore rounded off at the edges, were in the first instance firmly embedded in the soil so they would not roll with the weight of one walking over them; that they were removed by the city and replaced "without securely fastening them down" and that they accordingly rolled with the weight of the plaintiff and threw her off balance causing her fall. The planks, defective as they were, would not have injured the plaintiff had they been replaced in the soil in the same manner as they were before being removed, and the negligence with which the city is chargeable is negligence in the manner of their replacement. This was pointed out when this case was here before (Bradford v. City of Commerce, 91 Ga. App. 581, 86 S. E. 2d 645) and the evidence as to this allegation of negligence is substantially the same as it was on the former trial, where it *290 was held error to grant a nonsuit because there was in the record testimony substantiating this allegation of negligence. As stated in Jones v. City of Atlanta, 142 Ga. 151 (1c) (82 S. E. 540): "If in the exercise of the corporate powers of the municipality, in widening and changing the grade of one of its streets, the city through its agents and employees acts so negligently as to cause personal injury to one who lives upon a lot abutting on the street being improved, and who is lawfully passing to and from such lot, a cause of action arises to such injured person." There the city, in widening the street, removed a piece of fencing and stood it up in a negligent manner so that it toppled over and injured a person going from her home to the street. There is evidence to support a finding that the insecure position of the planks caused the plaintiff's fall, and that the planks were insecurely placed by municipal employees. Accordingly, the general grounds of the motion for a new trial are without merit. This is true whether or not the petition was duplicities in further attempting to charge the city with negligence in failing to properly maintain its bridges and walkways, and whether or not this allegation of negligence was supported by any proof.
It is further contended that the evidence demands a finding that the plaintiff is precluded from recovery by the provisions of Code § 105-603 in that she failed to exercise ordinary care for her own safety. The evidence in the case shows that while the plaintiff had crossed the walkway safely previously to her fall, and while others had also crossed it safely, nevertheless the plank on which the plaintiff stepped like the other planks had the appearance of offering a safe footing and there was nothing to warn her that it was loose and would roll under her weight. Recognizing the rule stated in Georgia Power Co. v. Maxwell, 52 Ga. App. 430 (3) (183 S. E. 654) that the plaintiff in order to recover must have exercised ordinary care to avoid the consequences of negligence either actually discovered or which in the exercise of ordinary care might have been discovered, there is evidence in the record to sustain a finding that the plaintiff was not put on notice, either at the time she was injured or on a previous crossing, that the plank was defective on the underside so that because not firmly embedded in the soil it would roll with her weight, and that the defendant in replacing the plank did know it was *291 defective on the underside and accordingly should have known that if not firmly embedded it would roll with the weight of a pedestrian. Accordingly, the defendant was not entitled to a directed verdict on the theory that the plaintiff failed to exercise ordinary care for her own safety. It follows that the motion for judgment notwithstanding the verdict was also properly denied.
3. Having held that the petition set forth a cause of action and that the verdict was supported by evidence, it follows that the trial judge did not err in overruling the defendant's motion for a directed verdict and motion for a judgment notwithstanding the verdict, both of which motions were predicated upon the contention that the evidence as to the material issues of the case was insufficient to establish prima facie the essential elements of the right of action asserted in the petition.
4. The first special ground of the motion for new trial excepts to admission of evidence by the surveyor that Mrs. Owens's lot did not extend to the edge of the ditch but that there was a narrow strip of land between her lot and it. The effect of the testimony was to show that the end of the planks from which plaintiff fell did not rest on the Owens property, and there was testimony by the witness also tending to show that the narrow strip was not part of the Owens lot. The evidence was irrelevant because the petition alleged one end of the planks rested on Mrs. Owens's lot, but the objection was not on that ground and the question of relevancy is not before us. "Although there may be a ground of objection to testimony which would have been good if made, yet if the objection made be not good, it will be overruled." Cox v. Cody & Co., 75 Ga. 175 (1a). The objection made was that the testimony tended to vary and contradict the deed under which Mrs. Owens held her property. The evidence was not in conflict with the deed because it did not purport to show that Mrs. Owens's lot did not extend to the street but simply that the street included the narrow strip of land and that the lot adjacent to the street was not at the side of the ditch but several feet therefrom. The evidence was not objectionable for any reason urged and this ground is without merit.
5. At this point we find it convenient to consider special grounds 2 and 3 for the reason that, like the general grounds, they require a thorough perusal of the record. The grounds complain *292 that the verdict was excessive. It is argued that the verdict was for $60,000, when the total amount prayed on account of plaintiff's loss of ability to work and earn money was $50,760, and that reduced to its value at the time the verdict was rendered this sum would be only $22,677.31; that the amount sued for, $50,000, as compensation for pain and suffering should also have been reduced according to mortality tables, and all the sums represented by the verdict together would not amount to the $60,000 awarded; that the plaintiff having recovered more than she sued for, the verdict is excessive. The fallacy of the argument lies in the fact that it cannot be ascertained from the record what portion of the amount recovered for pain and suffering was awarded as compensation for pain up to the time of the verdict or what amount of her recovery was for the pain and suffering she might experience in the future. It is true that it is indicated by the record that her suffering might continue into the future for a considerably longer time than it had existed at the time of the trial. But the jury could have concluded that her past pain was more severe than it would likely be over a more extended period in the future. The jury could have found the plaintiff entitled to $40,000 for the pain suffered from the time of her injuries until the time of trial and set the value of future suffering at $10,000. So that it cannot be determined whether the verdict exceeded the amount sued for. Having determined that the defendant's negligence as alleged in the petition was the proximate cause of plaintiff's injury, the jury then had to determine what amount would fairly compensate for it. The amount was to be commensurate with the gravity or triviality of the injury, being neither excessive nor inadequate. The record does not disclose that the jury did not undertake to perform this duty faithfully and impartially. We cannot hold that the verdict was, as a matter of law, excessive.
6. Special ground 4 complains of the following charge to the jury: "Now the plaintiff claims damages for pain and suffering which she says resulted from the injury which she claims to have sustained. It is impossible to produce evidence to a jury as to the amount of money that would be necessary to compensate a person for pain and suffering which she sustained either in body or in mind. And the law, therefore, says that the amount that *293 the plaintiff would be entitled to recover for pain and suffering must be left to the enlightened conscience of an impartial jury, such an amount as would under the circumstances of the case be in the minds and consciences of an enlightened and intelligent and impartial jury a sum which the plaintiff should recover as compensation and which would be properly chargeable to the defendant." The exceptions to the charge are (a) that it permitted the jury to consider the injuries to "the plaintiff's body" separately from her pain and suffering and as a distinct item of damages; (b) that it informed the jury that the plaintiff might recover regardless of whether the defendant was negligent; (c) that it was confusing; and (d) that it assumed the defendant was negligent. We do not think the charge permitted the jury to consider the injuries sustained by the plaintiff separately from her pain and suffering but we are of the opinion that the court referred to the plaintiff's injuries as a cause from which the plaintiff's pain and suffering might result. The court explicitly informed the jury in his general charge that the plaintiff could not recover unless she carried the burden of proving that the defendant was negligent as charged in the petition, and that such negligence was the proximate cause of her injury. Nothing in the charge complained of was to the contrary. The charge does not appear to be subject to the other criticisms made of it.
7. The same ground complains of another excerpt from the charge as follows: "Now, gentlemen of the jury, the plaintiff also claims damages for what she alleges to be a permanent decrease in her capacity to labor and earn money. You will look to the evidence and determine how much, if any, the capacity of the plaintiff to labor and earn money has been reduced on account of the injury. You will determine, if the evidence discloses the fact, what she would have probably been able to earn but for the injury, what she would have probably be able to earn in the future and if she will be able to earn less in the future than she would have been able to earn without the injury then the difference between the two sums would represent the loss, if any, to her earning capacity by reason of the injury. You will find what would be the fair yearly value of the loss, if any, and multiply this amount by the number of years, if any, if the evidence discloses this decrease in earning capacity will continue. If you *294 find from the evidence that her decreased earning capacity is permanent then you would find what the evidence shows to be the plaintiff's average yearly loss on this account, if any, and multiply this by the number of years that you would find from the evidence she would probably have lived but for the injury. In either case this would give the gross amount of the loss due to decreased earning capacity. In determining this amount you take into consideration the fact that rarely, if any, that people's capacity to labor and earn money rarely, if ever, remain undiminished by old age, you also take into consideration that fact that men frequently voluntarily abstain from labor, and that loss of employment, dullness in business, sickness, voluntarily abstaining from employment, increased infirmities in age and other things independent of the alleged injury may contribute to diminish the gross amount of the alleged loss in earning capacity, you would then reduce this gross amount to its present cash value by any correct method known to yourselves, using the basis that money is worth 7% per annum interest, because if the plaintiff had earned the money she would have earned it from year to year as she earned it whereas if she recovers it in this case it would be paid to her in cash." The exceptions are (a) that the language, "Now the plaintiff claims damages for an injury to her body and she also claims damages for pain and suffering which she says resulted from the injury which she claims to have sustained," allowed the jury to consider the injuries to the plaintiff's body and her pain and suffering as separate and distinct items when in law they constitute one item only and should be compensated for as pain and suffering; (b) that to leave the amount to which plaintiff would be entitled to the consciences of an enlightened jury was confusing and susceptible of being construed as a charge the jury should give the plaintiff an amount recoverable as compensation and chargeable to the defendant as an insurer of the plaintiff and without regard to negligence of the plaintiff; (c) that the charge that the jury should look to the evidence and see how much the plaintiff's earning capacity had been reduced was error because it assumed the plaintiff's capacity had been reduced by the injury, and allowed the plaintiff, a married woman, to recover for loss of capacity to labor in her house work and for her family and did not limit recovery to loss *295 of salary or wages when working outside the home, the court having included all loss of labor capacity; and (d) that the court's charge amounted to an expression of opinion that the plaintiff's earning capacity had been decreased in the future by the injury, her life expectancy decreased by it, while allowing for compensation for years beyond her expectancy, the jury being required by the charge to even add salary for five or ten years after the plaintiff's death, altogether unsound as a matter of law.
There is no doubt that the act of 1943 (Ga. L. 1943, p. 316; Code, Ann. Supp., § 53-512), though intended to "emancipate" married women, except as to the natural fetters matrimony imposes, by vesting in them title to their earnings, nevertheless limited their right to "salary or wages." Martin v. Gurley, 201 Ga. 493 (39 S. E. 2d 878). So that the husband was not by the act divested of a right (an unnatural one) to whatever the wife earned except salary or wages or his very natural right to her domestic services. A charge that implied that a plaintiff married woman could recover for loss of ability to earn money, except as salary or wages, would be error. But the charge here complained of, an excerpt from the general charge of the court, is not susceptible of any other construction than that the plaintiff's right to recover for diminished earning capacity was limited to diminished capacity to earn salary or wages. The plaintiff sued for no other diminished capacity and offered no evidence of loss of earning capacity in any other way. The petition alleged: "That the loss of earnings derived from salary and wages being a fixed amount certain, and such loss being occasioned by total and permanent incapacity of your petitioner to labor and earn money derived from salary and wages now and in the future, resulting from the failure of duty and negligence of the defendant aforesaid, aggregating $50,760 according to the Carlisle Mortality Table, as a fair and reasonable compensation for the loss of what she would otherwise have earned in her profession employment as salary and wages, should be recovered by your petitioner from the defendant." The petition's only prayer recited: "That upon a hearing hereof your petitioner have judgment against the defendant for the amount of her injuries and damages, to wit: $50,000 as compensation for her pain and suffering, permanent impairment of her left hip, and $50,760 for total loss *296 of earnings derived from salary and wages, according to the Carlisle Mortality Tables, as a fair and reasonable compensation for the loss of what she would have earned as salary and wages in her profession and employment, or a total judgment of $100,760." Thus the jury could not have understood that the trial judge's instruction referred to any right of recovery by the plaintiff for loss of labor except loss of capacity to earn salary or wages.
8. Special ground 5 contends that the trial court erred in failing to instruct the jury without request as to the law of comparative negligence. It is error even in the absence of request to omit to charge on this principle of law only if both the pleadings and proof in the case present an issue as to whether the plaintiff's recovery should be reduced according to the rule embodied in Code § 105-603. Pollard v. Watkins, 51 Ga. App. 762 (181 S. E. 798). The plaintiff in error here contends that this issue was raised by the pleadings in that the plaintiff's petition alleges that her injuries were solely and proximately caused by the defendant's negligence, and the defendant alleged in its answer that "if the plaintiff suffered an injury it was due to her own negligence." Although it would seem that such a denial by the defendant might amount to an allegation that the plaintiff was guilty of some negligence (negligence on the part of the plaintiff being an affirmative defense) and although it has been stated that the better rule for the trial court to follow is always to charge on the issue of comparative negligence where the evidence would support a finding that it in fact existed, nevertheless we are constrained by decisions of this court and the Supreme Court to hold that these allegations, without more, do not raise the issue in the pleadings. In Coble v. Georgia Motor Express, 62 Ga. App. 566, 569 (8 S. E. 2d 724) it is held as follows: "Furthermore, neither the evidence nor the pleadings authorized the charge contended for. The plaintiff contended that the injury was due to the defendant's negligence, and the defendant contended that it was due to the plaintiff's negligence. For these reasons the failure to give the instruction contended for was not error, especially since there was no request therefor." The rule of law was apparently first applied as against unsuccessful plaintiffs who contended on appeal that they were injured by failure of the court to charge on contributory or comparative negligence. *297 See Pierce v. Atlanta Cotton Mills, 79 Ga. 782 (4 S. E. 381), wherein the court held that the plaintiff having contended she was without fault could not complain that the court failed to charge this rule of law. See also Ingram v. Hilton & Dodge Lumber Co., 108 Ga. 194 (6) (33 S. E. 961). Thereafter these and like cases were cited as authority for applying the same rule of law to defendants making the same complaint. In Savannah Electric Co. v. Crawford, 130 Ga. 421 (60 S. E. 1056) it was held that, where the plaintiff alleged that "he was in the exercise of all ordinary care and diligence, and in nowise contributed to the collision, which was due solely to the negligence" of the defendant, and the defendant alleged that "if the plaintiff . . . suffered any damage at all, it was due to his own negligence", under these pleadings "the law in respect to contributory (or comparative) negligence and the reduction or mitigation of damages was not, under the contentions of the parties, directly involved in the case" and a new trial would not be granted for failure of the trial court to charge on that subject. It must accordingly be held that the issue of comparative negligence was not raised by the pleadings in the case under consideration. Under the ruling in Powell v. Berry, 145 Ga. 696 (5) (89 S. E. 753, L. R. A. 1917A, 306), where this issue is not raised by the pleadings, and where further there is no written request for the instruction, failure to charge the rule of comparative negligence is not ground for a new trial even though it might have been authorized under the evidence. Accordingly, this special ground is without merit.
