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https://www.courtlistener.com/api/rest/v3/opinions/1318451/ | 346 S.E.2d 778 (1986)
Bill LONG and the W. Va. Education Association
v.
Hon. L.D. EGNOR, Jr., Circuit Judge of Cabell County.
No. 16825.
Supreme Court of Appeals of West Virginia.
July 3, 1986.
*780 Rudolph L. DiTrapano, Joshua I. Barrett & Rebecca A. Baitty, Charleston, for petitioners.
James Allan Colburn, Baer, Colburn & Morris, Huntington, for respondent.
MILLER, Chief Justice:
In this case, we are being asked to prohibit further proceedings in a libel action filed by the individual members of the Cabell County Board of Education against the West Virginia Education Association (hereinafter "WVEA") and Bill Long, a WVEA employee responsible for representing WVEA members in administrative proceedings.
The alleged defamatory publication is a memorandum from Mr. Long, acting on behalf of the WVEA, to some of its members in Cabell County. The memorandum, which has the WVEA letterhead at the top of the page, contains a reference heading which states: "RE: Harassment and Coercing of Members." The relevant text of the memorandum is:
"It has been reported to me that a member of the Cabell County Board of Education has allegedly visited job locations in Cabell County to tell our ESP members that the administration and Board will systematically deny all grievances filed by any ESP member. Furthermore, *781 this Board member has allegedly stated that anyone who files a grievance ought to be fired.
"If any of these reported events did occur, they would be in violation of individual and organizational Constitutional rights and also in violation of West Virginia State Law." (Empahsis in original).[1]
In their complaint, the Board members claimed the memorandum was false, demeaning, and libelous per se. Furthermore, they alleged that the memorandum imputes the plaintiffs are unfit to perform their duties, infers a want of integrity in the discharge of their duties, and prejudices them in their chosen field of public service. The complaint included a claim under W.Va. Code, 55-7-2, which provides a cause of action for insulting words.[2] The plaintiffs prayed for $500,000 as compensatory damages and $1,500,000 as punitive damages on each claim.
Although the WVEA moved to dismiss the complaint on several grounds, its main argument was that the complaint failed to state a claim upon which relief can be granted. The circuit court denied the WVEA's motion to dismiss and refused its request to stay the initiation of discovery by the Board members. Following this decision, the WVEA filed a petition for a writ of prohibition in this Court to cease any further proceedings in this action.
I.
The WVEA seeks prohibition relief contending, among other things, that the language in the memorandum is not defamatory as a matter of law. The Board members initially urge that prohibition is an inappropriate remedy. However, we believe prohibition is appropriate after the denial of a motion to dismiss in certain circumstances, as illustrated by our decision in Webb v. Fury, ___ W.Va. ___, 282 S.E.2d 28 (1981).
Webb involved a person who was the managing agent of an environmental group opposed to certain surface mining activities of a coal company. He filed complaints against the coal company with federal regulatory agencies maintaining that the company was not complying with applicable surface mining statutes. He also published a newsletter which alleged that surface mining by the company was destroying and damaging several streams. The coal company sued claiming his statements to the administrative agencies and in the newsletter were false and defamatory.
Although Webb dealt with a citizen's right to petition the government pursuant to the First Amendment to the United States Constitution and Article III, Section 16 of the West Virginia Constitution, its primary concern was the chilling effect of litigation on a citizen who was exercising a sensitive constitutional right, which was at the heart of the litigation. In Syllabus Points 2 and 3 of Webb, we concluded prohibition was appropriate in this type of situation:
"2. While the denial of a motion to dismiss is not usually an error for which prohibition will lie, prohibition will be used to examine the propriety of such a ruling when, as here, the ruling invades the unique constitutional guarantee of the right to petition the government for a redress of grievances contained in the First Amendment to the United States *782 Constitution and article III, § 16 of the Constitution of West Virginia.
"3. Prohibition will lie to prohibit a case from proceeding to trial when the remedy of appeal is manifestly inadequate to protect against the chilling effect of allowing a suit to proceed because the complaint, as a matter of constitutional law, contains insufficient allegations to warrant an interference with a citizen's right to petition the government."
Consequently, we conclude prohibition will lie to prohibit a case from proceeding to trial when the remedy of appeal is manifestly inadequate to protect against the chilling effect of allowing a suit to proceed because the complaint, as a matter of constitutional law, contains insufficient allegations to warrant interference with a citizen's right to free speech under the First Amendment to the United States Constitution and Article III, Section 7 of the West Virginia Constitution.
II.
Ordinarily, in reviewing the appropriateness of a Rule 12(b)(6) motion to dismiss, we have followed the general rule summarized in Syllabus Point 3 of Chapman v. Kane Transfer Co., 160 W.Va. 530, 236 S.E.2d 207 (1977):
"The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 [78 S. Ct. 99, 102, 2 L. Ed. 2d 80, 84] (1957)."
See also Sticklen v. Kittle, ___ W.Va. ___, ___, 287 S.E.2d 148, 156 (1981); John W. Lodge Distributing Co. v. Texaco, Inc., 161 W.Va. 603, 605, 245 S.E.2d 157, 158 (1978).
While this rule is generally applicable in the ordinary case, we believe that where First Amendment rights are implicated, courts have applied a stricter standard in judging the sufficiency of a complaint.
There can be little doubt that since New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686, 95 A.L.R. 2d 1412 (1964), the right of public officials to sue for libel has been severely curtailed because of the actual malice requirement and other restrictions based upon the First Amendment's free speech right that have become critical factors in libel cases.[3] The basis for this rule was to prevent stifling speech directed at criticizing the actions of public officials, as explained in Sullivan, 376 U.S. at 270, 84 S.Ct. at 721, 11 L.Ed.2d at 701, 95 A.L.R.2d at 1430: "Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."
Furthermore, Sullivan established that from an evidentiary standpoint, proof of actual malice in a libel action must be shown by "convincing clarity which the constitutional standard demands." 376 U.S. at 285-86, 84 S.Ct. at 729, 11 L.Ed.2d at 710, 95 A.L.R.2d at 1438. This standard was refined to "clear and convincing evidence" in Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 511, 104 S. Ct. 1949, 1965, 80 L. Ed. 2d 502, 524 (1984).[4]
*783 The law is clear that a citizen's constitutional right to freedom of speech is equal to the media's constitutional right to freedom of the press where the speech involves an area of public concern. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. ___, ___, 105 S. Ct. 2939, 2959, 86 L. Ed. 2d 593, 619 (1985) (Brennan, J., dissenting, joined by five other justices on this point);[5]Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968); Garrison v. Louisiana, 379 U.S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964); see also England v. Daily Gazette Co., 143 W.Va. 700, 714, 104 S.E.2d 306, 314 (1958).
It is not without some interest that in fashioning its "actual malice" standard, Sullivan cited, as support, Bailey v. Charleston Mail Ass'n, 126 W.Va. 292, 307, 27 S.E.2d 837, 844 (1943), and then made this historic formulation:
"The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice' that is, with knowledge that it was false or with reckless disregard of whether it was false or not. An oft-cited statement of a like rule ... has been adopted by a number of state courts." 376 U.S. at 279-80, 84 S.Ct. at 726, 11 L.Ed.2d at 706, 95 A.L.R.2d at 1435. (Footnote omitted).
This constitutional rule drew its vitality from state cases such as Bailey, which had held that one exercising his right of free speech had a qualified privilege in speaking out on the conduct of public officials. A public official could only overcome the qualified privilege by showing that the statement was not only false, but was made with actual malice.[6] These principles are established in our libel law. E.g., Mauck v. City of Martinsburg, ___ W.Va. ___, 280 S.E.2d 216 (1981); Sprouse v. Clay Communication, Inc., 158 W.Va. 427, 211 S.E.2d 674, 95 A.L.R. 3d 622, cert. denied, 423 U.S. 882, 96 S. Ct. 145, 46 L. Ed. 2d 107 (1975); Starr v. Beckley Newspapers Corp., 157 W.Va. 447, 201 S.E.2d 911 (1974); see also Dostert v. Washington Post Co., 531 F. Supp. 165 (N.D.W.Va.1982).
In Bose, the United States Supreme Court examined what standard of review an appellate court must apply in a libel case, and particularly whether the clearly erroneous standard found in Rule 52(a) of the Federal Rules of Civil Procedure,[7] should be utilized in a case which is subject to the Sullivan requirements. The United States Supreme Court concluded Rule 52(a) did not apply and the standard in a defamation action is an independent review based upon First Amendment constitutional principles:
"The question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact. Judges, as expositors of the Constitution, *784 must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of `actual malice.'" 466 U.S. at 511, 104 S.Ct. at 1965, 80 L.Ed.2d at 523.
The underlying rationale for Bose was found in earlier cases where the United States Supreme Court had asserted that it had the authority not only to delineate constitutional principles, but also to "review the evidence to make certain that those principles have been constitutionally applied." New York Times v. Sullivan, 376 U.S. at 285, 84 S.Ct. at 728, 11 L.Ed.2d at 709, 95 A.L.R.2d at 1437-38. See also Time, Inc. v. Pape, 401 U.S. 279, 91 S. Ct. 633, 28 L. Ed. 2d 45 (1971); Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S. Ct. 621, 28 L. Ed. 2d 35 (1971); Greenbelt Cooperative Publishing Ass'n v. Bresler, 398 U.S. 6, 90 S. Ct. 1537, 26 L. Ed. 2d 6 (1970).
In these cases, as well as others, it is clear that the United States Supreme Court conducts an independent review of the evidence in libel cases to determine as a matter of constitutional law whether the statement was libelous or was made with actual malice. In Greenbelt, the newspaper had published a story about a local real estate developer's efforts to obtain certain zoning variances. The story reported what had occurred during several city council meetings where several persons had accused the developer of "blackmail." For purposes of the libel action filed by the developer, it was admitted that he was a public figure. The United States Supreme Court concluded as a matter of law that read in the context of the news article, the term "blackmail" could not be deemed to be the imputation of the crime of blackmail.[8]
Of some relevance is Garrison v. Louisiana, 379 U.S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964), where a prosecuting attorney attacked several local judges, accusing them of being lazy, inefficient, and of taking excessive vacations. He also accused them of hampering his efforts to enforce vice laws and concluded by saying: "This raises interesting questions about the racketeer influences on our eight vacation-minded judges." 379 U.S. at 66, 85 S.Ct. at 211, 13 L.Ed.2d at 128.
The prosecuting attorney was convicted of criminal libel and the United States Supreme Court stated the Sullivan standard was applicable to a criminal libel procedure where public officials are involved. It went on to hold that the public official rule is not rendered inapplicable because an official's private reputation may be harmed along with his public reputation.[9] The criminal libel conviction was reversed because the prosecuting attorney's criticisms were found to be protected speech.
Undergirding all these cases is the thought expressed in Sullivan, 376 U.S. at 271-72, 84 S.Ct. at 721, 11 L.Ed.2d at 701, *785 95 A.L.R.2d at 1431, and frequently repeated that "erroneous statement is inevitable in free debate ... [and] must be protected if the freedoms of expression are to have the `breathing space' that they `need ... to survive.'" (Citation omitted).
It is perhaps in recognition of this need for free debate that some courts have adopted the view that in a libel case a motion to dismiss will be granted more readily where public officials are involved and Sullivan's First Amendment principles are applicable. In 5 C. Wright & A. Miller, Federal Practice & Procedure § 1357 at 610 (1969), the authors state:
"There is one significant exception to the general rule that the complaint will be construed liberally on a Rule 12(b)(6) motion. When the claim alleged is a traditionally disfavored `cause of action,' such as malicious prosecution, libel, and slander, the courts tend to construe the complaint by a somewhat stricter standard and are more inclined to grant a Rule 12(b)(6) motion to dismiss." (Footnote omitted).
Some state courts have adopted a stricter analysis in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion to dismiss where the underlying action involves malicious prosecution, defamation, or some other action traditionally disfavored by the courts. See generally Hatcher v. Moree, 133 Ga.App. 14, 209 S.E.2d 708 (1974); Kersey v. Harbin, 531 S.W.2d 76 (Mo.Ct.App. 1975); Janklow v. Viking Press, 378 N.W.2d 875 (S.D.1985); Weber v. Johnston Fuel Liners, Inc., 540 P.2d 535 (Wyo.1975).
We also note that courts generally are more inclined to grant motions for summary judgment in defamation actions filed by public officials or public figures. For example, in Mark v. Seattle Times, 96 Wash.2d 473, 485-86, 635 P.2d 1081, 1088 (1981) (en banc), cert. denied, 457 U.S. 1124, 102 S. Ct. 2942, 73 L. Ed. 2d 1339 (1982), the Supreme Court of Washington explained its rule for appraising motions for summary judgment in defamation actions filed by public officials:
"`In defamation actions by public officials, although the summary judgment procedure is basically the same, we are convinced the decisions of the United States Supreme Court have added a new facet, ... which must now be considered and resolved by the trial courts. In other words, in such defamation actions, if the trial judge at the summary judgment stage determines that the plaintiff has offered evidence of a sufficient quantum to establish a prima facie case, and the offered evidence can be equated with the standard or test of "convincing clarity" prescribed by United States Supreme Court decisions, the motion for summary judgment should be denied.'" (Citations and footnote omitted; emphasis in original).
See also Washington Post Co. v. Keogh, 365 F.2d 965, 20 A.L.R. 3d 972 (D.C.Cir. 1966), cert. denied, 385 U.S. 1011, 87 S. Ct. 708, 17 L. Ed. 2d 548 (1967); Reader's Digest Ass'n, Inc. v. Superior Court, 37 Cal. 3d 244, 690 P.2d 610, 208 Cal. Rptr. 137 (1984) (in bank); Godbout v. Cousens, 396 Mass. 254, 485 N.E.2d 940 (1985); Kotlikoff v. Community News, 89 N.J. 62, 444 A.2d 1086 (1982); Rye v. Seattle Times Co., 37 Wash.App. 45, 678 P.2d 1282, cert. denied, 469 U.S. 1087, 105 S. Ct. 593, 83 L. Ed. 2d 703 (1984); see generally 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2730 at 244-45 (1983); Comment, The Use of Summary Judgments in Defamation Cases, 14 U.San Fran.L.Rev. 77 (1979); Note, The Role of Summary Judgment in Political Libel Cases, 52 S. Cal.L.Rev. 1783 (1979).[10]
In Anderson v. Liberty Lobby, Inc., ___ U.S. ___, ___, 106 S. Ct. 2505, 2513-14, 91 L. Ed. 2d 202, 215-16 (1986), the United States Supreme Court recently addressed what *786 standard a court must apply in evaluating a motion for summary judgment in a libel action filed by a public figure and concluded:
"Thus, in ruling on a motion for a summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden....
* * * * * *
"In sum, we conclude that the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case.... Consequently, where the New York Times `clear and convincing' evidence requirement applies, the trial judge's summary judgment inquiry as to whether a genuine issue exists will be whether the evidence presented is such that a jury applying that evidentiary standard could reasonably find for either the plaintiff or the defendant. Thus, where the factual dispute concerns actual malice, clearly a material issue in a New York Times case, the appropriate summary judgment question will be whether the evidence in the record could support a reasonable jury finding either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not." (Footnote omitted).
We believe that the First Amendment to the United States Constitution and Article III, Section 7 of the West Virginia Constitution require that trial courts apply a stricter standard in appraising defamation actions filed by public officials or public figures under a motion to dismiss filed pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. Unless the complaint demonstrates on its face sufficient facts to support the elements of a defamation action, the complaint should be dismissed under Rule 12(b)(6).
III.
The WVEA's main assertion is that the statements contained in the memorandum are not defamatory as a matter of law and cannot form the basis for a libel action. The Board members argue that the statements adversely affect the reputations of all the Board members.