9. Special ground 6 excepts to the charge: "General damages are such as the law presumes to flow from any wrongful act which the law denominates a tort and may be recovered without proof of any amount. Special damages are such as actually flow from the act and must be proved in order to be recovered. The jury must determine general damages after considering all the facts and circumstances in the case." This charge was approved in County of Bibb v. Ham, 110 Ga. 340 (35 S. E. 656), in which case pain and suffering and loss of ability to labor and earn money are held to be general damages. The court had previously instructed the jury as to the specific and separate methods of arriving at just compensation for the two classes of general damages for which the plaintiff prayed recovery.
*298 10. Ground 7 complains that the trial judge overruled a motion for mistrial and failed to reprimand counsel for the plaintiff who stated to the jury: "Gentlemen of the jury, this case has been tried once and the trial judge granted a nonsuit, but the Court of Appeals reversed that judgment and it is back now before you." If counsel had read the facts of the case (Bradford v. City of Commerce, 91 Ga. App. 581, 86 S. E. 2d 645), to the jury or had incorrectly stated the effect of the holding of this court on previous review of the case, the impropriety of such conduct would have been so grave as to require a reprimand or declaration of a mistrial. But under the holding of this court in McCullough v. State, 11 Ga. App. 612 (76 S. E. 393), there was nothing wrong in counsel reading the law of the case as adjudicated upon its previous appearance here. On page 617 of the case just cited, this court said: "During the argument of counsel for the accused he claimed the right to read to the jury portions of the opinion of the Court of Appeals, handed down in this case when it was before the court at a previous term. The court ruled as follows: `You can read all or any of the headnotes, or you can read all of the opinion, but you can not read parts of the opinion and the facts connected therewith.' There was no error in this ruling. Counsel had a right to read the opinion of the court in the presence and hearing of the jury, but he did not have a right to do what he seems, from the court's ruling, to have desired to do, i. e., read only those portions of the opinion of the court dealing with the facts of the case. It is not the province of the trial court, nor of the reviewing court, to control or influence the jury in its finding upon disputed issues of fact."
11. Ground 8 complains that the trial court did not order a mistrial because the plaintiff's counsel argued to the jury: "Gentlemen, this woman has been injured severely. She is ruined for life, and what is more she cannot be a wife to her husband." The ground does not show there was a motion for mistrial or request that counsel be reproved by the court, but it appears the objection made was "that there was no allegation contained in the petition to that effect and no evidence offered in support thereof." When the court called attention to the fact that counsel for the defendant had complained that opposing counsel had made an argument not supported by the allegations of the petition, counsel *299 for the plaintiff withdrew the argument. The court then instructed the jury not to permit what had been said to influence their verdict, "and with that admonition I will overrule the motion" for a mistrial. The record does not show a motion had been actually made. While if objection is made to improper argument, it is not necessary that a mistrial be moved (Code § 81-1009), where there was no motion for mistrial, the objection interposed was mild, and the withdrawal of the offending argument prompt, and from the court's ruling the jury must have understood that the matter objected to was not for their consideration, it would be within the discretion of the trial court whether he would declare a mistrial. We do not think he committed reversible error in not so declaring. This is held for the reasons stated and in view of our conclusion that the matter argued was such as might have been inferred from the evidence and could have been pleaded by way of amendment.
Judgment affirmed. Felton, C. J., Gardner, P. J., Townsend, Carlisle and Quillian, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318756/ | 94 S.E.2d 603 (1956)
244 N.C. 571
Willie James EASON, appearing herein by his next friend, James C. Eason, Plaintiff,
v.
Grace Bishop DEW, Executrix of the Estate of R. P. Dew, Deceased, Defendant.
No. 249.
Supreme Court of North Carolina.
October 10, 1956.
*605 Allen W. Harrell, Wilson, for plaintiff, appellant.
Wiley L. Lane, Jr., Wilson, for defendant, appellee.
BOBBITT, Justice.
The facts agreed negative rather than support plaintiff's allegations as to the existence of a contract between plaintiff and Dew. In this respect, there is a material variance between the allegation and proof. There can be no recovery except on the case made by the complaint. Andrews v. Bruton, 242 N.C. 93, 86 S.E.2d 786; Manley v. Greensboro News Co., 241 N.C. 455, 85 S.E.2d 672.
Are the facts alleged sufficiently established by the facts agreed, to warrant plaintiff's recovery of $756 or any amount by reason of the provisions of G.S. § 44-1 *606 and G.S. § 44-41? When litigants submit a cause on agreed facts, such agreed facts constitute the sole basis for decision. Edwards v. City of Raleigh, 240 N.C. 137, 81 S.E.2d 273.
The agreed facts do not show that notice of lien was filed in the office of the clerk of the superior court as prescribed by G.S. § 44-38 and G.S. § 44-39. The stipulation was simply that. "a notice of claim was filed with the defendant in December 1955." Moreover, the agreed facts do not show that the tobacco sold brought an average price per acre of $756 or any other stated amount. Nor is there any admission in defendant's answer bearing on this matter. Hence, if otherwise entitled to recover some amount, there was no factual basis upon which judgment, could have been entered for plaintiff. But apart from the defects noted, the agreed facts do not sustain plaintiff's right to recover.
The statutory lien is incident to and security for a debt. There can be no lien in the absence of an underlying debt. G.S. § 44-1; General Air Conditioning Co. v. Douglass, 241 N.C. 170, 84 S.E.2d 828; Brown v. Ward, 221 N.C. 344, 20 S.E.2d 324, and cases cited; Grissom v. Pickett, 98 N.C. 54, 3 S.E. 921. Thus, the ultimate question is whether the estate of Dew, the landlord, is indebted to plaintiff on account of the failure of McKeel, Dew's tenant, to pay to plaintiff the amount to which he was entitled under the Eason-McKeel contract.
Eason had no contract with Dew. Nor does it appear that Dew was advised as to the arrangement or agreement Eason had with McKeel. McCoy v. Wood, 70 N.C. 125, and White v. Riddle, 198 N.C. 511, 152 S.E. 501, cited by appellant, deal with different factual situations.
In the Dew-McKeel contract, it was. "agreed that Hugh McKeel could sub-contract part of his crops expected to be grown on the farm to other tenants since he could not himself furnish all of the `labor' necessary to cultivate, harvest and house the crops"; but it was also "understood and agreed that Hugh McKeel and the subtenants were to account to each other."
Under the Easori-McKeel contract, in addition to lodging and $20 per month, Eason was to receive "a share of the crops grown on said lands equal to the average yield per acre of the tobacco grown by Hugh McKeel as tenant of R. P. Dew upon the completion of all tobacco sales for the 1955 season.";
Under G.S. § 42-15, Dew had a preferred lien on the entire crop until the rent and all advancements made and expenses incurred in making and saving the crop were paid. Hall v. Odom, 240 N.C. 66, 81 S.E.2d 129, and cases cited. The crop did not bring an amount sufficient to satisfy Dew's lien. Defendant owes nothing to McKeel.
The Eason-McKeel contract was subordinate to the Dew-McKeel contract. True, McKeel had the right, by sublease, assignment or otherwise, to create a lien on his share of the crop. Glover v. Dail, 199 N.C. 659, 155 S.E. 575. However, any lien created by such subordinate contract made by McKeel was subject to the primary and paramount lien in favor of Dew by virtue of G.S. § 42-15. Moore v. Faison, 97 N.C. 322, 2 S.E. 169; Belcher v. Grimsley, 88 N.C. 88. As stated by Smith, C. J., in Montague v. Mial, 89 N.C. 137; "The land and the crops to be grown cannot be freed from the conditions imposed by law, nor can the lessor's rights be abridged by any subordinate contracts of the lessee." A person who deals with a tenant is charged with notice of the landlord's rights under G.S. § 42-15. Hall v. Odom, supra.
Appellant directs attention to this provision of the Dew-McKeel contract: "* * * it was expressly understood that Hugh McKeel was to furnish all `labor'; the cost of grading tobacco, housing and harvesting, except the cost of picking cotton was to be divided between them." *607 This provision, appellant contends, obligated Dew to pay one-half of the cost of grading, housing and harvesting the tobacco. Such a construction would seem at variance with plaintiff's theory of the case. Moreover, nothing is alleged or in the agreed facts to indicate the value of plaintiff's services in grading, housing and harvesting the tobacco. While the use of a semicolon rather than a comma after the word "labor" was inept, consideration of the pleadings and of the facts agreed impel us to construe the quoted stipulation to mean that McKeel was to furnish all labor except that the cost of picking cotton was to be equally divided between. Dew and McKeel. Nothing is alleged or in the agreed facts to indicate that plaintiff picked cotton or, if so, the value of such services.
The parties, in the agreed facts, expressly recognize that the Dew-McKeel contract created the relationship of landlord and tenant.
It is noted that McCoy v. Wood, supra, and Warren v. Woodard, 70 N.C. 382, cited by appellant, were decided prior to statutory amendments now incorporated in G.S. § 42-15.
It is further noted that the agreed facts refer to a separate case entitled: "Charlie Sumerlin v. Grace Bishop Dew, Executrix of the Estate of R. P. Dew, deceased." However, the process, pleadings and judgment in the record on this appeal relate solely to the Eason case.
Under the facts agreed, McKeel is indebted to plaintiff. If a judgment against McKeel would be uncollectible, plaintiff's partial loss is unfortunate and regrettable. Even so, under existing statutory law as construed by this Court, plaintiff has no basis on which he can recover from defendant the amount of McKeel's debt to him.
Affirmed.
JOHNSON, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318795/ | 677 S.E.2d 426 (2009)
CITY OF ATLANTA et al.
v.
ROACH.
No. A09A0456.
Court of Appeals of Georgia.
April 8, 2009.
*427 Swift, Currie, McGhee & Hiers, Todd A. Brooks, Atlanta, for appellants.
Cummings & Middlebrook, William M. Cummings II, Scott D. Delius, Atlanta, for appellee.
MIKELL, Judge.
In this workers' compensation case, an administrative law judge ("ALJ") determined that Richard Roach, a City of Atlanta police officer, sustained a compensable "superadded injury" on March 6, 2006, when he suffered third-degree burns to his left hip after falling asleep on a heating pad. Roach's hip had been fractured in a work-related incident in 2004. The appellate division of the State Board of Workers' Compensation (the "Board") reversed the ALJ's decision, with one judge dissenting. Roach appealed to the superior court, which set aside the Board's award and reinstated the ALJ's award. We granted the application for discretionary appeal filed by the City of Atlanta and Novapro Risk Solutions, LP, the City's servicing agent (collectively the "City"). For the reasons *428 that follow, we reverse the judgment of the superior court insofar as it ruled that Roach sustained a superadded injury. However, we hold that the issue of attorney fees awarded by the ALJ is moot.
In reviewing a workers' compensation award, both this Court and the superior court must construe the evidence in the light most favorable to the party who prevailed before the Board.[1] The Board's factual findings are conclusive and binding on a reviewing court when supported by any evidence,[2] and neither this Court nor the superior court is authorized to substitute itself as a fact finding body in lieu of the Board.[3]
Viewed in the light most favorable to the City, the evidence adduced at the hearing before the ALJ reveals that on May 13, 2004, Roach was driving his police vehicle when he was struck head-on by a drunk driver. The police vehicle burst into flames, and Roach had to be physically extracted from it. Due to swelling and hematomas in his brain, Roach was placed in a medically-induced coma for two weeks. In addition to the traumatic brain injury, Roach suffered a fractured left hip and pelvis. While he was in a coma, his hip was reconstructed with wire, screws, and rods. On August 23, 2005, Roach's authorized treating physician assessed him a 12 percent whole-body permanent partial disability based on impaired cognition and impaired gait. The physician indicated that Roach functioned at a medium duty work level.
In September 2005, Roach relocated to Rochester, New York. In March 2006, Roach drove approximately 16 hours from Rochester to Atlanta to meet with his commanding officer to discuss returning to work. Roach made the return drive back to New York in one day, and when he reached home, his left hip was sore. Roach placed a heating pad on his hip to alleviate the soreness, and he fell asleep. The heating pad caused third-degree burns. Roach explained that he did not realize the heating pad had burned his leg until after he awoke. Roach testified that the heating pad "burned an area where I couldn't feel [due to nerve damage from his hip surgery]." Roach testified that he regularly sleeps using a heating pad to alleviate soreness on various parts of his body, including his back, arms, and the part of his hip that still has feeling. Finally, Roach testified that the heating pad had not been prescribed by a physician.
Following the hearing, the ALJ found from a preponderance of competent and credible evidence that Roach suffered a superadded injury on March 6, 2006. Specifically, the ALJ determined that the burn injury was "related to" Roach's work-related injuries and that the usage of the heating pad was reasonable and necessary for the work-related hip injury. The ALJ's award included payment of medical expenses associated with the burn injury and $3,000 in attorney fees. In reversing, the Board held:
A superadded injury arises as a natural consequence of, or directly from, the original event. See J.M. Huber Corp. v. Holliday, 228 Ga.App. 4, 491 S.E.2d 74 (1997). In this case, we find that the employee's burn injury to the left hip did not arise as a natural consequence of the employee's work-related left hip fracture on May 13, 2004.
In so holding, the Board relied upon the medical evidence, and Roach's own testimony, that the burn was the result of his lying on a heating pad and falling asleep. In addition, the Board found that the "burn injury was not the result of reasonably required medical treatment prescribed or authorized for the treatment of [Roach's] original work-related left hip injury" since the burn did not result from "medical treatment" within the meaning of Standridge v. Candlewick Yarns.[4] The Board noted that no doctor, including Roach's authorized treating physician, had recommended or prescribed *429 the use of a heating pad. Finally, the Board set aside the award of attorney fees.