For the purposes of this opinion, we will assume, without deciding, that even though the memorandum in this case did not identify the Board member who allegedly made the statements, all five Board members had the right to bring this libel action because it is a small group. See Syllabus Point 1, Swearingen v. Parkersburg Sentinel Co., supra.[11] As elected public officials, there is no question that the Board members must be treated as public officials, as that term is used in libel law. See Garcia v. Board of Education, 777 F.2d 1403 (10th Cir.1985) (school board members held to be public officials).
In Syllabus Point 1 of Sprouse v. Clay Communication, Inc., 158 W.Va. 427, 211 S.E.2d 674, 95 A.L.R. 3d 622, cert. denied, 423 U.S. 882, 96 S. Ct. 145, 46 L. Ed. 2d 107 (1975), we set out the elements of a libel action filed by a public official:
"A candidate for political office is governed by the same rules with regard to recovery for libel as a public official and can sustain an action for libel only if he can prove that: (1) the alleged libelous statements were false or misleading; (2) the statements tended to defame the plaintiff and reflect shame, contumely, and disgrace upon him; (3) the statements were published with knowledge at the time of publication that they were false or misleading or were published with a reckless and willful disregard of truth; and, (4) the publisher intended to injure the plaintiff through the knowing or reckless publication of the alleged libelous material."
*787 The critical issue that must be decided by a court initially is whether the challenged statements are defamatory. This issue is particularly important in cases involving public officials because Sullivan accords a higher degree of protection to criticism of public officials under the First Amendment. In Mauck, we discussed this initial threshold determination of whether a statement was defamatory as a matter of law and concluded in Syllabus Point 2, in part:
"Under New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1969), whenever there is a First Amendment defense to actions under state law, the state court is required to be a judge of both the facts and the law."
Most courts in other jurisdictions have also held that a court must decide initially whether as a matter of law the challenged statements in a defamation action are capable of a defamatory meaning. See, e.g., Harris v. School Annual Publishing Co., 466 So. 2d 963 (Ala.1985); Slawik v. News-Journal Co., 428 A.2d 15 (Del.1981); Vinson v. Linn-Mar Community School District, 360 N.W.2d 108 (Iowa 1984); Henry v. Halliburton, 690 S.W.2d 775 (Mo.1985) (en banc); Silence v. Journal Star Printing Co., 201 Neb. 159, 266 N.W.2d 533 (1978); Kotlikoff v. Community News, 89 N.J. 62, 444 A.2d 1086 (1982); Aronson v. Wiersma, 65 N.Y.2d 592, 483 N.E.2d 1138, 493 N.Y.S.2d 1006 (1985); Robert K. Bell Enterprises, Inc. v. Tulsa County Fairgrounds Trust Authority, 695 P.2d 513 (Okla.1985); Elias v. Youngken, 493 A.2d 158 (R.I.1985); Chaves v. Johnson, 230 Va. 112, 335 S.E.2d 97 (1985).
In Syllabus Point 1 of Sprouse, we stated that a statement is defamatory if it reflects "shame, contumely, and disgrace" upon a person.[12] The Supreme Court of California has evolved an even more limited test for determining whether a given statement defames a public official in Okun v. Superior Court, 29 Cal. 3d 442, 451, 629 P.2d 1369, 1374, 175 Cal. Rptr. 157, 162, cert. denied, 454 U.S. 1099, 102 S. Ct. 673, 70 L. Ed. 2d 641 (1981): "[S]hort of accusations of crime or personal dishonesty, the First Amendment protects even sharp attacks on the character, motives, or moral qualifications of `a public officer.'" (Citation omitted).
We believe the statements challenged in the present case do not constitute libel as a matter of law against the Board members. When read in the context in which they were published, the statements do not under Sprouse expose the Board members to shame, contumely, or disgrace and also do not charge them with a crime or personal dishonesty.
The main allegation made in the memorandum is that a Board member has stated that in the future the Board will violate the procedural rights of school employees. We find such an allegation leveled against a public official to be rather tame, particularly in light of the decisions in Greenbelt and Garrison, where the United States Supreme Court found much more severe allegations to be nondefamatory as a matter of law. The question of whether the challenged statements in the present case are actionable is not even a close one they clearly are not defamatory.
Furthermore, the concluding second paragraph of the memorandum which states that if the "reported events did occur, they would be in violation of individual and organizational Constitutional rights and ... West Virginia State Law" is nothing more than an expression of opinion. In discussing statements of opinion in the context of a defamation action, the United States Supreme Court in Gertz v. Robert *788 Welch, Inc., 418 U.S. 323, 339-40, 94 S. Ct. 2997, 3007, 41 L. Ed. 2d 789, 805 (1974), stated: "We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." (Footnote omitted). See also Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. at 504, 104 S.Ct. at 1961, 80 L.Ed.2d at 518.
As a result of this statement from Gertz, which was reaffirmed in Bose, a majority of jurisdictions have held that statements of opinion are absolutely protected under the First Amendment and cannot form the basis for a defamation action. These courts also hold that whether a statement is one of fact or opinion is an issue that must be decided initially by a court. See, e.g., Ollman v. Evans, 750 F.2d 970 (D.C. Cir.1984) (en banc), cert. denied, ___ U.S. ___, 105 S. Ct. 2662, 86 L. Ed. 2d 278 (1985); Gregory v. McDonnell Douglas Corp., 17 Cal. 3d 596, 552 P.2d 425, 131 Cal. Rptr. 641 (1976); Burns v. McGraw-Hill Broadcasting Co., 659 P.2d 1351 (Colo.1983) (en banc); Caron v. Bangor Publishing Co., 470 A.2d 782 (Me.), cert. denied, 467 U.S. 1241, 104 S. Ct. 3512, 82 L. Ed. 821 (1984); Lyons v. New Mass Media, Inc., 390 Mass. 51, 453 N.E.2d 451 (1983); Pease v. Telegraph Publishing Co., 121 N.H. 62, 426 A.2d 463 (1981); Kotlikoff v. Community News, supra; Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 366 N.E.2d 1299, 391 N.Y.S.2d 943, cert. denied, 434 U.S. 969, 98 S. Ct. 514, 54 L. Ed. 2d 456 (1977); Marchiondo v. Brown, 98 N.M. 394, 649 P.2d 462 (1982); Chaves v. Johnson, supra.
It is true, as we recognized in Syllabus Point 4, in part, of Havalunch, Inc. v. Mazza, ___ W.Va. ___, 294 S.E.2d 70 (1981), adopting Section 566 of the Restatement (Second) of Torts, that where an opinion rests upon implied facts that are themselves defamatory, it may be actionable: "A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion."
An illustration of this principle, and one offered by the Board members, is an opinion that someone has committed a murder. The undisclosed defamatory facts are that the person has killed someone under unjustifiable circumstances (as in any defamation, this assumes that the murder charge is false). Here, however, the underlying facts are not undisclosed in that the alleged libelous memorandum specifically sets out the statements of the Board member on which Mr. Long's conclusion was based. Of even more importance is the fact that the summary by Mr. Long of the underlying statements made by the Board member have been found not to be defamatory. Consequently, the rule contained in Havalunch is not applicable and the opinion is protected under Gertz.
For the foregoing reasons, we conclude a writ of prohibition should issue prohibiting further prosecution of the underlying civil action.
Writ granted.
NOTES
[1] The remaining text of the memorandum is:
"If you have information regarding this matter and would be willing to testify in a legal proceeding, please call me toll-free at 1-800-642-8261.
"This is a serious matter and must be stopped immediately."
[2] W.Va. Code, 55-7-2, provides: "All words which, from their usual construction and common acceptation, are construed as insults and tend to violence and breach of the peace, shall be actionable. No demurrer shall preclude a jury from passing thereon." In Mauck v. City of Martinsburg, ___ W.Va. ___, 280 S.E.2d 216 (1981), we indicated that our insulting words statute is subject to the same First Amendment privileges that are applicable in an ordinary defamation action. We, therefore, will not make any independent analysis of this statute in this case.
[3] Both the First Amendment to the United States Constitution as well as our constitutional counterpart found in Article III, Section 7 prohibit any "law abridging the freedom of speech, or of the press." The precise First Amendment language is: "Congress shall make no law ... abridging the freedom of speech, or of the press."
[4] In Bose, 466 U.S. at 504, 104 S.Ct. at 1961, 80 L.Ed.2d at 519, the United States Supreme Court commented that not all utterances are protected by the First Amendment and listed these categories as examples of such utterances:
"Libelous speech has been held to constitute one such category, see Beauharnais v. Illinois, 343 U.S. 250 [72 S. Ct. 725, 96 L. Ed. 919 (1952)]; others that have been held to be outside the scope of the freedom of speech are fighting words, Chaplinsky v. New Hampshire, 315 U.S. 568 [62 S. Ct. 766, 86 L. Ed. 1031 (1942)], incitement to riot, Brandenburg v. Ohio, 395 U.S. 444 [89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969)], obscenity, Roth v. United States, 354 U.S. 476 [77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957)], and child pornography, New York v. Ferber, 458 U.S. 747 [102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982)]." (Footnote omitted).
[5] In Dun & Bradstreet, the United States Supreme Court concluded that a state rule permitting presumed and punitive damages in a defamation action without a showing of actual malice did not violate the First Amendment where the defamatory statements did not involve matters of public concern.
[6] In Syllabus Point 2 of Bailey, we said: "A misstatement of fact with reference to the official acts of a public officer made without malice and in the reasonable and honest belief that the statement is true, is qualifiedly privileged." See also Syllabus Point 4, Swearingen v. Parkersburg Sentinel Co., 125 W.Va. 731, 26 S.E.2d 209 (1943).
[7] At the time of Bose, Rule 52(a), relating to review of bench trials, provided in part: "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Our Rule 52(a) was modeled after its federal counterpart and is worded similarly.
[8] The United States Supreme Court's reasoning on this point in Greenbelt, 398 U.S. at 14, 90 S.Ct. at 1542, 26 L.Ed.2d at 15, is as follows:
"It is simply impossible to believe that a reader who reached the word `blackmail' in either article would not have understood exactly what was meant: it was [the developer's] public and wholly legal negotiating proposals that were being criticized. No reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging [the developer] with the commission of a criminal offense. On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the developer's] negotiating position extremely unreasonable." (Footnote omitted).
[9] The United States Supreme Court in Garrison, 379 U.S. at 77, 85 S.Ct. at 217, 13 L.Ed.2d at 134, explained:
"The New York Times rule is not rendered inapplicable merely because an official's private reputation, as well as his public reputation, is harmed. The public-official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an official's fitness for office is relevant. Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official's private character." (Footnote omitted).
[10] We acknowledge the dicta in Hutchinson v. Proxmire, 443 U.S. 111, 120 n. 9, 99 S. Ct. 2675, 2680 n. 9, 61 L. Ed. 2d 411, 422 n. 9 (1979), where the United States Supreme Court stated that since the question of actual malice often involves a defendant's state of mind, summary judgment may not be appropriate where malice is the central issue in a defamation case. In the present case, malice is not the issue upon which our decision is based.
[11] Syllabus Point 1 of Swearingen states: "If defamatory words are published concerning a restricted group of persons, a member of that group may maintain an action thereon as sole plaintiff." See also Neal v. Huntington Publishing Co., 159 W.Va. 556, 223 S.E.2d 792 (1976) (per curiam).
[12] In Crump v. Beckley Newspapers, Inc., ___ W.Va. ___, 320 S.E.2d 70 (1984), where we dealt with the libel of a private individual, we utilized the Restatement (Second) of Torts § 559 (1977) definition that a statement may be described as defamatory "if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." This definition is much too general to be applied in a case involving public officials where the Sullivan standard relating to the criticism of public officials is applicable. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318576/ | 677 S.E.2d 402 (2009)
JOHNSON
v.
The STATE.
No. A09A0281.
Court of Appeals of Georgia.
April 6, 2009.
Joseph S. Key, McDonough, for appellant.
*403 Tommy Kenneth Floyd, Dist. Atty., Atha H. Pryor, Asst. Dist. Atty., for appellee.
MILLER, Chief Judge.
A Henry County jury convicted Stacey Wayne Johnson of one count of burglary (OCGA § 16-7-1) and one count of forgery in the first degree (OCGA § 16-9-1). Johnson appeals from the trial court's order denying his motion for a new trial, arguing that the trial court erred in charging the jury on recent possession of stolen property. Discerning no error, we affirm.
Viewed in the light most favorable to the jury's verdict (Drammeh v. State, 285 Ga. App. 545, 546(1), 646 S.E.2d 742 (2007)), the record shows that on the morning of November 29, 2005, Randall Williams left his Henry County home to attend a Bible class and returned at about 12:15 p.m. Upon his return, Williams noticed that his back door was wide open, and inside the home, he found items scattered all over the floor. After he realized that some binders of baseball cards and other items were missing from the home, Williams called the police. After the police arrived, Williams also discovered that a safe he kept in his garage was open and the contents, including Williams' most valuable baseball cards, antique plates, jewelry, and a coin collection were missing. Williams had a number of big plastic tubs, which also had disappeared, and Williams surmised that the individual who broke into his home had put the various personal items into the tubs.
When Williams was walking around with the police, he also noticed that a book of checks was missing. About two hours later, Williams called the bank to cancel the checks. At approximately 12:17 p.m., before the checks were cancelled, Johnson cashed one of Williams' checks at a Bank of America branch in McDonough in the amount of $650. The check had been made out to Johnson.
Johnson testified that during the time period at issue, he occasionally helped his friend, Scott Ratliff, with landscaping jobs and other odds and ends around the neighborhood. According to Johnson, Ratliff owed him money for one of the jobs, and Ratliff gave him a check from Williams as payment. Williams, however, testified that he did not make out the check or authorize anyone else to do so.
In his sole enumeration of error, Johnson claims that the trial court erred in giving a jury charge regarding recent possession of stolen goods. In reviewing an allegedly erroneous jury instruction, this Court applies "the plain legal error standard of review." (Citation and punctuation omitted.) White v. State, 291 Ga.App. 249, 251, 661 S.E.2d 865 (2008). We find no error here.
The trial court charged the jury as follows:
If you should find beyond a reasonable doubt that the crime of burglary has been committed as charged in this indictment, and that certain personal property was stolen as a result of such crime; if recently thereafter, the defendant should be found in possession of any of the stolen property, that would be a circumstance, along with all of the other evidence, from which you may infer guilt as to the charge of burglary as set forth in this indictment.
If you find the evidence merits such an inference, you may not draw an inference of guilt if, from the evidence, there is a reasonable explanation of the possession of such property consistent with a plea of innocence, which is a question solely for you, the jury, to determine.
This charge was based on a pattern jury charge (Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 2.32.30) and was a correct statement of the law. Chambers v. State, 288 Ga.App. 550, 551, 654 S.E.2d 451 (2007) (describing principle that "[e]vidence of recent, unexplained possession of stolen goods may be sufficient to give rise to an inference that the defendant committed the burglary"). The same or a substantially similar charge has been approved repeatedly by decisions of this Court and the Supreme Court of Georgia. Johnson v. State, 277 Ga. 82, 85(3), 586 S.E.2d 306 (2003); Reynolds v. State, 231 Ga. 582, 583(4), 203 S.E.2d 214 (1974); Aiken v. State, 226 Ga. 840, 843-846(2), 178 S.E.2d 202 (1970); Donnell v. State, 285 Ga.App. 135, 139-140(3), 645 S.E.2d 614 (2007); Shearer v. State, 128 Ga. App. 809, 812(7), 198 S.E.2d 369 (1973).