In reversing the Board's decision, the superior court relied on OCGA § 34-9-105(c), which permits the court to set aside the Board's decision if, among other things, "[t]here is not sufficient competent evidence in the record to warrant the members making the decision; or ... [t]he decision is contrary to law."[5] First, the court concluded that the decision was contrary to law because the Board had imposed the requirement of a "direct causal relationship" between the original injury and the superadded injury. The court decided that the injury was compensable because the heating pad was used as "a consequence" of the original hip injury. The court also rejected what it termed as the Board's legal conclusion that a superadded injury that results from medical treatment "must be specifically `prescribed or authorized' in order for the injury to be superadded and compensable." Finally, the court determined that "there is a complete absence of medical or testimonial evidence in the record ... to support the conclusion that the heating pad was unreasonable or unnecessary." The City challenges the superior court's decision. We reverse.
1. As the City contends, the Board correctly relied on Holliday in analyzing Roach's injury.
The "superadded injury" principle generally has been discussed in regard to consequences stemming from physical injuries which are unrelated to the employee's medical treatment, e.g., psychological disorders; aggravation of health problems by the work-related injury; or incapacitating pain in one member caused by the work-related injury. A superadded injury generally arises as a natural consequence of, or directly from, the original event and is not the result of a new event or accident.[6]
In Holliday, the ALJ found as a fact that the employee had suffered a new injury when he fell and fractured the same knee that he had hurt on the job, and we held that the ALJ erred in concluding that the injury was a compensable superadded injury.[7] In the case at bar, while the Board did not expressly find that the burn was a new injury, the Board did find that the burn injury did not arise as a "natural consequence of" or arise "directly from" the fractured hip. Rather, the Board found that the burn arose from a combination of Roach using a heating pad and falling asleep while lying upon the pad. Factual questions concerning causation are properly left to the Board to determine.[8] As there is some evidence in the record to support these findings of fact, the superior court was bound by them.[9] In addition, the Board's findings supported its legal conclusion that the burn was not a compensable superadded injury. The superior court thus erred in concluding that the Board's decision was contrary to law.
Furthermore, the superior court erred in reversing the Board's conclusion that Roach's burn injury did not constitute a superadded injury within the meaning of Standridge.[10] We noted in Standridge that "the `superadded injury' principle has also been applied to hold compensable an incapacitation resulting from medical treatment undertaken to cure the work-related injury."[11] In so noting, we cited cases in which the treatment resulting *430 in additional injury was either authorized or prescribed for the employee.[12] Here, the Board relied on Standridge in determining that Roach's burn injury was not the result of reasonably required medical treatment prescribed or authorized for his work-related hip injury. Further, the Board made factual findings, as follows:
A review of the competent and credible evidence in the record reflects that the employee applied the heating pad for use of soreness and aches, on other parts of his body, and for aches related to non-work related activities, other than those associated with his work injury. We also find that the prolonged use of a heating [pad] together with falling asleep while using the pad is not "reasonable treatment" as contemplated by the [Workers' Compensation] Act.... Based upon a review of the preponderance of competent and credible evidence in the record, we find that the employee's use of the heating pad was not reasonable and necessary medical treatment for the employee's work-related hip injury. As such, to the extent the [ALJ] found that the employee sustained a superadded burn injury related to the employee's work-related left hip fracture, we find the [ALJ] erred.
The provision of the Workers' Compensation Act to which the Board referred states as follows:
The employer shall furnish the employee entitled to benefits under this chapter such medical, surgical, and hospital care and other treatment, items, and services which are prescribed by a licensed physician, ... which in the judgment of the State Board of Workers' Compensation shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment.[13]
"The purpose behind [this Code section] is to provide services prescribed by a licensed physician which give relief to the work-related injury of the employee."[14] Although this statute encompasses nonmedical items and services, they must be prescribed by a licensed physician, and, in the Board's judgment, reasonably required to give relief.[15] As the heating pad was not prescribed by a physician, and it was within the Board's power as a factfinding body to determine that prolonged use of the device while sleeping was not reasonable and necessary medical treatment,[16] the Board's conclusion that the burn injury was not "an incapacitation resulting from medical treatment undertaken to cure the work-related injury"[17] was not contrary to law. The superior court erred in setting aside the Board's award on this ground.
2. Finally, the City argues that the superior court erred in reinstating the ALJ's award of attorney fees to Roach. The superior court, however, did not expressly rule on the issue of attorney fees. Roach argues on appeal, as he did in the court below, that the issue is moot because the City paid the attorney fees as soon as the ALJ issued the award. As Roach notes, "[a]n appellant's voluntary payment of the judgment renders moot the issues sought to be determined on appeal."[18] In the absence of argument or citation of authority by the City on the question *431 of mootness, we agree with Roach that this issue is moot.
Judgment affirmed in part and reversed in part.
JOHNSON, P.J., and ELLINGTON, J., concur.
NOTES
[1] Ray Bell Constr. Co. v. King, 281 Ga. 853, 854, 642 S.E.2d 841 (2007); Lavine v. American Ins. Co., 179 Ga.App. 898, 900, 348 S.E.2d 114 (1986) (whole court).
[2] King, supra.
[3] Id. Accord Shuman v. Engineered Fabrics, 220 Ga.App. 636, 469 S.E.2d 847 (1996).
[4] 202 Ga.App. 553, 555, 415 S.E.2d 10 (1992).
[5] OCGA § 34-9-105(c)(4), (5).
[6] (Citations and punctuation omitted.) Holliday, supra at 6, 491 S.E.2d 74. See also Baugh-Carroll v. Hosp. Auth. of Randolph County, 248 Ga.App. 591, 595(2), 545 S.E.2d 690 (2001) ("An employee sustains a compensable superadded injury when, as a result of a work-related disability to one part of the body, the employee suffers a disabling injury to another part of the body"), citing ITT Continental Baking Co. v. Comes, 165 Ga.App. 598, 599(1), 302 S.E.2d 137 (1983) (physical precedent only).
[7] Holliday, supra.
[8] City of Buford v. Thomas, 179 Ga.App. 769, 771(1)(a), 347 S.E.2d 713 (1986).
[9] See, e.g., Baugh-Carroll, supra (record contained evidence to support Board's factual finding that employee's knee problems constituted a change in condition, which supported legal conclusion that employee had sustained a superadded injury; superior court erred in concluding otherwise).
[10] Supra.
[11] Id. at 555, 415 S.E.2d 10.
[12] See Sanders v. Ga.-Pacific Corp., 181 Ga.App. 757, 760(2), 353 S.E.2d 849 (1987) (skin graft necessary as a result of original injury); Noles v. Aragon Mills, 116 Ga.App. 560, 158 S.E.2d 261 (1967) (same).
[13] OCGA § 34-9-200(a).
[14] (Punctuation omitted; emphasis supplied.) Berry College v. Storey, 199 Ga.App. 298, 299(2), 404 S.E.2d 640 (1991).
[15] Id. at 298-299(1), 404 S.E.2d 640.
[16] See Hallisey v. Fort Howard Paper Co., 268 Ga. 57, 58-59(1), 484 S.E.2d 653 (1997) (Board's decision "cannot be disturbed as long as there is any evidence to support it, because neither the superior court nor the appellate court has the power to find facts") (citations omitted).
[17] Standridge, supra.
[18] (Citations omitted.) Nash v. Pierce, 238 Ga. App. 466(1), 519 S.E.2d 462 (1999), citing Morris v. Morris, 242 Ga. 591(1), 250 S.E.2d 459 (1978) (issue of award of attorney fees in alimony case moot because husband already paid them). Compare Claxton Enterprise v. Evans County Bd. of Commrs., 249 Ga.App. 870, 872-873(1), 549 S.E.2d 830 (2001) (partial payment of attorney fees did not moot appeal because issue was collateral to the main judgment). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318459/ | 346 S.E.2d 488 (1986)
STATE of North Carolina
v.
Bienvenido DIAZ.
No. 30PA86.
Supreme Court of North Carolina.
August 12, 1986.
*490 Lacy H. Thornburg, Atty. Gen., by Joan H. Byers, Sp. Deputy Atty. Gen., Raleigh, for the State.
Malcolm Ray Hunter, Jr., Appellate Defender by Geoffrey C. Mangum, Asst. Appellate Defender, Raleigh, for defendant-appellee.
BRANCH, Chief Justice.
The State assigns as error the decision of the Court of Appeals that the State failed to produce substantial evidence that the crime charged had been committed and that the offense was committed by defendant.
[U]pon a motion to dismiss in a criminal action, all the evidence admitted, whether competent or incompetent, must be considered by the trial judge in the light most favorable to the State, giving the State the benefit of every reasonable inference that might be drawn therefrom. Any contradictions or discrepancies in the evidence are for resolution by the jury.... The trial judge must decide whether there is substantial evidence of each element of the offense charged. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984) (citations omitted). "It is immaterial whether the substantial evidence is circumstantial or direct, or both." State v. Jones, 303 N.C. 500, 504, 279 S.E.2d 835, 838 (1981) (quoting State v. Stephens, 244 N.C. 380, 93 S.E.2d 431 (1956)). Circumstantial evidence need not exclude every reasonable hypothesis of innocence. Id.
Under N.C.G.S. § 90-95(h)(1) anyone who sells, manufactures, delivers, transports, or possesses more than 50 pounds of marijuana is guilty of the felony of trafficking in marijuana. If the quantity of marijuana involved equals or exceeds 10,000 pounds, the offense carries a minimum sentence of 35 years' imprisonment and a minimum fine of $200,000.
A defendant acts in concert with another to commit a crime when he acts "in harmony or in conjunction ... with another pursuant to a common criminal plan or purpose." State v. Joyner, 297 N.C. 349, 356, 255 S.E.2d 390, 395 (1979). Evidence that a defendant did some act forming a part of the crime charged when considered together with evidence that others also did acts leading to the crime's commission, strongly indicates that the defendant was acting in concert with others to commit the crime charged. Id. at 356-57, 255 S.E.2d at 395. However, it is not
necessary for a defendant to do any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle so long as he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.
Id. at 357, 255 S.E.2d at 395.
An examination of the record reveals overwhelming evidence that the crime of trafficking in marijuana occurred. Over 40,000 pounds of marijuana, along with a number of the traffickers, were seized by the State Bureau of Investigation and the Hyde County Sheriff's Department on 2 *491 May 1984. The sole question remaining under this assignment of error is whether the State produced sufficient evidence that defendant committed the trafficking offense to take the case to the jury.
In reversing the trial court and deciding that the State did not produce sufficient evidence to take the case to the jury, the Court of Appeals reasoned that in order for the jury to conclude that defendant had engaged in trafficking in marijuana in excess of 10,000 pounds it would have to build inference upon inference. The Court of Appeals relied primarily on State v. LeDuc, 306 N.C. 62, 291 S.E.2d 607 (1982).
It is necessary at this point to review the evidence offered by the State before we discuss the applicability of LeDuc to the instant case or determine the question presented by this assignment of error.
The State's evidence tended to show the following:
On 1 and 2 May 1984 agents of the State Bureau of Investigation were engaged in the surveillance of individuals believed to be involved in smuggling drugs. At approximately 6:05 p.m. on 1 May 1984, Carlos Sosa and Roberto Tellez were observed leaving the Holiday Inn in Williamston, North Carolina. Sosa was driving a tractor trailer truck; Tellez, a Ryder rental truck. They were followed by the agents until they turned off Highway 264 onto Fifth Avenue, a 2.3-mile dirt road which goes to the Long Shoal River. The agents walked to a point just south of the intersection of Fifth Avenue and Highway 264 and hid in a ditch. They heard voices coming from a pumping station located at the intersection and the sound of outboard motors coming from the Long Shoal River.
Around 1:00 a.m. on 2 May 1984, the agents saw a Buick Regal and a tractor trailer truck emerge from Fifth Avenue and turn towards Englehard onto Highway 264. The agents alerted other officers in the area who stopped the vehicles. The truck, driven by Sosa and carrying a passenger, Elias Silvino Rivero, was hauling 517 bales of marijuana and was equipped with a CB radio. The Buick was occupied by four Hispanic individuals: Louis Concepcion, Juan Hernandez, Reineril Fonseca, and Orlando Tudela. A search of the Buick revealed a rental agreement for the car in the name of Bienvenido Diaz. The agreement lists a home address, VISA card number, Florida driver's license number, and home telephone number for Bienvenido Diaz. CB radios wired into the electrical system, a map of the tidewater area, an airplane ticket for an A. Jiminez, and papers for Louis Concepcion and Juan Hernandez were also found in the car.
After the tractor trailer truck and Buick Regal had left the area the agents went about 0.7 mile down Fifth Avenue where they discovered Roberto Tillez in a rental truck and arrested him. The truck was loaded with bales of marijuana and was also equipped with a CB radio.
At this point the agents and local law enforcement officers turned on the blue lights in their vehicles and went to the end of Fifth Avenue. There they saw several vehicles and numerous individuals running for the swamp. Four Hispanic individuals were arrested almost immediately, and Carlos Mesa was later arrested after he was found hiding in a Ryder truck. One of the vehicles found near the river was a Plymouth Reliant which had been rented by Reineril Fonseca, who was one of the occupants of the Buick Regal.
A trawler recently painted black was offshore at the end of Fifth Avenue at the time of the raid. It had scratches on its right side, apparently as a result of being unloaded. Flatbottomed boats containing marijuana residue were found in the back of two Ryder trucks parked at the site. A search of the trawler revealed numerous radios, marijuana residue, and a notebook and papers containing a code. The code contained the phrase "Dias equals Galones." On 10 May 1984 another copy of the code containing the same phrase was found in a house in Duck which the traffickers had rented.
Fingerprints from a number of traffickers were found on notes from the trawler *492 or on notes at the house rented by the traffickers in Duck. Fingerprints of both Frank Concepcion and Eladio Valdes were found.
During the early morning hours of 2 May 1984 the officers apprehended a number of individuals from the surrounding water and swamp in addition to those already arrested. Most of those arrested were Hispanic. The next day four more suspects were arrested at Wahoo Seafood Company in Stumpy Point. On that same day Sheriff Dale arrested Eladio Valdes on Highway 264, five miles from Englehard. On 4 May 1984, Frank Concepcion was arrested after being found in a boat near the drug landing site.
On 5 May 1984, defendant was spotted walking along Highway 264 towards a bombing range by Sheriff Dale who noted that he was dirty and wet and appeared to be exhausted. Sheriff Dale also noted that defendant looked Hispanic. The Sheriff stopped defendant and asked him his name. Defendant replied that he was Benny Diaz. When Sheriff Dale asked defendant where he had been, Diaz stated that he had been out in the swamp for several days and nights. The Sheriff then arrested him.
The area in which Sheriff Dale spotted defendant is approximately ten miles from Stumpy Point and fifteen miles from Englehard. That area is uninhabited, contains a bombing range, and consists of woods and swamp. Sheriff Dale testified that it was unusual for anyone to be walking through that area, especially in early May.
The evidence concerning the code phrase containing the word "Dias" and the rental agreement purportedly renting the seized Buick automobile to defendant, which automobile was seized while engaged in the trafficking of marijuana, was sufficient to support a reasonable inference that defendant was a participant in the planning of the crime of trafficking in more than 10,000 pounds of marijuana.
We are also of the opinion that there was ample evidence to support an inference from which the jury could reasonably find that defendant was one of the men who fled to the swamp and that prior to his flight he was present and assisting in the loading, unloading, and transportation of the marijuana. The evidence tending to support this inference is as follows: (1) That defendant, a Hispanic resident of Florida, was arrested three days after the raid at the loading area as he walked in the uninhabited marshes of Hyde County near a bombing range; (2) that at the time of his arrest defendant stated that he had been in the swamp for several days; (3) that three days before defendant's arrest, officers had arrested several Hispanic persons who were leaving the area where the marijuana was being unloaded from the trawler and loaded on a truck; four of these men were in a Buick automobile which was following a truck heavily loaded with marijuana; (4) that after these arrests were made, the officers proceeded to the loading area where more Hispanic persons were arrested, and numerous individuals were observed fleeing to the swamp.
Further, we are of the opinion that defendant's reliance on State v. LeDuc, 306 N.C. 62, 291 S.E.2d 607, and State v. Baize, 71 N.C.App. 521, 323 S.E.2d 36 (1984), disc. rev. denied, 313 N.C. 174, 326 S.E.2d 33 (1985), is misplaced.
In LeDuc the defendant was convicted of conspiring to possess 22.4 pounds of marijuana. The State produced evidence that the marijuana was found in a trawler docked at an isolated point in Dare County and that LeDuc's fingerprints were found in several different places in the trawler. There was also evidence that shortly after the trawler docked cargo was unloaded from it and put into a truck. After the truck left, three unidentified persons were seen coming from the direction of the trawler and left in a second truck after staying in an unlocked building for approximately five minutes. There was no direct evidence that LeDuc had chartered the trawler. LeDuc's signature on the charter was similar to known examples of his signature. However, the owners of the trawler could not identify LeDuc as being the *493 man who chartered the trawler under the name of "LeDuc" and one owner testified that LeDuc was not the man who had chartered the trawler.
Though there was no direct evidence that LeDuc chartered the trawler, participated in its navigation, or was aboard while marijuana was being transported, we held that the jury could reasonably infer from the evidence that these things were true. LeDuc, 306 N.C. at 77, 291 S.E.2d at 616-17.
It could infer, from similarity in the signatures and names and the Florida driver's license shown to the owners of the trawler, that defendant was the same Milan LeDuc who arranged for and executed the charter. It could infer from defendant's fingerprints found on board the vessel, the places where these prints were found, and defendant's Coast Guard license application that defendant had participated in navigating the trawler and was on board at the time marijuana was being transported. It is only by building on these inferences, however, that the jury might then further infer that defendant participated in an unlawful agreement to possess marijuana.
Id. at 77-78, 291 S.E.2d at 616-17.
LeDuc differs from this case in that it concerned a charge of conspiracy to possess marijuana. In order to establish that a defendant is guilty of conspiracy, the State must prove that he "entered into an unlawful confederation for the criminal purposes alleged." LeDuc, 306 N.C. at 76, 291 S.E.2d at 616 (quoting State v. Andrews, 216 N.C. 574, 6 S.E.2d 35 (1939)). In LeDuc the State could not prove the essential elements of the conspiracy without resorting to the stacking of inferences.
In the instant case it was unnecessary for the jury to stack inference upon inference to find that defendant was guilty of trafficking in marijuana in excess of 10,000 pounds. There is evidence which raises a reasonable inference that he was involved with the other traffickers in the planning of the smuggling operation, and there is evidence which raises a reasonable inference that he was present at the unloading site when the marijuana was landed. Together, these inferences are sufficient to support the jury's conclusion that defendant acted in concert with the traffickers to possess or transport in excess of 10,000 pounds of marijuana.
The Court of Appeals also relied on State v. Baize, 71 N.C.App. 521, 323 S.E.2d 36, for the proposition that the State could not use the doctrine of concerted action to avoid proving constructive presence and constructive possession because that would permit the State to stack inference upon inference. We hasten to point out that in the instant case there was no need for the State to show constructive possession. When the State has established, as it has in this case, that a defendant was present while a trafficking offense occurred and that he acted in concert with others to commit the offense pursuant to a common plan or purpose, it is not necessary to invoke the doctrine of constructive possession. See generally State v. Joyner, 297 N.C. 349, 255 S.E.2d 390. In Baize, reliance by the State on the doctrine of constructive possession was necessary because the drugs in question were in the possession and under the control of a person other than Baize, and Baize was not present when the drugs were seized. 71 N.C.App. at 528-29, 323 S.E.2d at 41.
We therefore hold that when considered as a whole the evidence produced by the State was sufficient to withstand defendant's motion to dismiss.
Defendant next assigns as error the trial court's denial of his motion to set aside the verdict. He argues that the verdict was ambiguous and lacked the unanimity required by N.C.G.S. § 15A-1237 and article 1, section 24 of the North Carolina Constitution.
In his final mandate the trial judge instructed the jury as follows:
I charge that if you find from the evidence and beyond a reasonable doubt that on or about May 2nd, 1984, the defendant Diaz, acting either by himself or acting together with Tudela, or Harrelson, or Sosa, or Almanzar, or Alonzo, *494 or Fonseca, or Steeg or Martinez or Alfonso or Louis Concepcion or Tellez or Jose Almanzar or Fernandez or Juan Hernandez or Rivero or Mesa or Reed or Vandesteeg or Stevens or Coiner or Jimenez or Andrews or Glow or Valdes or Frank Concepcion, knowingly possessed or knowingly transported marijuana, and that the amount which he possessed or transported was 10,000 pounds or more, it would be your duty to return a verdict of guilty as charged. However, if you do not so find or have a reasonable doubt as to one or both of these things, it would be your duty to return a verdict of not guilty.
"No person shall be convicted of any crime but by the unanimous verdict of a jury in open court." N.C. Const. art. 1 § 24. See also N.C.G.S. § 15A-1237(b) (1983). Submission of an issue to the jury in the disjunctive is reversible error if it renders the issue ambiguous and thereby prevents the jury from reaching a unanimous verdict. See Jones v. All American Life Ins. Co., 312 N.C. 725, 736, 325 S.E.2d 237, 243 (1985). Previously we have held that a verdict of guilty following submission in the disjunctive of two or more possible crimes to the jury in a single issue is ambiguous and therefore fatally defective. State v. McLamb, 313 N.C. 572, 577, 330 S.E.2d 476, 480 (1985) (jury found that defendant "feloniously did sell or deliver" cocaine); State v. Albarty, 238 N.C. 130, 133, 76 S.E.2d 381, 383 (1953) (criminal complaint improperly alleged that defendant did sell, barter, or cause to be sold or bartered lottery tickets; verdict of guilty as charged invalid because it was "not sufficiently definite and specific to identify the crime of which defendant [was] charged").
Sale, manufacture, delivery, transportation, and possession of 50 pounds or more of marijuana are separate trafficking offenses for which a defendant may be separately convicted and punished. State v. Perry, 316 N.C. 87, 102-04, 340 S.E.2d 450, 460-61 (1986); State v. Anderson, 57 N.C.App. 602, 605-06, 292 S.E.2d 163, 165-66, disc. rev. denied, 306 N.C. 559, 294 S.E.2d 372 (1982). See State v. Creason, 313 N.C. 122, 129, 326 S.E.2d 24, 28 (1985).
By instructing the jury that it could find defendant guilty of trafficking in marijuana if it found that defendant knowingly possessed or knowingly transported 10,000 pounds or more of marijuana the trial judge submitted two possible crimes to the jury. The jury could find defendant guilty if it found that he committed either or both of the crimes submitted to it. However, the jury's verdict of guilty as charged in this case is fatally defective because it is ambiguous. There is no way for this Court to determine whether the jurors unanimously found that defendant possessed 10,000 pounds or more of marijuana, transported 10,000 pounds of marijuana, both possessed and transported 10,000 pounds or more of marijuana, or whether some jurors found that defendant possessed the marijuana and some found that he transported it. Therefore, we hold that defendant has been deprived of his constitutional right to be convicted by a unanimous jury and is entitled to a new trial. N.C. Const. art. 1 § 24; N.C.G.S. § 15A-1237(b) (1983). See State v. McLamb, 313 N.C. 572, 330 S.E.2d 476; State v. Creason, 313 N.C. 122, 326 S.E.2d 24; State v. Albarty, 238 N.C. 130, 76 S.E.2d 381.
Our decision in this case does not mean that a simple verdict of guilty based on an indictment and instruction charging crimes in the disjunctive will always be fatally ambiguous. An examination of the verdict, the charge, the initial instructions by the trial judge to the jury as required by N.C. G.S. § 15A-1213, and the evidence in a case may remove any ambiguity created by the charge. See State v. Hampton, 294 N.C. 242, 239 S.E.2d 835 (1978). Reference to the indictment will rarely, if ever, be helpful because N.C.G.S. § 15A-1221(b) forbids the reading of the indictment to the jury or prospective jurors.
We have held that
[a]s a general rule, where a statute specifies several means or ways in which an offense may be committed in the alternative, it is bad pleading to allege such *495 means or ways in the alternative. But where terms laid in the alternative are synonymous, the indictment is good; and where a statute, in defining an offense, uses the word `or' in the sense of `to-wit,' that is, in explanation of what precedes, making it signify the same thing, the indictment may follow the words of the statute.
State v. Jones, 242 N.C. 563, 565, 89 S.E.2d 129, 131 (1955) (quoting 31 C.J., Indictments and Information, § 181 (1923) (Indictment charging that defendant "did unlawfully and wilfully build or install a septic tank...." not duplicitous because terms "build" and "install" are synonymous). This rule is applicable to a trial judge's instructions to the jury as well as to indictments and informations. See United States v. Gipson, 553 F.2d 453, 458 (5th Cir.1977). When construing N.C.G.S. § 90-95(h)(2), it cannot be said that possession and transportation of marijuana are synonymous, and in this case we find nothing in the verdict, the initial instructions of the trial judge to the jury, the charge, or in the evidence which resolves the ambiguity created by the disjunctive instruction.
We recognize that State v. Foust, 311 N.C. 351, 317 S.E.2d 385 (1984), and State v. Hall, 305 N.C. 77, 286 S.E.2d 552 (1982), reached results at variance with this opinion. Insofar as those and other opinions of this Court contain language inconsistent with the holding of this case they are overruled.
Since defendant was deprived of his constitutional right to be convicted only by a unanimous jury and is, therefore, entitled to a new trial, we need not consider his remaining assignments of error. For the reasons stated the decision of the Court of Appeals is reversed and defendant is awarded a new trial.
REVERSED AND REMANDED.
FRYE, Justice, dissenting in part and concurring in part.
I dissent to that part of the majority's opinion which holds that the State produced substantial evidence that defendant committed the crime charged. The majority relies upon the following facts to support the identification of defendant Diaz as one of the people involved in the activities at the swamp: the phrase "Dias equals Galones" found in what appeared to be a code book, the name "Bienvenido Diaz" typed on the rental receipt for the Buick caught leaving the swamp, and the circumstances of defendant's arrest. From these facts, the majority concludes first that Diaz "was a participant in the planning of the crime of trafficking in more than 10,000 pounds of marijuana" and second, that he was "present and assisted in the loading, unloading, and transportation of the marijuana."
First, I am convinced that the facts as presented in this case will not support a reasonable inference that the phrase "Dias equals Galones" had any connection at all with defendant. Defendant's name is Diaz, not Dias. While this distinction might not appear critical to an English speaker, it might well be critical to a Spanish speaker. As far as is shown in the opinion, the State introduced no evidence on this point. From context, the word "Dias" could be any non-English word; there is not even a suggestion that it is a name. The code read, "One equals Rosalba, two equals Maricla, ... Dias equals Galones."
Second, the State's evidence as described in the majority's opinion will permit only an inference that defendant rented the Buick automobile detained during the raid. The State's only evidence connecting defendant with the automobile is the name "Bienvenido Diaz" appearing on the rental agreement. No one identified defendant as the person who rented the Buick, the rental agreement was not signed, the purported identifying information was not confirmed as actually identifying defendant, and neither defendant, his personal possessions, nor his fingerprints were found in the automobile. To conclude from the inference that defendant rented the Buick that he also participated in planning the crime would amount to stacking an inference upon an inference. Defendant's guilt may *496 not be predicated upon such evidence in this state. State v. Ledford, 315 N.C. 599, 340 S.E.2d 309 (1986); State v. Parker, 268 N.C. 258, 150 S.E.2d 428 (1966).
While the circumstances of defendant's arrest three days after the raid may be sufficient for the jury to infer that defendant was present at the scene, it would be necessary for the jury to stack inference upon inference for it to further find from these circumstances that defendant also participated in the criminal events of that evening.
I therefore conclude, as did the unanimous panel of the Court of Appeals, that there was insufficient evidence to go to the jury.
Because I believe that the State's evidence was insufficient to take the case to the jury, I would not reach the second issue discussed by the majority. Nevertheless, since the Court has decided to reach this issue, I concur in the well-reasoned opinion of the majority as to this issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318466/ | 677 S.E.2d 134 (2009)
CITY OF ATLANTA et al.
v.
KLEBER et al. (Two Cases).
Nos. S08G1417, S08G1424.
Supreme Court of Georgia.
Reconsideration Denied June 1, 2009.
May 4, 2009.
*135 Elizabeth B. Chandler, Jerry L. DeLoach, Laura Sauriol-Gibris, for City of Atlanta et al.