*404 The charge also was warranted by the evidence in this case notwithstanding Johnson's claim that "[t]his was not a case about recent unexplained possession of stolen property." Johnson argues that the facts did not fit the charge because he was in possession of only a single stolen item, Williams' check. "There is no merit in [Johnson's] contention, since the inference of guilt arises from the possession of some, as well as all, of the stolen property." (Citations omitted.) Aiken, supra, 226 Ga. at 845(2)(b), 178 S.E.2d 202 (rejecting argument that recent possession charge was inappropriate because defendant had possession of "only a very small percent of the personal property stolen in the robbery."); see also Jackson v. State, 111 Ga. App. 192, 194-195(6), 141 S.E.2d 177 (1965).
Johnson further argues that the charge was not warranted in view of the fact that he explained his possession of the check and offered some corroborating evidence. Despite Johnson's explanation for his possession of Williams' check, the jury was still entitled to draw an inference of Johnson's guilt from his possession of stolen property if it disbelieved Johnson. Under Georgia law, "[o]nce it is shown that goods were stolen in a burglary, absence of or unsatisfactory explanation of the possession of the goods will support a conviction for burglary based upon recent possession of the stolen goods. Whether a defendant's explanation of possession is satisfactory is a question for the jury...." (Citation and punctuation omitted.) Davis v. State, 275 Ga.App. 714, 716(1), 621 S.E.2d 818 (2005) (defendant claimed he had purchased stolen items from some employees of his company who lacked necessary identification to pawn the items themselves); see also Chambers, supra, 288 Ga.App. at 551, 654 S.E.2d 451; Ladd v. State, 160 Ga.App. 166, 167(1), 286 S.E.2d 502 (1981) ("The jury was authorized to reject [the defendant's] explanation as to recent possession of stolen property.") (citation omitted). Here, the trial court correctly instructed the jury that the issue of whether Johnson offered a reasonable explanation for his possession of Williams' property was a question solely for it to determine and that if it found Johnson's explanation reasonable, it could not draw an inference of guilt from his possession of stolen property.
For the reasons set forth above, we affirm the trial court's order denying Johnson's motion for a new trial.
Judgment affirmed.
ANDREWS, P.J., and BARNES, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318604/ | 212 Ga. 571 (1956)
94 S.E.2d 417
PRESCOTT
v.
HERRING et al.
19373.
Supreme Court of Georgia.
Argued June 11, 1956.
Decided September 7, 1956.
*572 Franklin, Eberhardt, Barham & Coleman, for plaintiff in error.
W. J. Gibbons, H. B. Edwards, Sr., H. B. Edwards, Jr., contra.
MOBLEY, Justice.
The plaintiffs as heirs at law of W. D. Herring, deceased, brought their petition to enjoin the cutting of timber by the defendant upon land owned by W. D. Herring at the time of his death. A temporary injunction was issued. The defendant filed general and special demurrers, which were overruled. Upon the trial and at the close of the evidence, the defendant moved for a directed verdict, which was denied. The jury returned a verdict for the plaintiffs. Thereafter, the defendant moved for a new trial and for a judgment notwithstanding the verdict. These motions were also denied. On all of the above judgments adverse to her, the defendant assigns error in her bill of exceptions.
1. The petitioners alleged: they are the surviving heirs of W. D. Herring, deceased; W. D. Herring died seized and possessed of the land involved in this suit; said land was conveyed to W. D. Herring by J. P. Prescott, deceased husband of the defendant, by deed on October 3, 1921; since the death of W. D. Herring, the petitioners have had possession and complete control of the land without any adverse claims from anyone; the defendant's acts will cause petitioners irreparable damage and permanent injury to their freehold. Whether or not the petitioners fail to bring themselves within the provisions of the "Timber Cutter's Act" (Code § 55-204), in that the abstract of title attached to their petition is not a perfect title (which question we do not decide), the allegations are sufficient to state a cause of action under the general principles of equity governing the enjoining of trespasses. "An injunction may issue in this State to restrain the cutting of timber, although the plaintiff may not have `perfect title' as provided for in the `timber-cutter's act' (Code § 55-204), where the damages would be irreparable, or where the trespass is a continuing one." Anderson v. Thompson, 192 Ga. 570 (1) (15 S.E.2d 890); Camp v. Dixon, 112 Ga. 872 (38 S.E. 71, 52 L. R. A. 755); Moore & Co. v. Daugherty, Allen & Co., 146 Ga. 176, 178 (91 S.E. 14); Kirkland v. Odum, 156 Ga. 131, 135 (118 S.E. 706); McArthur & Griffin v. Matthewson *573 & Butler, 67 Ga. 134 (1). The general demurrer to the petition, on the ground that no cause of action was set out, was properly overruled. This was not an action for the recovery of land, and the prima facie right to bring this action to enjoin a trespass upon land owned and in their possession is in the plaintiffs as heirs of W. D. Herring. Smith v. Fischer, 52 Ga. App. 598 (184 S.E. 406). The special demurrers are without merit.
2. The petitioners introduced into evidence a deed from J. P. Prescott to W. D. Herring, dated October 3, 1921, conveying: "All that part of lot of land No. 81 in the 16th District of Lowndes County, Georgia, covered by what is known as the Bradford Mill Pond, the same being one hundred acres more or less, in the North East corner of said lot. Also a one-half undivided interest in five acres of land in the South East corner of lot of land No. 58 in the 16th District of Lowndes County, Georgia." The deed contained the following provision: "It is understood and agreed by and between the parties hereto that the water in said pond shall at all times be maintained at a height not exceeding 7 1/2 feet from the mill sheeting of bottom floors in the millhouse and that a substantial post or some other device shall be erected at said place where the height at which the water shall be maintained, as aforesaid, will be permanently located or indicated." Only the land lying in lot No. 81 is disputed, and as to this the defendant makes two contentions concerning the deed. First, that under the deed the land conveyed must lie in the northeast corner of lot 81, and the evidence shows the alleged tresspass not to have occurred in the north-east corner of said lot; and second, that the land conveyed by the deed should be measured at the low-water mark of the pond. As to the first contention, the defendant would have lot 81, which is in the shape of a square, divided into quadrants, and contends that, if any of the land covered by Bradford Mill Pond lies outside the northeast quadrant, it is not conveyed by the deed. The deed expressly states that it conveys all of the land in lot 81 covered by Bradford Mill Pond, and that same contains 100 acres more or less in the northeast corner of said lot. In the construction of deeds, as well as other contracts, the paramount, essential, and controlling rule is to ascertain the intention of the parties. Code § 29-109; Keith v. Chastain, 157 Ga. 1 (121 *574 S. E. 233). The deed conveys, first, all of that part of lot No. 81 in the 16th district of Lowndes County, Georgia; second, covered by what is known as the Bradford Mill Pond; third, the same being 100 acres, more or less; and fourth, in the northeast corner of said lot. It is clear from this description that the land conveyed is limited to that part of lot 81 in the 16th district covered by the Bradford Mill Pond. The amount of land conveyed is 100 acres more or less, and according to the deed is in the northeast corner of said lot. The evidence shows that the major portion of Bradford Mill Pond lies in the northeast corner of lot 81; that the millhouse and dam are located in the southeast corner of lot No. 58 (on the five acres conveyed by the deed which are not disputed), and said corner is adjacent to and immediately north of the northeast corner of lot 81; and that the pond extends from the northeast corner of lot 81 down through the lot to the south line thereof. The timber cut in this case was near the south line of lot 81. If the effect of the words, "in the northeast corner of said lot," is to limit the land conveyed to that which lies in the northeast corner, this provision would be inconsistent with the first provision in the deed which conveys all of that part of lot 81 covered by Bradford Mill Pond. In construing a deed, effect must be given, if practicable, to every part of the description of the land conveyed (Reeves v. Whittle, 170 Ga. 408 (4), 153 S.E. 53, 72 A. L. R. 405); and if two clauses in a deed are utterly inconsistent, the former shall prevail (Code § 29-109); but the intention of the parties from the whole instrument should, if possible, be ascertained and carried into effect. Applying these rules of construction to the deed in the instant case, we are of the opinion that it was the intention of the grantor to convey all that part of land lot No. 81 covered by what is known as Bradford Mill Pond, and not merely that part which lies in the northeast corner of lot No. 81. The words, "in the northeast corner," taken in connection with the whole instrument, are not sufficient to show an intention to exclude a part of the pond should any part thereof extend beyond such corner. If that part of the deed conveying all of lot 81 covered by Bradford Mill Pond were disregarded, the description in the deed would then be too indefinite for it to operate as a conveyance of title, because 100 acres more or less in the northeast *575 corner of lot 81 could not be located, the words "more or less" rendering such a description void. Huntress v. Portwood, 116 Ga. 351, 355 (42 S.E. 513). "In construing conveyances of land, effect is to be given to every part of the description, if practicable; but if the thing intended to be granted appears clearly and satisfactorily from any part of the description, and other circumstances of description are mentioned which are not applicable to that thing, the grant will not be defeated, but those circumstances will be rejected as false or mistaken. What is most material and most certain in a description shall prevail over that which is less material and less certain." Harris v. Hull, 70 Ga. 831 (1). Giving effect to the entire description, it is clear that the parties intended to convey all the land in lot 81 covered by what is known as Bradford Mill Pond.