Weissman, Nowack, Curry & Wilco, William C. Thompson, Laura S. Morris, for Norfolk Southern Corporation.
Gaslowitz Frankel, Craig M, Frankel, Lisa C. Lambert, LeAnne M. Gilbert, Atlanta, for Kleber et al.
MELTON, Justice.
These consolidated cases concern a nuisance[1] and negligence action brought by Scott Kleber and Nancy Habif (collectively referred to as "the homeowners") against Norfolk Southern Corporation and the City of Atlanta. In this action, the homeowners contended that Norfolk and the City had failed to properly maintain a drainage pipe and culvert near their property, resulting in their home being flooded during heavy rains. In Kleber v. City of Atlanta, 291 Ga.App. 146, 661 S.E.2d 195 (2008), the Court of Appeals reversed the trial court's grant of summary judgment to Norfolk and the City, finding, among other things, that the nuisance about which the homeowners complained was continuing in nature and, as a result, the homeowners' suit was not barred by the four-year statute of limitations. See OCGA § 9-3-30. We granted certiorari to consider two issues: (1) whether the Court of Appeals erred in concluding that the homeowners presented triable issues with respect to their negligence and nuisance claims against Norfolk and (2) whether the Court of Appeals erred in concluding that the homeowners presented a triable issue with respect to their nuisance claim against the City. For the reasons set forth below, we reverse.
The record shows that, in the late 1800s, Norfolk installed railroad tracks abutting property that would eventually be owned by the homeowners almost two centuries later. At some point, at least four decades ago, Norfolk also installed a culvert and a 36-inch brick drainage pipe under the tracks. At that time, the drainage culvert and pipe were adequate to drain the large 37-acre basin in which the homeowners' property sits. The pipe and culvert have been maintained properly over the years, as the evidence shows *136 that they are currently clean of debris, intact, and in proper working order.
The homeowners purchased and moved into their home during the summer of 1997. During heavy rains, the homeowners experienced flooding on the property and, several months after moving in, they relayed their problem to both Norfolk and the City, the latter of which had placed a connecting pipe onto Norfolk's pipe that directed runoff to a combined sewer overflow culvert.[2] Approximately six years later, on May 16, 2003, the homeowners incurred substantial property damage from the flooding of their home following a particularly heavy rain. The homeowners again contacted Norfolk and the City, but their request that Norfolk and the City fix the flooding problem was not granted. In response, the homeowners filed this action on October 28, 2004, contending that: (1) Norfolk was liable for negligence and nuisance because the drainage pipe was too small to properly handle runoff and (2) the City was liable for nuisance for failing to adequately construct and maintain the storm and drainage system in the surrounding properties, including its connection to Norfolk's pipe.[3]
With regard to the operative facts underlying the case, the parties agreed to be bound by the findings of a court-appointed special master. Among other things, the special master determined that the homeowners' property was prone to flooding because Norfolk's "36-inch pipe that ultimately drains the basin, in which the residence is located, is not large enough to empty that basin without creating a backup or ponding of storm water in the basin." The special master noted, however, that the 36-inch pipe had been maintained properly over the years and that, at the time that it was installed, "this pipe was probably sized to accommodate the flow from the drainage basin as it existed many decades ago." He further noted that, at the time that the drainage pipe was installed, the standard practice called for much smaller pipes than those installed today. In a subsequent deposition regarding his report, the special master explained this observation, stating that it was correct to presume that "[w]hen the pipe was originally constructed or installed, it dealt with the conditions that existed at the time[.] ... The design for the pipe when it was done at that time was based on the conditions that existed at that time." The special master further determined that the City's connection to Norfolk's drainage pipe did not increase the backup of water onto the homeowners' land. Finally, the special master found that, over the decades since the drainage pipe had been installed, development of the surrounding property, which included the installation of areas impervious to water absorption, had increased the runoff flowing into the basin where the homeowners' property rests. At his deposition regarding his report, the special master was asked: "Did your investigation reveal anything that Norfolk Southern and the City of Atlanta or, frankly, any of the other property owners in the area had done that increased the flow of surface water onto the Kleber residence?" In response, the special master indicated that he believed that the increase was due to the development of other properties, not actions by Norfolk or the City. He opined: "Over the years there have been increases to house sizes, you know, maybe driveways added, patios, whatever, you know, creating a more impervious area, thereby generating more runoff into the basin."
1. As an initial matter, we cannot fully agree with the Court of Appeals' determination that the type of nuisance in issue in this case is wholly continuing in nature. In making this determination, we must look both to our case law and the Restatement of Torts.[4]
*137 The classification of an alleged nuisance as continuing in nature directly controls the manner in which the statute of limitations will be applied to the underlying claim.
A nuisance, permanent and continuing in its character, the destruction or damage being at once complete upon the completion of the act by which the nuisance is created, gives but one right of action, which accrues immediately upon the creation of the nuisance, and against which the statute of limitations begins, from that time, to run. Where a nuisance is not permanent in its character, but is one which can and should be abated by the person erecting or maintaining it, every continuance of the nuisance is a fresh nuisance for which a fresh action will lie. This action accrues at the time of such continuance, and against it the statute of limitations runs only from the time of such accrual.
(Citations omitted.) City Council of Augusta v. Lombard, 101 Ga. 724, 727, 28 S.E. 994 (1897).
In City Council of Augusta v. Boyd, 70 Ga.App. 686, 29 S.E.2d 437 (1944), the plaintiffs filed a nuisance action against the City Council for damages caused by the City of Augusta's improper maintenance of an open sewer drainage ditch adjacent to their property. In characterizing the nuisance as a continuing one, the Court of Appeals held:
The nuisance complained of in the instant case, the improper maintenance of the ditch, is not a permanent one, but rather one which can be abated by the city at any time, and the wrong or injury is remediable. The nuisance complained of does not consist in the mere presence of the ditch, but in the manner in which it is maintained.
Id. at 688, 29 S.E.2d 437.
In this case, the homeowners appear to complain both about the mere presence of the culvert and pipe, arguing that they were improperly installed, as well as their maintenance over time. To the extent that the homeowners complain that the mere presence creates a nuisance due to improper installation, their nuisance claim is permanent in nature and is presently barred by the statute of limitations. See Lombard, supra, 101 Ga. at 727, 28 S.E. 994. In any event, the special master opined that the culvert and pipe were properly installed decades ago, and, at the time of installation, the structures adequately drained the homeowners' property. On the other hand, to the extent that the homeowners contend that the culvert and drainage pipe have not been properly maintained, their nuisance claim is continuing in nature. They are, therefore, allowed to contend that Norfolk's maintenance of the culvert and pipe within the four years preceding their lawsuit created a nuisance.
The Restatement of Torts (Second) § 930 supports these classifications. There, in comment c, it states:
Damage to neighboring landowners is frequently incident to the construction and operation of establishments employed in necessary public service, which nominally have the right of taking land by eminent domain. A railway embankment with an inadequate culvert diverts water upon nearby land; a municipal electric plant sends smoke and fumes into homes and factories; a city sewage disposal system pollutes a stream to the injury of bordering landowners. If the damage results from some minor feature of construction or management, so that it could be averted at slight expense, the normal remedy of successive actions for past invasions or relief by injunction would alone be available, as is also true if the harm results from an improper and unnecessary method of operation. But if the invasions are caused by some substantial and relatively enduring feature of the plan of construction or from an essential method of operation, then it will usually not be abatable by injunction and the desirability of granting the injured person complete compensation *138 for past and future invasions is apparent.
(Emphasis supplied.)
2. Contrary to the holding of the Court of Appeals, the homeowners failed to present triable issues with respect to their negligence and nuisance claims against Norfolk. With regard to their negligence claim, the homeowners have failed to show that Norfolk has breached any duty owed to them based on the facts of this case. To the contrary, in accordance with the special master's report, it must be presumed that the culvert and drainage ditch installed by Norfolk decades ago properly drained water from the property at the time that they were installed, and Norfolk has properly maintained them.[5] Therefore, there is no evidence in the record that Norfolk negligently built or maintained the culvert or drainage pipe, and there is also no evidence that Norfolk has taken any subsequent action to increase the flow of water onto the homeowners' property. Changes in the topography of the surrounding neighborhood not caused by Norfolk did not create any new duty to change the parameters of the properly-installed drainage ditch and pipe. Likewise, with regard to their nuisance claim, the homeowners have failed to show that Norfolk created a nuisance either from the improper installation of its culvert and drainage pipe or from their improper maintenance of that culvert drainage pipe. With regard to the installation of the pipe and culvert, as discussed above, the homeowners' nuisance claim is permanent in nature, and it is barred by the statute of limitations. Moreover, the special master in this case specifically found that the culvert and pipe should be presumed to have been designed to handle the runoff flowing into the basin at the time of their installation. The homeowners have presented no evidence to counter this presumption of any kind. Therefore, it cannot be said that Norfolk's construction of the pipe and culvert created a nuisance. To the contrary, it appears that Norfolk's actions may benefit the adjoining property, as the culvert and pipe, as acknowledged by the special master, allow for drainage which may not otherwise occur. Likewise, Norfolk's maintenance of the pipe has not created a subsequent nuisance. The special master found that the pipe had been kept in good working order and free of clogs and debris. There is no indication that Norfolk has taken any action which would limit the flow of water through the drainage pipe. The pipe, therefore, has been properly maintained.
3. The homeowners also failed to present a triable issue with respect to their nuisance claim against the City. The homeowners raise several contentions against the City. First, they contend that the City's construction of the CC-CSO and connection to the Norfolk drainage pipe contributed to the flooding. The special master's findings indicate, however, that the connection of the pipe has not contributed to the flooding, and that the City has properly constructed and maintained the CC-CSO.
The homeowners further contend that the City created a nuisance by approving construction permits for surrounding land and maintaining a series of underground pipes which ultimately feed into Norfolk's culvert and pipe. As a result of this new construction, including areas impervious to water, the homeowners contend that runoff increased and contributed to the flooding. This contention does not raise a triable claim under the facts of this case.
[T]he sole act of approving a construction project which leads to an increase in surface water runoff cannot impose liability for creating or maintaining a nuisance. However, where a municipality negligently constructs or undertakes to maintain a sewer or drainage system which causes the repeated flooding of property, a continuing, abatable nuisance is established, for which the municipality is liable.
(Citations and emphasis omitted.) Hibbs v. City of Riverdale, 267 Ga. 337, 338, 478 S.E.2d 121 (1996).
*139 The special master found that the homeowners' land floods because the 36-inch pipe installed by the railroad cannot handle the quantity of runoff flowing toward it during heavy storms. The facts show that the City has taken no steps to maintain the culvert, the drainage pipe, or any other pipes leading to the culvert. "[L]iability of a municipality cannot arise solely from its approval of construction projects." (Emphasis omitted.) Fulton County v. Wheaton, 252 Ga. 49, 50(1), 310 S.E.2d 910 (1984), overruled in part on other grounds, DeKalb County v. Orwig, 261 Ga. 137(1), 402 S.E.2d 513 (1991). To the contrary, in order to become responsible, a municipality must actively take control over the property in question or accept a dedication of that property. See Merlino v. City of Atlanta, 283 Ga. 186(2), 657 S.E.2d 859 (2008). The homeowners have failed to show that the City has done so in this case. Therefore, contrary to the homeowners' claims, the City did not become responsible for maintaining the railroad culvert simply because it approved plans for constructing homes in the surrounding neighborhood.[6]
Judgments reversed.
All the Justices concur, except SEARS, C.J., and HUNSTEIN, P.J., who dissent.
HUNSTEIN, Presiding Justice, dissenting.
The plaintiff homeowners' nuisance claim against Defendant Norfolk Southern Corporation is not barred by the statute of limitations. As the majority correctly states, the classification of an alleged nuisance as permanent or continuing in nature directly controls the manner in which the applicable four-year statute of limitations is applied. However, the majority incorrectly classifies the intermittent flooding on the homeowners' property that allegedly was caused by the presence of the Defendant's drainage pipe as a permanent nuisance. In reaching this conclusion, the majority asserts that to the extent the homeowners complain that the mere presence of the culvert and pipe creates a nuisance, the nuisance claim is permanent, but to the extent that they claim the drainage pipe was not properly maintained, their nuisance claim is continuing in nature. Thus, the majority reasons that the only claims by the homeowners that are not barred by the statute of limitations are those alleging that Norfolk did not keep the pipe in good working order. However, there are certainly instances in which the creation of a permanent object that causes harm or damages to others can be considered a continuing nuisance. For example, in facts similar to the ones presented here, this Court in Cox v. Cambridge Square Towne Houses, 239 Ga. 127, 236 S.E.2d 73 (1977) held that a storm sewer constituted a continuing nuisance because it caused damage to the plaintiff's property every time it rained and would continue to do so.[7] Id. at 128, 236 S.E.2d 73. This Court held that even though the storm drain was built more than four years prior to the plaintiff's complaint, the plaintiff still had the right to sue for all damages that occurred in the last four years. Id.
Contrary to the majority's contention, whether a nuisance is continuing or permanent is not dependent on whether the plaintiff complains about the "presence" of the drainage pipe or asserts that the pipe is improperly maintained. Rather, this Court has traditionally looked at whether a nuisance is transient and abatable to determine whether an alleged nuisance is continuing or *140 permanent. This Court in Shaheen v. G & G Corporation aptly describes the difference between a permanent and a continuing nuisance:
"Where the original nuisance to land is of a permanent character, so that the damages inflicted thereby are permanent, a recovery not only may, but must, be had for the entire damages, in one action; and such damages accrue from the time the nuisance is created, and from that time the statute of limitations begins to run. In the case of nuisances which are transient rather than permanent in their character, the continuance of the injurious acts is considered a new nuisance, for which a fresh action will lie; and although the original cause of action is barred, damages may be recovered for the continuance of the nuisance."
(Citations and punctuation omitted.) 230 Ga. 646, 648, 198 S.E.2d 853 (1973). This Court in Shaheen held that a continuing nuisance was established by evidence that the defendant's grading of its property caused water and dirt to be deposited on the appellant's property every time it rained. Id. Because the nuisance was classified as continuing in nature, this Court rejected the defendant's argument that the grading of its property occurred more than four years prior to the filing of the complaint and was thus barred by the statute of limitations. Id. at 647, 198 S.E.2d 853. Numerous other decisions by this Court and the Court of Appeals of Georgia have likewise recognized that a nuisance should be classified as continuing if it is transient and abatable.[8]
The majority's reliance on City Council of Augusta v. Lombard is misplaced. In Lombard, this Court stated that a permanent nuisance is one where the destruction or damage is complete upon the completion of the act by which the nuisance is created. City Council of Augusta v. Lombard, 101 Ga. 724, 727, 28 S.E. 994 (1897). However, "[w]here one creates a nuisance, and permits it to remain, it is treated as a continuing wrong and giving rise, over and over again, to causes of action." Id. The defendant in Lombard committed a one-time act, the removal of a gate from a canal, more than four years prior to the filing of the suit. Id. at 729, 28 S.E. 994. The court held that the suit was not barred by the statute of limitations because
[t]his removal did not per se constitute a nuisance, but became such in certain times of high water by discharging large and unusual quantities of water upon the premises of the plaintiff, thereby injuring him. For injuries so received, the plaintiff may... maintain an action, and for each successive inundation a new cause of action may accrue.
Id. Thus, in this case, the appellant's building of the drainage pipe did not constitute the nuisance, as the nuisances were the subsequent floodings allegedly caused by the drainage pipe. As such, each individual flooding constituted an alleged nuisance for which a new cause of action accrues. See id.
The majority cites the Court of Appeals' decision in City Council of Augusta v. Boyd, 70 Ga.App. 686, 688, 29 S.E.2d 437 (1944), for the proposition that an alleged nuisance should be considered permanent because the homeowners complain of the presence of the drainpipe. However, the Court of Appeals in Boyd never held that a complaint of the mere presence of an alleged nuisance equates to that nuisance being classified as a permanent nuisance. Rather, the court said "the improper maintenance of the ditch, is not a permanent [nuisance], but rather one which can be abated by the city at any time. ..." Id. at 688, 29 S.E.2d 437. That the plaintiff in Boyd was complaining about the city's maintenance of a ditch merely demonstrates *141 that this alleged nuisance, the maintenance of the ditch, could be stopped at any time and thus constitutes a continuing nuisance. It does not necessarily follow that a complaint about the mere presence of an alleged nuisance classified that nuisance as permanent, and the court in Boyd does not hold as much.[9]
The majority incorrectly classifies the homeowners' nuisance claim against Defendant Norfolk as part permanent in nature and part continuing in nature. Rather, the entire claim should be classified as continuing in nature. It is clear in this case that the alleged nuisance was transient as the flooding was not constant and only occurred during heavy rain. The evidence here also demonstrates that the alleged nuisance was abatable. The Special Master testified as to proposed processes to alleviate the flooding: the construction of an additional drainpipe on Defendant Norfolk's property or the widening of the drainpipe already there. Because the nuisance here should have been classified as a continuing nuisance, the only damages against Defendant Norfolk that are barred by the four-year statute of limitations are those that were incurred by flooding that occurred more than four years prior to the filing of the Plaintiffs' complaint. See Cox, 239 Ga. at 128, 236 S.E.2d 73.
In addition to the homeowners' claims against Defendant Norfolk not being barred by the statute of limitations, a genuine issue of material fact exists as to whether Defendant Norfolk's drainage pipe caused the damage to the homeowners' property. The trial court in this case relied on the findings of a Special Master. The Special Master concluded that the homeowners' residence floods because the 36-inch pipe that ultimately drains the basin is not large enough to empty that basin without creating a backup of storm water. Contrary to the majority's assertion, the Special Master did not conclude that at the time of the pipe's installation, the structures complied with the prevailing standards and adequately drained the homeowners' property. Rather, the Special Master noted that the date the pipe was built is unknown and old designs for the pipe cannot be located, and that the pipe was probably sized to accommodate the flow from the drainage basin as it existed many decades ago.[10] The Special Master also explains that the flooding on the property caused by the drainage pipe has existed for years and is not a recent occurrence.
The Special Master notes that it is likely that additional development surrounding the parties would generate more impervious sources, therefore generating additional water runoff through the drainage pipe and culvert. This assertion certainly creates a question as to whether the surrounding development is a superceding cause to the flooding on the homeowners' property that the Special Master concludes is a result of Defendant Norfolk's drainage pipe. However, because the Special Master does not specify how much the surrounding development may have contributed to the water runoff or that it even definitely occurred, this issue of causation is not appropriately decided on a motion for summary judgment. Therefore, I respectfully dissent to Divisions 1 and 2 of the majority's opinion and would affirm the decision of the Court of Appeals.
I am authorized to state that Chief Justice Sears joins in this dissent.
NOTES
[1] A nuisance is anything that causes hurt, inconvenience, or damage to another and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary, reasonable man.
OCGA § 41-1-1.
[2] The Norfolk pipe is connected to an additional pipe that leads to the City's Clear Creek combined sewer overflow culvert (CC-CSO). Prior to the construction of the CC-CSO, Norfolk's pipe emptied into Clear Creek.
[3] Although the section of land involved in this litigation was sold to a developer in December 2004 as a part of the "Belt Line" project, Norfolk's subsidiary retained ownership of the railroad tracks, the roadbed, and all associated railroad appurtenances.
[4] We have previously held:
The Restatement's approach to dealing with continuing nuisances is both comprehensive and workable, and although it appears never to have been adopted by any decision in this jurisdiction, a review of our cases reveals that its application would have produced the same results. The Restatement approach appears to be the general rule and we adopt it.
(Citation omitted.) Cox v. Cambridge Square Towne Houses, 239 Ga. 127, 128-129, 236 S.E.2d 73 (1977).
[5] This fact remains true even if Norfolk also created an embankment on which to construct its tracks.
[6] In City of Bowman v. Gunnells, 243 Ga. 809, 811(2), 256 S.E.2d 782 (1979), this Court established
guidelines for determining whether a municipality will be liable for creating or maintaining a nuisance: the defect or degree of misfeasance must exceed mere negligence (as distinguished from a single act); the act complained of must be of some duration and the maintenance of the act or defect must be continuous or regularly repetitious; and there must be a failure of municipal action within a reasonable time after knowledge of the defect or dangerous condition.
(Footnote omitted.) Hibbs, supra, 267 Ga. at 337, 478 S.E.2d 121.
[7] In Cox, this Court recognized the difficulties that courts have had in determining whether a nuisance is permanent or temporary for statute of limitations purposes, and adopted the Restatement approach to classifying continuing nuisances in an effort to alleviate the confusion. 239 Ga. at 128-129, 236 S.E.2d 73.
[8] See, e.g., City of Columbus v. Myszka, 246 Ga. 571, 572, 272 S.E.2d 302 (1980) (distinguishing a continuing, abatable nuisance from a permanent nuisance); Brand v. Montega Corp., 233 Ga. 32, 33, 209 S.E.2d 581 (1974) ("In a surface-water invasion case, the continuing invasions amount to a continuing trespass which is the equivalent of a continuing nuisance."); City of Gainesville v. Waters, 258 Ga.App. 555, 558, 574 S.E.2d 638 (2002) ("Where a nuisance is not permanent in its character, but is one which can and should be abated by the person erecting or maintaining it, every continuance of the nuisance is a fresh nuisance for which a fresh action will lie."); City Council of Augusta v. Boyd, 70 Ga.App. 686, 688, 29 S.E.2d 437 (1944) (holding that the nuisance is not permanent because it can be abated at any time).
[9] This Court in Hibbs v. City of Riverdale, a case cited by the majority, recognizes that a party can be held liable for a continuing nuisance whether the party constructs or maintains the nuisance. 267 Ga. 337, 338, 478 S.E.2d 121 (1996).
[10] Even if the Special Master were to find that the Defendant's drainage pipe did not cause flooding when it was created, this does not necessarily preclude the Plaintiffs' claim. As the Restatement (Second) of Torts § 834(f) states: In some [nuisance] cases the physical condition created is not of itself harmful, but becomes so upon the intervention of some other forcethe act of another person or force of nature. In these cases the liability of the person whose activity created the physical condition depends upon the determination that his activity was a substantial factor in causing the harm, and that the intervening force was not a superseding cause. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2036826/ | 885 N.E.2d 766 (2008)
THOMAS
v.
CITY OF HAMMOND.
No. 45A03-0708-CV-417.
Court of Appeals of Indiana.
April 30, 2008.
CRONE, J.
Disposition of Case by Unpublished Memorandum Decision. Affirmed.
BARNES, J. Concurs.
BRADFORD, J. Concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2632487/ | 150 P.3d 1003 (2006)
2007-NMCA-014
STATE of New Mexico, Plaintiff-Appellee,
v.
Justo RUIZ, Defendant-Appellant.
No. 24,536.
Court of Appeals of New Mexico.
November 22, 2006.
Certiorari Denied January 18, 2007.
*1005 Patricia A. Madrid, Attorney General, Max Shepherd, Assistant Attorney General, Albuquerque, NM, for Appellee.
John Bigelow, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
Certiorari Denied, No. 30,160, January 18, 2007.
OPINION
ROBINSON, Judge.
{1} Justo Ruiz (Defendant) appeals multiple convictions for criminal sexual penetration of a minor (CSPM) and criminal sexual contact with a minor (CSCM). He raises eight issues challenging (1) the denial of a motion to recuse; (2) the procedure utilized by the district court in order to assess the admissibility of the victim's testimony; (3) the admission of evidence of prior bad acts; (4) the admission of hearsay statements by the victim; (5) the exclusion of a demonstrative aid; (6) the exclusion of a character witness for the defense; (7) the admission of the testimony of a "surprise" rebuttal witness; and (8) the refusal of a proposed jury instruction concerning a viewing of the scene. We reject Defendant's assertions of error and, therefore, affirm.
I. BACKGROUND
{2} Defendant's convictions stem from a series of incidents that occurred between November 1, 1995 and January 31, 1998. Throughout that time frame, the victim (S.G.) was a friend of one of Defendant's daughters and she frequently visited the Ruiz household.
{3} In July of 1998, Officer Stan Mascarenas contacted S.G.'s mother. He indicated that Defendant's eldest daughter, Lupita, claimed to have witnessed an incident in which Defendant looked between S.G.'s legs. A safehouse interview was scheduled several days later. In the interim, S.G.'s mother repeatedly questioned S.G. in an effort to *1006 determine whether a sexual assault of some sort had occurred. Initially, S.G. denied that anything serious had happened. Upon further inquiry, however, S.G. disclosed that Defendant had touched her. Thereafter, S.G. described increasingly grave assaultive episodes.
{4} In light of S.G.'s allegations, Defendant was charged with numerous counts of CSPM and CSCM. These charges were combined with a number of additional counts arising out of Defendant's alleged misconduct with two other child victims and tried to a jury in December of 1999. Although the jury returned a number of guilty verdicts, Defendant's convictions were reversed on grounds that the counts associated with different victims were improperly tried in a single proceeding, rather than severed.
{5} On remand, Defendant was charged with two counts of CSCM and three counts of CSPM based exclusively on S.G.'s allegations. Prior to trial, Defendant filed two related motions. In the first motion, Defendant urged the district judge to recuse himself based on certain expressions of personal opinion that had been articulated at the sentencing hearing in the course of the first trial. In the second motion, Defendant sought a ruling on the admissibility of S.G.'s testimony, arguing that suggestive and/or coercive interview techniques had so severely compromised her credibility that she should be barred from appearing as a witness. Both motions were denied.
{6} The prosecution's key witness was S.G., who testified that Defendant had begun touching her when she was in the third grade. The touching later progressed to penetration. S.G. also testified that Defendant would cause her to touch him and to perform fellatio. S.G. indicated that this course of conduct continued throughout the fourth and fifth grades until she ceased visiting the Ruiz household.
{7} Defendant's eldest daughter, Lupita, testified at trial as well. She described an incident in July 1997, where she witnessed Defendant touching S.G.'s vagina. Lupita explained that she told her mother about this incident a year later. Her mother then notified the authorities, triggering the official inquiry. Lupita further testified that she wrote about the incident in her diary, which her mother later turned over to investigating officers.
{8} Among other witnesses, the State also called S.G.'s mother. She described her efforts to learn what, if anything, had happened to S.G. at the Ruiz household. She also testified to warning signs that she had missed over the years, including questions and/or comments that S.G. had made, suggesting that she had been the victim of sexual assaults.
{9} Finally, the State called Dr. Cheryl Whitman, a physician who had conducted a sexual assault examination in this case. She testified that the exam revealed two partial transections of the hymen and the hymenal opening was abnormally large for a girl of S.G.'s age. Dr. Whitman opined that these conditions were consistent with sexual abuse, although she acknowledged that her findings could not be characterized as conclusive.
{10} The theory of the defense focused on credibility. Although Defendant's character witness was not permitted to describe his reputation for truthfulness, Defendant was permitted to call a forensic psychologist, Dr. Ned Siegel, who opined that Defendant did not fit the standard profile for pedophilia. Defendant also called two expert witnesses to attack S.G.'s credibility. One of the witnesses, Dr. Charles Glass, testified that, in light of S.G.'s personality type, she would be highly susceptible to suggestion. The other witness, Dr. Phillip Esplin, identified suggestive interview techniques and described the negative impact of such techniques on the reliability of sexual abuse reporting. In response to a series of hypothetical questions, Dr. Esplin opined that the repetitive questioning to which S.G. was subjected, as well as the relative lack of specificity and the increasing gravity of her allegations, over time gave rise to concerns about false memories, which could then result in false accusations. Over Defendant's objection, the State was permitted to call an expert witness in rebuttal, Dr. Michael Jepsen, who testified that it was unlikely that the sort of questioning *1007 that took place in this case would generate false memories.
{11} Upon Defendant's motion, the jury was also transported to the Ruiz home to view the scene. After the viewing, Defendant requested an instruction, clarifying that the jurors should not assume that the furnishings that they saw had been in the same locations as they had been at the time of the alleged sexual assaults. The requested instruction was denied.
{12} At the conclusion of the four-day trial, the jury deliberated briefly before returning guilty verdicts on all counts. Defendant was sentenced to sixty years. This appeal followed.
II. DISCUSSION
A. Recusal
{13} Defendant contends that the district court erred in denying his motion to recuse. We review the district court's decision for abuse of discretion. See State v. Cherryhomes, 114 N.M. 495, 500, 840 P.2d 1261, 1266 (Ct.App.1992).