As to the second contention, in Boardman v. Scott, 102 Ga. 404 (3) (30 S.E. 982, 51 L. R. A. 178), it was held that, where land was conveyed and described as bounded by an artificial pond which had been in existence long enough to become a permanent body of water, the line of the land conveyed extended to the low-water mark of the pond at the date of the execution of the deed. But it was stated in that case that, as it was to be tried again, it could then "be investigated and determined whether or not, for any reason depending upon the particular facts as then made to appear, the high-water mark, rather than the low-water mark, should be treated as the true dividing line between the possessions of the plaintiff and the defendant." The principle of law stated in the Boardman case is merely a presumption which applies to those conveyances where land is described as being bounded by a pond and where there are no facts to show whether the parties intended the boundary to be the high-water or the low-water mark of the pond. In this case the deed recites that the water in the pond should at all times be maintained at height not exceeding 7 1/2 feet from the mill sheeting or bottom floors of the millhouse, and all the land in lot 81 was conveyed to the grantee. It is evident that the purpose of this provision was to fix the boundaries of the pond and the land conveyed by the deed.
There was evidence that the water in the pond was low, and that, if the water were maintained at the height called for in the *576 deed, it would cover the timber that was cut. There was evidence that, during the lifetime of W. D. Herring, he cut timber from out of the pond without objection from anyone. A witness testified that, during the lifetime of J. P. Prescott, and after the date of the deed to W. D. Herring, the witness cut timber for Prescott and that he cut around the pond; that Prescott told the witness to cut down to the edge of the bushes around the pond and down to the edge of the pond. The defendant introduced into evidence a deed from W. D. Herring to C. T. Corbett dated November 4, 1924, conveying one and one-half acres of land, more or less, in the northeast corner of lot 81; but there is evidence that the alleged trespass did not take place upon this land or upon the land in lot 81 described in a deed from Mary E. Carter to J. P. Prescott, which deed was also introduced by the defendant. Furthermore, this latter deed is dated January 1, 1909, while the deed from Prescott to Herring is dated October 3, 1921. There was sufficient evidence to authorize the verdict in favor of the plaintiffs, enjoining the defendant from further acts of trespass, and the general grounds of the motion for new trial are without merit. Inasmuch as a verdict for the defendant was not demanded by the evidence, there was no error in denying the defendant's motion for a directed verdict and in denying the motion for judgment notwithstanding the verdict.
3. Special grounds 5, 6, 7, and 8 of the motion for new trial complain that a portion of the charge conflicted with other parts of the charge and instructed the jury upon conflicting principles of law; and that, in view of said charge, it was error to submit any issue of fact to the jury. The court charged as follows: "The defendant is entitled to prevent the plaintiff from prevailing in this case, if it appears from the evidence by a preponderance thereof, that before he died he conveyed by a deed to someone other than the plaintiff, the property in question or any part thereof. It appears from the uncontradicted evidence in this case that W. D. Herring before his death conveyed the property to J. C. Watts and that it was never reconveyed to W. D. Herring before his death, therefore the defendant is entitled to a verdict at your hands and you should find for the defendant." Immediately following this charge, the court charged upon the form of verdict which should be rendered if the plaintiff prevailed and *577 the form if the defendant should prevail. Previously the court had charged generally upon the principles of law made by the pleadings and the evidence. While it was error for the court to charge that, under the uncontradicted evidence, the defendant was entitled to a verdict, inasmuch as such a charge was not authorized by the evidence, the charge complained of was favorable to the defendant and presented the issues of the case more favorably to the defendant than was authorized by the evidence. These grounds do not show that the defendant was harmed by the charges excepted to, and are therefore without merit. Childers v. Ackerman Construction Co., 211 Ga. 350, 353 (86 S.E.2d 227).
4. Special grounds 9, 10, and 11 assign error upon the verdict as being contrary to portions of the court's charge set out in these grounds because, it is contended, the evidence demanded a finding in favor of the defendant as to the issues submitted to the jury in these portions of the charge. The evidence did not demand a finding in favor of the defendant upon these issues, and these grounds are without merit.
5. Special ground 12 excepts to the failure of the court in its charge to instruct the jury that the land conveyed by the deed from J. P. Prescott to W. D. Herring was confined to the northeast corner of lot 81. This contention, as held in division 2 above, is not correct. This ground is without merit.
6. Special ground 13 excepts to the failure of the court in its charge to construe the deed mentioned above as to the land conveyed thereby. This special ground alleges that the language of the deed is unambiguous, and with this we agree. No issue as to a construction of the deed is made by the pleadings in the case, and the evidence does not directly raise such an issue. If the defendant desired a more detailed instruction upon the terms of the deed he should have made a timely written request therefor. This ground is without merit.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318706/ | 723 P.2d 37 (1986)
Grant Samuel YATES, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
No. 86-60.
Supreme Court of Wyoming.
July 22, 1986.
Leonard D. Munker, State Public Defender and Julie D. Naylor, Appellate Counsel, Public Defender Program, for appellant.
A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., Thomas A. Maurer and Gerald P. Luckhaupt, Asst. Attys. Gen., for appellee.
Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.
MACY, Justice.
Appellant Grant Samuel Yates pled guilty to three counts of delivery of a controlled substance to a minor in violation of §§ 35-7-1031(a)(ii) and 35-7-1036, W.S. 1977, 1985 Cum.Supp., and one count of possession of a controlled substance with intent to deliver in violation of § 35-7-1031(a)(ii), W.S. 1977, 1985 Cum.Supp. He was sentenced to concurrent terms of two to four years for three of the counts. His sentence for the remaining count was suspended, and he was placed on probation for a period of ten years to commence after his prison sentences.
On appeal, appellant raises the following issue:
"Whether the District Court committed reversible error and abused its discretion in sentencing Grant Samuel Yates to three terms of two to four years to run concurrently in the Wyoming State Penitentiary with imposition of sentence on Count III to be suspended for a period of ten years, Appellant to be placed on probation during that ten year period, said probation to be served consecutively to the sentence on the other three counts."
We affirm.
*38 We have repeated the standards governing review of sentencing decisions innumerable times. Most recently, in Martin v. State, Wyo., 720 P.2d 894 (1986), and Shepard v. State, Wyo., 720 P.2d 904 (1986), we reiterated and clarified those standards. We see no reason to do so again here. Our review is, therefore, limited to appellant's claim that the trial court abused its discretion in sentencing him to a jail term. More specifically, appellant argues that because defendants in ten similar cases before the same court were placed on probation, he should also have received probation.
We have said that absolute uniformity in sentencing is not required:
"The circumstances of each crime are different. The background of each convicted person is different and his rehabilitative needs are different. Also, the potential of each convict to be a productive member of society is different. * * *" Daniel v. State, Wyo., 644 P.2d 172, 180 (1982).