{14} Defendant asserts that the district judge should not have presided over the second trial because he expressed a bias in the course of his remarks at the sentencing hearing, which followed the first trial. Specifically, the judge described his historical experiences dealing with allegations of sexual abuse and his efforts over the years to develop a sense about the veracity of such allegations. He then stated that, in light of this backdrop of experience, he thought that S.G. and the other victims involved in the first trial were being truthful and he believed that Defendant had sexually abused the victims.
{15} "In order to require recusal, bias must be of a personal nature against the party seeking recusal." State v. Hernandez, 115 N.M. 6, 20, 846 P.2d 312, 326 (1993). Moreover, the bias must "stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." United Nuclear Corp. v. Gen. Atomic Co., 96 N.M. 155, 247, 629 P.2d 231, 323 (1980) (internal quotation marks and citation omitted).
{16} In satisfaction of the extrajudicial source requirement, Defendant relies upon the district judge's comments concerning his training and experiences in dealing with cases involving allegations of sexual abuse. However, these are not extrajudicial sources. As we have previously observed, "members of . . . all courts . . . are human beings. They cannot avoid having histories or opinions; indeed, they may well have been selected for their offices in part on that basis. Recognition of this reality counsels us against requiring that every decisionmaker start with a clean slate." Las Cruces Prof'l Fire Fighters v. City of Las Cruces, 1997-NMCA-031, ¶ 26, 123 N.M. 239, 938 P.2d 1384.
{17} Nor does the judge's comments "stem from . . . some basis other than what [he] learned from his participation in the case." United Nuclear Corp., 96 N.M. at 247, 629 P.2d at 323 (internal quotation marks and citation omitted). To the contrary, his opinions were based precisely upon what he heard and observed in the course of the proceedings. To the extent that Defendant suggests that the proceedings on remand constituted a separate case, we reject the argument. See State v. Belgarde, 62 Wash. App. 684, 815 P.2d 812, 816-17 (1991) (observing that a defendant's retrial, following reversal of an earlier conviction, constituted further proceedings in the same case as opposed to new proceedings or a new case).
{18} Our reported decisions indicate that, in cases such as this where a new trial is conducted on remand, "whether the original judge would reasonably be expected . . . to have substantial difficulty in putting out of his or her mind previously-expressed views or findings," is to be taken into consideration. State v. Ricky G., 110 N.M. 646, 649, 798 P.2d 596, 599 (Ct.App.1990) (internal quotation marks and citation omitted). Defendant asserts that the application of this standard to the case at hand indicates that the district judge should have recused himself, primarily in light of the critical importance of credibility determinations throughout the proceedings.
*1008 {19} As a practical matter, we acknowledge that the expression of personal opinion about the credibility of a complaining witness and the guilt of a defendant gives rise to question whether the judge could put such opinions out of his or her mind in order to ensure that the defendant received a fair trial on remand. However, authorities establish a presumption that judges will be able to set aside previously-expressed opinions and preside in a fair and impartial manner on remand. See, e.g., United States v. Howard, 218 F.3d 556, 566 (6th Cir.2000) (holding that the fact that the judge on remand had presided over the defendant's first trial and had expressed the opinion that the victim's testimony was highly credible did not support recusal for bias); United States v. Nelson, 718 F.2d 315, 321 (9th Cir.1983) (holding that the judge's stated belief that the defendant was guilty did not disqualify the judge from presiding on remand); In re S.G., 91 P.3d 443, 447 (Colo.Ct.App.2004) (observing that "a judge's opinion formed against a party from evidence before the court in a judicial proceeding, even as to the guilt or innocence of a defendant, is generally not a basis for disqualification"); Frederick v. State, 37 P.3d 908, 951-52 (Okla.Crim.App.2001) (rejecting a claim of judicial bias based on comments that the defendant's first conviction and sentence should have been affirmed and that retrial was unnecessary where the record demonstrated that the judge conducted proceedings appropriately on remand). Although we seriously question the ability of any judge to perform in anything but a normal human capacity as shown by these expressly partial or biased statements and opinions, we are not inclined to contravene that weight of authority. We, therefore, reject Defendant's argument as a basis for reversal of his convictions.
B. Assessment of Admissibility of Testimony of S.G.
{20} Defendant contends that the district court applied the wrong legal standard when assessing the admissibility of S.G.'s testimony. We apply de novo review. See State v. Torres, 1999-NMSC-010, ¶ 28, 127 N.M. 20, 976 P.2d 20 ("[T]he threshold question of whether the trial court applied the correct evidentiary rule or standard is subject to de novo review on appeal.").
{21} Prior to trial, Defendant filed a motion seeking to exclude S.G.'s testimony on the theory that suggestive and/or coercive interview techniques had so severely undermined the reliability of her memories that she should be prohibited from testifying. Defendant, therefore, sought a "taint" hearing pursuant to a novel procedure employed in New Jersey as set forth in the case of State v. Michaels, 136 N.J. 299, 642 A.2d 1372 (1994). Although the district judge expressed some doubt about the applicability of the Michaels approach, he conducted a hearing in order to assess the admissibility of S.G.'s testimony. At the hearing, Defendant presented the testimony of two experts, Drs. Esplin and Glass. They characterized the questioning to which S.G. had been subjected as suggestive and identified problematic features of her reporting. Dr. Esplin concluded that there was a "substantial likelihood that some of the information obtained from S.G. was not reliable" and Dr. Glass opined that S.G.'s memories were "not . . . necessarily valid." The State responded through cross-examination and argument, asserting that, while any negative effect that the various interviews might have had on the reliability of S.G.'s recollections, it did not provide an adequate basis for the wholesale exclusion of her testimony. At the conclusion of the hearing, the district judge announced that Defendant's motion to exclude S.G.'s testimony would be denied. The ruling was later memorialized in a written order.
{22} On appeal, Defendant contends that the district court erred in failing to strictly adhere to the approach outlined in Michaels. We disagree. Although New Mexico's courts have recognized the dangers associated with suggestive interviewing techniques in cases of this nature, see In re Troy P., 114 N.M. 525, 528, 842 P.2d 742, 745 (Ct.App.1992), neither this Court, nor the New Mexico Supreme Court, has adopted the novel Michaels approach, which places a heavy burden on the proponent of child victim testimony to establish its reliability. Like many other states, New Mexico rejects Michaels in favor of our well-established competency jurisprudence. *1009 See, e.g., Pendleton v. Kentucky, 83 S.W.3d 522, 525-26 (Ky.2002), superceded by Jones v. Kentucky, 2003 WL 21713776, at *1 (Ky.Ct.App. July 25, 2003); English v. State, 982 P.2d 139, 145-47 (Wyo.1999); In re A.E.P., 135 Wash.2d 208, 956 P.2d 297, 307 (1998) (Talmadge, J., dissenting) (en banc); State v. Olah, 146 Ohio App.3d 586, 767 N.E.2d 755, 758-60 (2001); Ardolino v. Warden, Me. State Prison, 223 F.Supp.2d 215, 237-39 (D.Me.2002).
{23} In New Mexico, we apply a general presumption that all persons are competent to appear as witnesses. See Rule 11-601 NMRA. When an individual's competency to testify is challenged, the district courts are merely required to conduct an inquiry in order to ensure that he or she meets a minimum standard, such that a reasonable person could "put any credence in their testimony." State v. Hueglin, 2000-NMCA-106, ¶ 22, 130 N.M. 54, 16 P.3d 1113 (internal quotation marks and citation omitted). This methodology stems from a core principle of modern civil and criminal procedure, whereby questions of credibility are consigned to juries, rather than judges. Id.; State v. Stampley, 1999-NMSC-027, ¶ 34, 127 N.M. 426, 982 P.2d 477 ("The jury alone is the judge of the credibility of the witnesses and determines the weight afforded to testimony.").
{24} Our analysis of the record, transcript, and briefs indicates that the district judge proceeded in an appropriate manner. As previously stated, a hearing was conducted at which Defendant was permitted to present extensive expert testimony identifying potential weaknesses in S.G.'s capacity to credibly testify. Dr. Esplin concluded that there was a substantial likelihood that some of the information obtained from S.G. was not reliable, and Dr. Glass opined that S.G.'s memories were not necessarily valid. In light of this testimony, the district judge acknowledged a "possibility that taint occurred." However, the district court did not find the experts' testimonies, or the underlying facts and circumstances, to so severely undermine S.G.'s credibility as to warrant the exclusion of her testimony. Although Defendant does not challenge the propriety of this determination as such, we note no abuse of discretion.
{25} Defendant has challenged the State's reliance upon our competency jurisprudence as a basis for affirmance on grounds that this legal theory was not specifically advanced at the district court level. However, we note that the applicability of the Michaels approach was the subject of debate below and, as such, the broader procedural issue was clearly presented for the district court's consideration. Insofar as questions of procedure are quintessentially legal in nature, we reject Defendant's suggestion that reliance upon our competency jurisprudence implicates a fact-dependent inquiry, which cannot properly be considered in the first instance on appeal. See State v. Franks, 119 N.M. 174, 177, 889 P.2d 209, 212 (Ct.App.1994). In summary, therefore, we conclude that the procedure employed by the district court below was appropriate and we reject Defendant's second assertion of error.
C. Evidence of Prior Bad Acts
{26} Defendant contends that highly prejudicial evidence of uncharged misconduct was improperly presented to the jury. We review the admission or exclusion of evidence of this nature for abuse of discretion. State v. Otto, 2005-NMCA-047, ¶ 10, 137 N.M. 371, 111 P.3d 229, cert. granted, 2005-NMCERT-004, 137 N.M. 455, 112 P.3d 1112.
1. Lupita Ruiz's Testimony
{27} Defendant's eldest daughter, Lupita, described an incident in July 1997, wherein she witnessed Defendant touching S.G.'s genital area. Defendant contends that this testimony constitutes evidence of prior bad acts and, as such, it should have been excluded pursuant to Rule 11-404(B) NMRA. We disagree.
{28} Rule 11-404(B) provides in relevant part: "Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith." The inclusion of the word "other" connotes crimes, wrongs, or acts that are not the subject of the proceedings viz uncharged misconduct.
*1010 {29} As described at greater length above, Defendant was charged with five offenses, which were essentially distinguishable by their general nature (contact versus penetration) and timing (annualized). Lupita's testimony provided evidentiary support for one incident of CSCM occurring in July 1997. Insofar as Defendant was charged with a single count of CSCM within that time frame, Lupita's testimony provided direct evidence in support of that charge. Thus, Lupita's testimony cannot properly be classified as evidence of uncharged misconduct, rendering Rule 11-404(B) inapplicable.
{30} In his briefs to this Court, Defendant urges this Court to reject the foregoing analysis on grounds that the arguments were not framed in this manner below. Although the parties focused on Rule 11-404(B) and the historical "lewd and lascivious disposition" exception below, our review of the record reveals that the State also argued that the challenged evidence provided support for the single count of CSCM charged for the 1997 calendar year. As a result, we do not hesitate to rely on this position as grounds for affirmance.
2. Cindy Ruiz's Testimony
{31} At trial, the State was permitted to read the prior testimony of Defendant's ex-wife, Cindy Ruiz, into evidence. In pertinent part, this testimony described a specific incident that occurred when S.G. was spending the night as a guest. Believing that Defendant was taking an unusually long time to wish the children good night, she looked into their room and observed Defendant crouching beside S.G.'s bed, stroking her forehead and speaking softly to her.
{32} Defendant objected to the admission of this testimony on grounds that it was irrelevant and it served only to prejudice Defendant by demonstrating that his ex-wife was willing to testify against him. He renews these arguments on appeal, adding that the incident could be classified as a prior bad act subject to exclusion under Rule 11-404(B). We are unpersuaded.
{33} As the State argued below, the occurrence described by Cindy tended to establish that Defendant behaved in an unusual manner, displaying a peculiar form and degree of attention toward S.G. The challenged testimony, therefore, tended to rebut two arguments advanced by the defense that (1) Defendant could not have committed the alleged assaults because they occurred in a very small house and the other occupants did not witness anything suspicious; and (2) Defendant could not have committed the alleged assaults because he did not pay special attention to S.G., or otherwise endeavor to "groom" her for sexual abuse in the typical manner of pedophiles. As a result, we conclude that Cindy's testimony was both relevant and admissible for purposes apart from the prohibited realm of prior bad acts evidence. To the extent that Cindy's willingness to testify against Defendant prejudiced him, the district court acted well within its discretion in determining that the probative value of her testimony outweighed its prejudicial effect. See Rule 11-403 NMRA; State v. Chamberlain, 112 N.M. 723, 726, 819 P.2d 673, 676 (1991) ("The trial court is vested with great discretion in applying Rule [11-]403, and it will not be reversed absent an abuse of that discretion.").
D. Hearsay
{34} Defendant also argues that the district court erred by admitting two out-of-court statements that S.G. made to her mother, contending that this evidence constituted impermissible hearsay. Generally speaking, we review evidentiary rulings, including the admission of hearsay, for abuse of discretion. See State v. Lopez, 2000-NMSC-003, ¶ 10, 128 N.M. 410, 993 P.2d 727.
{35} The challenged statements were made by S.G. to her mother sometime in the winter of 1997 or 1998, and evinced concern about pregnancy and/or rape. The State first attempted to introduce evidence of these statements through the testimony of S.G.'s mother on direct examination. Defendant raised a hearsay objection, which the State disputed. After a bench conference, the district court ruled that the statements might be introduced if S.G. was recalled to testify about them. The State complied. On re-direct examination, S.G. was only able to *1011 recall in a very general sense that she had asked her mother about these subjects. The district court then permitted the State to recall S.G.'s mother to the stand. She specifically testified that S.G. had stated, "Mom, I think I've had sex" and "Mom, I think I've been raped." This testimony is the subject of Defendant's challenge on appeal.
{36} As an initial matter, we must determine whether the statements constitute hearsay. Hearsay is generally defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Rule 11-801(C) NMRA. A statement which is not offered to prove the truth of the matter asserted does not fall within the scope of the general prohibition. Accordingly, a statement offered merely to prove that it was made, and not to prove truth, is characterized as a "verbal act" that is admissible irrespective of any limitations on hearsay testimony. See State v. Glen Slaughter & Assocs., 119 N.M. 219, 222, 889 P.2d 254, 257 (Ct.App.1994); State v. Aragon, 85 N.M. 401, 402, 512 P.2d 974, 975 (Ct.App.1973). Similarly, an out-of-court statement made by a witness who testifies at trial is not hearsay if it is offered to rebut an express or implied charge of recent fabrication or improper influence. See Rule 11-801(D)(1)(b) NMRA.