In the present case, the trial court found that the cases cited by appellant were distinguishable in that there the prosecutors recommended probation while here the prosecutor recommended incarceration. The trial court also considered the presentence investigation report which similarly recommended incarceration followed by probation. Finally, the court considered testimony indicating that appellant had been selling drugs to young people for nearly a year and evidence suggesting that appellant was unwilling to accept responsibility for his acts. On the basis of these factors, the court concluded that appellant was not a good probation risk and that incarceration for a time was necessary to deter appellant from future violations. Under these circumstances, we find no abuse of discretion in sentencing.
Appellant requests that, upon finding no abuse of discretion, we grant a writ of certiorari in accordance with Wright v. State, Wyo., 707 P.2d 153 (1985). As in Shepard v. State, appellant has failed to demonstrate that this is a rare and unusual case entitling him to such a writ. His request is, therefore, denied.
Affirmed.
THOMAS, C.J., filed a concurring opinion.
URBIGKIT, J., filed an opinion concurring in part and dissenting in part.
THOMAS, Chief Justice, concurring.
Because the majority relies upon the decisions of this court in Martin v. State, Wyo., 720 P.2d 894 (1986) and Shepard v. State, Wyo., 720 P.2d 904 (1986), I note that I continue to hold the views expressed in my concurring opinions in those two cases.
URBIGKIT, Justice, concurring in part and dissenting in part.
I concur with the court in approving the exercised discretion of the trial court in the defendant's sentence of concurrent terms of two to four years on the guilty pleas to three counts of delivery of controlled substances, two of which involved minors. Oakley v. State, Wyo., 715 P.2d 1374 (1986); Martin v. State, 720 P.2d 894 (1986); Shepard v. State, 720 P.2d 904 (1986).
The perceived problem requiring dissent is the additional feature of the sentence whereby on the fourth count (actually Count 3 in the Information) imposition of sentence was suspended for ten years to run consecutively to the prison sentences ordered on the other three charges.
I find nothing in the record that reflects any knowledge by the defendant of his exposure to this suspension of sentence or that any approval for suspension of that sentence was requested or given by him.
Thus, Yates may be required to serve four years in the penitentiary on the concurrent prison sentences, after which he has a ten-year probationary period of suspension of sentence including extremely tough conditions which can even include termination of his suspended sentence for driving under the influence or failure to:
*39 "* * * obey all of the rules and regulations of such Department [Wyoming Department of Probation and Parole], and further, that he shall not violate any of the laws, or any major motor vehicle laws, of the United States of America, the State of Wyoming, or any other State in which he may be present or any political subdivision thereof."
The suspension of sentence further provided:
"(3) That the Wyoming Department of Probation and Parole shall have specific power to request the Defendant to submit to chemical tests of his person to determine whether or not he has consumed or ingested alcohol or controlled substances. Use of a controlled substance without a doctor's prescription may constitute a violation of the Defendant's probation. The Defendant may refuse to submit to such testing; however, this refusal is a violation of this Order. "IT IS FURTHER ORDERED, ADJUDGED AND DECREED that in the event the Defendant shall violate any of the terms and conditions of probation as set forth herein or any of the rules and regulations of the Department of Probation and Parole, he shall be brought directly before this Court, and upon a determination by the Court that he has violated any of the aforesaid terms and conditions or the rules and regulations of the said Department of Probation and Parole, the suspension of imposition of sentence shall be terminated and sentence shall be imposed."[1]
Assuming that the prison sentence may extend for its four-year term, including any time on parole, Yates will then be on probation for a further period of ten years. If, however, he violates his probation as a result of noncompliance with these detailed and difficult conditions, then he is subject to possible sentence for an additional period up to 20 years on the plea involving delivery of a controlled substance to minors.
Emphatically related, this means that Yates has a potential maximum sentence of 34 years on an offense that reasonably justified something in the range of not more than the sentence imposed of two to four years, which in itself is longer than many other sentences in similar cases. The pervasive question is derived from the suspension of sentence with the continuing risk and potential of sentence thereafter for the maximum statutory total originally permitted (20 years).
In this case, an initial difficulty is created by confusion as to whether the defendant's suspension of sentence was entered under § 7-13-203, W.S. 1977, or § 7-13-301, W.S. 1977. See excellent discussion of the differences by Justice Cardine in King v. State, 720 P.2d 465 (1986). Determinative factors found in that case do not necessarily assist here, except for the probation sentence differential of five years in King compared to ten years for Yates, as well as, of course, in this case the additional count invoked a consecutive, not concurrent, suspension of sentence. If the court intended to suspend Yates' sentence under § 7-13-203, the ten-year term is improper, as would apparently be the other much more restrictive conditions included in the sentence.
A further sentencing requirement is provided in § 7-13-205, W.S. 1977:
*40 "No delay in the passing of sentence or parole of a person as provided in this act [§§ 7-13-203 to 7-13-205] shall be ordered against the consent or will of such person."
No approval by the defendant for such suspension of sentence is reflected in the trial record.
Reason suggests that the trial court tailored the suspension of sentence pursuant to § 7-13-301, which includes an interesting difference in its language regarding defendant approval of suspension of trial versus suspension of sentence:
"Under conviction or plea of guilty for any offense, except crimes punishable by death or life imprisonment, the court may suspend the imposition of sentence, or may suspend the execution of all or a part of a sentence and may also place the defendant on probation or may impose a fine applicable to the offense and also place the defendant on probation. With the consent of a defendant charged with a crime, except a crime punishable by death or life imprisonment, the court may suspend trial and place such defendant on probation." (Emphasis added.)
It would reasonably be construed from the statute that suspension of trial requires defendant approval but suspension of sentence does not.
The indeterminate nature of a § 7-13-301 sentence is further enunciated by the provisions of §§ 7-13-303 and 7-13-304, W.S. 1977:
"§ 7-13-303. Imposition or modification of conditions.
"The court shall determine and may, by order duly entered, impose in its discretion, and may at any time modify any condition or conditions of probation or suspension of trial or sentence."
"§ 7-13-304. Determination, continuance or extension of suspension or probation; discharge; violation of conditions. "The period of probation or suspension of trial or sentence and the conditions thereof shall be determined by the court and may be continued or extended. Upon the satisfactory fulfillment of the conditions of suspension of trial or sentence or probation the court shall by order duly entered discharge the defendant. At any time during the period of suspension of trial or sentence or probation, the court may issue a warrant and cause the defendant to be arrested for violating any of the conditions of probation or suspension of trial or sentence. As soon as practicable after the arrest the court shall cause the defendant to be brought before it and may proceed to deal with the case as if no suspension of trial or sentence or probation had been ordered."
The extension provision is the specific subject addressed in King. Distinguished from the restricted sentence under § 7-13-203 of five years, it is possible that Yates' longer sentence could extend for a period beyond the maximum penalty for the offense under which he was sentenced, contrary to Hicklin v. State, Wyo., 535 P.2d 743 (1975).
Conceivably, this could permit an extension of the probationary term after the 14 years so that the total exposure could equal at least a total of 30 years, or 34 years when combined with the present maximum prison sentence.
Probable conflict by virtue of the potentialities of the sentence exists with Art. 1, §§ 6, 14 and 15 of the Wyoming Constitution, the Eighth and Fourteenth Amendments to the United States Constitution, and the proportionality restrictions of Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). See Oakley v. State, supra.
Obviously, we can only guess what may occur after the two-to-four-year sentence has been completed, or, for that matter, during the following ten-year probationary time.
Discussion is justified by the principle that what can happen may happen, and cannot now be ignored.
The only Wyoming case addressing the suspension of sentence statute, § 7-13-301, *41 is Hicklin v. State, supra, wherein the court found that the probation sentence was unauthorized as entered in excess of the statutory maximum for the offense involved:
"The terms and conditions of probation cannot exceed the statutory penalty for the violation of law prosecuted not amount to the risk of imposition of a punishment greater than that authorized by law if suspension of sentence and probation were not granted. The terms of probation must be harmonized with the authorized punishment for the crime." 535 P.2d at 753-754.