{37} As previously noted, the primary theory of the defense was that S.G.'s allegations were the product of suggestive and/or coercive interview techniques. Defendant argued that S.G.'s memories of assaultive episodes were false, having been contrived in the course of the investigatory process. As partial support for this theory, Defendant focused the jury's attention on S.G.'s failure to report the abuse at any time prior to the police investigation. In light of the defense strategy, the challenged statements could properly have been admitted as disclosures. Insofar as Defendant made an issue of S.G.'s failure to report, the fact that the statements were made had probative value independent of truth. This brings them within the verbal acts exception. Insofar as Defendant developed the theory of recent fabrication and/or improper influence, the fact that the statements were made prior to the criminal investigation also tended to rebut this theory. This brings the statements within the exception articulated in Rule 11-801(D)(1)(b). Accordingly, we conclude that the statements could properly have been admitted as non-hearsay.
{38} We acknowledge that the district court appears to have admitted the statements on a different legal theory. As a general rule, however, we will uphold the decision of a district court if it is right for any reason. See State v. Beachum, 83 N.M. 526, 527, 494 P.2d 188, 189 (Ct.App.1972) ("A decision of the trial court will be upheld if it is right for any reason."). Given that the State advanced the disclosure argument below, we affirm on that basis. See generally State v. Fairbanks, 2004-NMCA-005, ¶ 12, 134 N.M. 783, 82 P.3d 954 (expressing reluctance to affirm based on an argument not advanced below).
E. Demonstrative Evidence
{39} Defendant contends that the district court erred in prohibiting him from showing the jury photographic images from a medical treatise, which he sought to utilize in the course of cross-examining a witness for the prosecution. We review for abuse of discretion. See State v. Worley, 100 N.M. 720, 723, 676 P.2d 247, 250 (1984) (holding that the admission or exclusion of evidence is within discretion of the trial court and that such determinations will not be disturbed on appeal absent clear abuse of discretion); see also State v. Brown, 1998-NMSC-037, ¶ 25, 126 N.M. 338, 969 P.2d 313 (noting that abuse of discretion is the standard of review for limitations on cross-examination).
{40} The images in question related to the various procedures that may be utilized in order to examine juvenile sexual assault victims. As mentioned above, the State called Dr. Whitman to describe her findings. She testified that she had observed two partial transections of S.G.'s hymen, which are generally regarded as indicative of trauma consistent with sexual abuse. On cross-examination, Defendant sought to undermine the significance of these findings by highlighting shortcomings associated with the "frog leg" *1012 examination position that Dr. Whitman had utilized. To this end, he attempted to display two images from a medical treatise, demonstrating how indicia of hymenal trauma, such as notches or partial transections, which appear when a subject is examined in the "frog leg" position, may disappear when a subject is moved to the "knee-chest" position. The State objected on grounds that Defendant had failed to disclose the images in the course of pretrial discovery. The district court sustained the objection.
{41} The Rules of Criminal Procedure provide that a defendant must disclose "books, papers, documents, [and] photographs," which are in his possession and which he "intends to introduce in evidence at the trial[.]" Rule 5-502(A)(1) NMRA. Defendant contends that because he did not intend to introduce the images from the medical treatise as exhibits, they were not subject to the disclosure requirement. As authority for this position, Defendant relies upon his characterization of the images as "demonstrative evidence." Insofar as the term "demonstrative evidence" encompasses all material that is "addressed directly to the senses of the court or jury . . . as where various things are exhibited in open court," Defendant's characterization is probably accurate. State v. Tollardo, 2003-NMCA-122, ¶ 10, 134 N.M. 430, 77 P.3d 1023. However, Rule 5-502(A)(1) does not exempt demonstrative evidence from a defendant's duty to disclose. To the contrary, it expressly applies to forms of evidence that are classically demonstrative, such as "tangible objects." Id. As such, we reject Defendant's suggestion that demonstrative evidence is subject to a blanket exemption from the general duty of disclosure.
{42} Defendant may rely upon the distinction between the use of demonstrative material as an aid to cross-examination and the designation of such material as "evidence" that is fit for use as a formal exhibit. See State v. Gallegos, 92 N.M. 370, 379, 588 P.2d 1045, 1054 (Ct.App.1978) (holding that the district court erred in requiring the defense to disclose a report, which the defense did not intend to introduce into evidence, and which was merely designed to aid in the cross-examination of a witness for the State). However, even if we were to assume that the images should have been exempted from Rule 5-502(A)(1) in this manner, we do not regard their exclusion as reversible error.
{43} Our review of the transcript reveals that Defendant cross-examined Dr. Whitman very thoroughly on the various examination procedures and the danger of false findings of trauma where the subject is examined in the frog leg position alone. Although the images from the treatise might have bolstered Defendant's argument, there can be no question that the weaknesses in Dr. Whitman's approach and the inconclusive nature of her findings were conveyed to the jury through Dr. Whitman's testimony. As a result, we cannot say that there is a reasonable possibility that the excluded images might have affected the jury's verdict. See generally State v. Balderama, 2004-NMSC-008, ¶ 41, 135 N.M. 329, 88 P.3d 845 (observing that "[e]rror in the exclusion of evidence in a criminal trial is prejudicial and not harmless if there is a reasonable possibility that the excluded evidence might have affected the jury's verdict"); State v. Woodward, 121 N.M. 1, 12, 908 P.2d 231, 242 (1995) (concluding that the refusal to admit cumulative evidence was not an abuse of discretion).
F. Character Witness
{44} Defendant challenges the district court's exclusion of character evidence that he sought to introduce through the testimony of a defense witness, Denise Kusel. We review the district court's ruling for abuse of discretion. See State v. Ewing, 97 N.M. 235, 237, 638 P.2d 1080, 1082 (1982) (observing that the admission or exclusion of character testimony is committed to the sound discretion of the district court).
{45} Generally speaking, evidence of "a pertinent trait of character" of the accused in a criminal case may be introduced through reputation or opinion testimony. Rule 11-404(A)(1) NMRA; Rule 11-405(A) NMRA. Below, Defendant specifically stated that he sought to call Kusel to testify to Defendant's "reputation for truth in the community." The State objected on grounds that Defendant's truthfulness was not a pertinent trait of character and was not an issue, insofar as *1013 Defendant had not yet testified. The district court agreed. We perceive no abuse of discretion, particularly in light of the district court's invitation to call Kusel after Defendant testified. Although Defendant later elected not to testify, he made no further effort to recall Kusel, or to otherwise renew the matter. Because the district court lacked any opportunity to reconsider in light of the altered defense strategy, it would be inappropriate to second-guess the district court's approach with the benefit of hindsight. See generally In re Ruben D., 2001-NMCA-006, ¶ 21, 130 N.M. 110, 18 P.3d 1063 ("Preservation requires a party to apprise the court of possible error in a timely and specific manner so that the court can prevent it.").
{46} Below, Defendant argued that his character for truthfulness became a pertinent issue after one of his expert witnesses, Dr. Siegel, related the fact that Defendant had denied the charges. The district court rejected this argument on grounds that Dr. Siegel's hearsay comment did not constitute substantive evidence. It merely described a portion of the basis for his opinions. We note that the comment was not offered for the truth of the matter asserted. Under such circumstances, the district court could reasonably have concluded that Dr. Siegel's testimony did not render Defendant's character for truthfulness a pertinent matter within the scope of Rule 11-404(A)(1).
{47} On appeal, Defendant has taken the position that Defendant's character for truthfulness automatically became a "pertinent trait of character" when the jury was informed of the charges. Because this argument was not advanced below, it is not properly before us on appeal. See generally State v. Lucero, 104 N.M. 587, 590, 725 P.2d 266, 269 (Ct.App.1986) (rejecting a claim of error where the lower court "had no opportunity to consider the merits of, or to rule intelligently on, the argument defendant now puts before us") (citation omitted). Even if the argument had been properly preserved, its merit seems doubtful. Insofar as all of the pending charges were sex crimes, rather than crimes of fraud or deceit, it is unclear how Defendant's character for truthfulness was implicated. Cf. State v. Trejo, 113 N.M. 342, 346, 825 P.2d 1252, 1256 (Ct.App.1991) (observing that a crime of violence has less bearing upon the honesty of a witness than a crime involving fraud or deceit).
{48} Finally, Defendant has suggested that Kusel should have been permitted to testify to other pertinent character traits apart from truthfulness. However, she was not offered for alternative purposes below. We, therefore, have no idea what other pertinent traits, if any, Kusel was competent to testify about. Absent an offer of proof, we are incapable of engaging in a reasoned analysis. See generally Rule 11-103(A)(2) NMRA; State v. Garcia, 100 N.M. 120, 123, 666 P.2d 1267, 1270 (Ct.App.1983) (concluding that the defendant failed to make an offer of proof as required in order to preserve an issue of whether the district court properly excluded testimony). As a result, the matter is not subject to appellate review. See State v. Ryan, 2006-NMCA-044, ¶ 46, 139 N.M. 354, 132 P.3d 1040.
G. Surprise Rebuttal Witness
{49} Defendant asserts that a surprise rebuttal witness for the State, Dr. Jepsen, was improperly permitted to testify at trial. Both the admission of rebuttal testimony and the election of remedies for discovery violations are within the discretion of the court. See State v. Simonson, 100 N.M. 297, 302, 669 P.2d 1092, 1097 (1983); State v. Wilson, 2001-NMCA-032, ¶ 39, 130 N.M. 319, 24 P.3d 351, abrogated by State v. Montoya, 2005-NMCA-078, ¶ 11, 137 N.M. 713, 114 P.3d 393. We, therefore, review for abuse of discretion only.
{50} In order to evaluate Defendant's assertion of error, we must consider the following factors: (1) whether the State breached some duty, or intentionally deprived Defendant of evidence; (2) whether the evidence was material; (3) whether the non-disclosure of the evidence prejudiced Defendant; and (4) whether the district court cured the failure to timely disclose the evidence. State v. McDaniel, 2004-NMCA-022, ¶ 8, 135 N.M. 84, 84 P.3d 701.
*1014 {51} With regard to the first factor, we will assume that the State breached a duty, insofar as its failure to timely disclose could have violated Rule 5-501(A)(5) NMRA. However, none of the remaining factors weigh in Defendant's favor.
{52} The second factor materiality is established upon a showing that "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." McDaniel, 2004-NMCA-022, ¶ 11, 135 N.M. 84, 84 P.3d 701 (internal quotation marks and citation omitted). In this case, Defendant has not indicated how early disclosure would have affected the outcome of his trial. Because Defendant has neither challenged the sufficiency of the evidence that led to his convictions, nor claimed that earlier disclosure would have changed his defense at trial, he has not made a showing of materiality. Id. ¶ 13.
{53} The third factor prejudice similarly depends upon an affirmative demonstration of harm. See id. ¶ 6. Although Defendant claims that the failure to timely disclose impeded his cross-examination of the witness, he has not shown how his cross-examination would have been improved by earlier disclosure, or how he would have prepared differently for trial. Moreover, our review of the record reveals that defense counsel's cross-examination was clear, focused, and efficacious. As a result, Defendant has not made a showing of prejudice. See id. ¶ 15.
{54} The fourth and final factor curative action concerns the form of remedy, or sanction imposed by the district court in response to the untimely disclosure. The transcript indicates that the district court granted defense counsel "ample opportunity" to interview the witness before he testified, recessing for approximately an hour to that end. This appears to have been an appropriate response under the circumstances. See, e.g., State v. Padilla, 91 N.M. 800, 803, 581 P.2d 1295, 1298 (Ct.App.1978).
{55} In summary, Defendant had failed to demonstrate materiality, prejudice, or that the district court's curative action was inadequate. We, therefore, reject his challenge to the admission of the testimony of the State's rebuttal witness.
H. Jury Instruction
{56} Finally, Defendant contends that the district court erred in refusing to instruct the jury about alterations to the arrangement of furnishings in the Ruiz household. We review the matter de novo. See State v. Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996 ("The propriety of jury instructions given or denied is a mixed question of law and fact. Mixed questions of law and fact are reviewed de novo.").
{57} Defendant's proposed instruction was as follows: "This morning you were provided with a jury view of the house. You should not assume that any of the furniture in the house or garage is the same as it was five to eight years ago, during the time period at issue in this case." Through this instruction, Defendant sought to minimize the impact that a bed, positioned in the garage at the time of the viewing, might have had on the jurors.
{58} Defendant's proposed instruction appears to be unique. The only legal basis advanced in its support is the use note prefacing the uniform jury instructions, which provides that the courts may give brief, impartial instructions for matters not otherwise specifically covered. We believe this is so generalized as to be unhelpful.
{59} By and large, jury instructions describe principles of law, such as the elements of offenses, burdens of proof, and presumptions for the benefit of the jury. Guidance is also provided with respect to other matters relating to the jury's performance of its duties, such as providing parameters for the deliberative process itself. These generalizations illustrate the novelty of Defendant's proposed instruction. Unlike the more common forms of jury instructions, Defendant's proposed instruction is addressed to the evaluation of specific evidence. Such argument concerning the weight or inferences to be drawn from the evidence is to be presented at trial. Usually, this is most appropriately and effectively accomplished in the course of opening and/or closing statements. *1015 We note that the district court took this approach below, suggesting that Defendant advance his argument concerning the positioning of the furnishings in his closing statement. Because jury instructions are not intended to provide an additional platform for the parties to present evidentiary arguments, and because Defendant was provided the opportunity to present the matter to the jury in his closing statement, we perceive no error.
III. CONCLUSION
{60} For the foregoing reasons, we reject Defendant's assertions of error, both individually and cumulatively. See generally State v. Fry, 2006-NMSC-001, ¶ 57, 138 N.M. 700, 126 P.3d 516 (observing that where no error has been established, there is no basis for a claim of cumulative error). Defendant's convictions are therefore affirmed.
{61} IT IS SO ORDERED.
WE CONCUR: A. JOSEPH ALARID and MICHAEL E. VIGIL, Judges. | 01-03-2023 | 11-01-2013 |
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