The nuances of numerical possibilities, including alternative possibilities of resentencing are recognized as being conjectural. However, I note and concur with the constitutional and philosophic issues intrinsically involved in the comments of Justice Raper in Hicklin:
"A person on probation is not serving a sentence but is in a status something less than imprisonment that follows upon suspension of sentence. It connotes an absence of the rigors of confinement in a penitentiary, but at the same time is a substitute for complete imprisonment. Probation is indeed a punitive sanction. It is imposed only upon convicted criminals, and results in a considerable restriction upon their liberty as well as intrusions upon their private lives. Fundamentally, it is a device for achieving the same social goals furthered by the more conventional penalty of society's desire for retribution and deterrence and its hope for rehabilitation. It is a loss of a part of cherished liberty in that freedom of movement and activity is restricted; the criminal is constantly under surveillance, must report his activities on a regular basis, and is deprived of intoxicants. In this case, twelve restraints are placed upon independence, including a requirement of taking psychiatric counseling plus those terms of an agreement with the State Department of Probation and Parole, which embraces such requirements as conferring before opening a bank account, entering into contracts, obtaining a divorce, inspection of living conditions and others. Probation is in no sense a regime of unlimited freedom. A probationer is a convict without bars with a sword of threat hanging over his head, that for a deviation the doors may be slammed shut on him." 535 P.2d at 753.
In my opinion, a maximum suspension of sentence for a period longer than the reasonable sentence for the same offense is constitutionally and penologically suspect.
The law journal article by Morgan, Disparity and the Sentencing Process in Wyoming District Courts: Recommendations for Change, 11 Land & Water L.Rev. 525 (1976) is informative and persuasive.
Deserving of considered review is Standard 18-2.3(b)(ii) of the American Bar Association's Standards for Criminal Justice, Sentencing Alternatives and Procedures (2d ed):
"Neither supervision nor the power to revoke should be permitted to extend beyond a legislatively fixed term, which should in no event exceed two years for a misdemeanor or five years for a felony."
The Commentary to this standard indicates an increased skepticism with open-end indeterminacy in that it "not only may subject the offender to a pointlessly extended jeopardy but it aggravates the caseload burden of the probation staff as well."
I am not comfortable with the supposition that the consecutive sentences are normally good penological policy or frequently in conformity with desired statutory resolution. A trial judge cannot ignore proportionality and constitutional mandates when exercizing discretion in sentencing. Indeterminate sentencing requires fairly exercised discretion for constitutional compliance.
Extensive authority is available to demonstrate that lengthy probation may invite recidivism and sponsors a return to criminality. The no-chance syndrome is a dominating psychological characteristic frequently determining human behavior. Unfortunately, also, the extended suspended *42 sentence on multiple crime convictions will require supervisory personnel far beyond present resources in this state. Reason as well as constitutional concerns would suggest that suspension of sentence, when utilized, should not be unduly lengthy, and that a predetermined maximum sentence could be established for a subsequent violation of probation.[2]
At least some comfort would have been found if the court had entered the suspension of sentence on the one offense permitting only a ten-year sentence, so that the maximum could not then have totaled more than 24 years.
I would remand for sentencing on Count 3 to accommodate an opportunity of the defendant to agree if suspension of sentence is to be considered on that count, and entry of a total sentence more proportionately relative to the severity of the offense involved, realistically recognizing constitutional due process, and the policies of reformation and prevention.
NOTES
[1] From the standpoint of some attempt to normalize existence during the period of suspension of sentence, both the driving offenses and the waiver of objection to mandatory chemical testing requirements are singularly oppressive conditions for the extended time. The Annotation at 79 A.L.R. 3d 1083 addresses but does not resolve the constitutionality of the requirement that a defendant submit to warrantless searches as a condition of his probation. The total term, in combination with the other factors, including the involuntary nature of the probation conditions would cause questions upon implementation under the purview of both Art. 1, §§ 6 and 14 of the Wyoming Constitution and the Eighth and Fourteenth Amendments to the United States Constitution. Contemporary statistics have suggested that one out of 60 qualified persons in the United States is under some kind of probation, parole or confinement criminal status.
[2] The general rule is stated that increasing the term of a probation sentence after defendant has commenced serving his punishment is a violation of defendant's right not to be subject to double jeopardy. Probation is a form of punishment, and the guarantee against double jeopardy will attach as soon as defendant is placed on probation under a suspended sentence and begins to serve his period of probation. See United States v. Bynoe, 562 F.2d 126 (1st Cir.1977), and cases therein cited. Consequently, the provisions of § 7-13-301 for extension of the probation period of suspended sentence has constitutional-infirmity questions which have not previously been raised in this jurisdiction. See also United States v. Jones, 722 F.2d 632 (11th Cir.1983); Moreno v. Richardson, 484 F.2d 899 (9th Cir.1973); United States v. Sacco, 367 F.2d 368 (2d Cir.1966). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318447/ | 383 S.C. 19 (2009)
677 S.E.2d 28
Robert K. McCUEN, Respondent,
v.
BMW MANUFACTURING CORPORATION and Twin City Fire Insurance Company, Appellants.
No. 4531.
Court of Appeals of South Carolina.
Heard February 18, 2009.
Decided April 15, 2009.
*21 Samuel C. Weldon, of Greenville, for Appellants.
Kathryn Williams, of Greenville, for Respondent.
SHORT, J.
BMW Manufacturing Corporation (BMW) appeals the circuit court's order upholding the Appellate Panel of the Workers' Compensation Commission's (Appellate Panel) finding that Robert McCuen sustained a compensable neck injury arising out of and in the course of his employment with BMW and awarding him benefits for his injury. We reverse.
FACTS
McCuen began working for BMW as a dent repair technician in April of 2000. McCuen inspected and repaired minor dents and other imperfections on vehicles as they neared completion on the assembly line. As a dent technician, he utilized stationary fluorescent lights to detect imperfections. Once he detected an imperfection, McCuen used various tools to correct the dent. McCuen stated it was BMW's preference to correct the dents on the assembly line[1] and, as a result, he assumed awkward positions in an attempt to "push the dents out." According to McCuen, as a dent technician, he used both of his hands and applied a continuous force.
McCuen testified that prior to working for BMW, he had never experienced any problems with his neck, hands, arms, or wrists. However, on October 26, 2001, he began to develop pain in his right wrist while still employed with BMW. McCuen testified he reported the pain to BMW's infirmary. Consequently, BMW transferred McCuen to another area on the assembly line. He began complaining of pain in his right forearm and he was transferred to a computer data entry position. Shortly thereafter, on November 13, 2001, McCuen left BMW for medical leave and did not return to work.[2] After leaving BMW, McCuen began to complain of pain in his left wrist.
*22 McCuen's problems with both of his wrists continued, and he sought additional medical treatment. According to McCuen, several doctors were unable to diagnose the problem with his wrists. Ultimately, McCuen was referred to Dr. Joseph Kutz, a hand specialist in Kentucky. Eventually, Dr. Kutz diagnosed McCuen with bilateral carpal tunnel syndrome. During the summer of 2002, Dr. Stephen Gardner, a Greenville neurosurgeon, performed carpal tunnel surgery on both of McCuen's wrists. Dr. Gardener released McCuen from his care in September 2002. However, in December 2002, McCuen made an appointment with Dr. Gardner for problems with his neck, and underwent surgery on January 13, 2003. McCuen admitted his neck problems did not develop until months after he left BMW and he was unable to explain how he hurt his neck.
Before, during, and after McCuen's employment with BMW, McCuen owned and operated a landscaping business. McCuen testified at the hearing that he "had two guys that did most of the work," and sometimes he helped. However, at his deposition, he stated he did not have any employees, but he had "a friend that helped [him] some." Diana German, a former co-worker, testified McCuen worked in her yard on two separate occasions after he left BMW. Another former co-worker, Heather Lazo, also testified McCuen told her he was doing most of the landscaping himself. Additionally, McCuen assisted in the organization of a dent removal business after he left BMW.
McCuen filed a claim for benefits under the South Carolina Workers' Compensation Act. S.C.Code Ann. §§ 42-1-10 to 42-19-40 (1976 & Supp.2008). This case originally came before the single commissioner, who found McCuen sustained compensable injuries to his neck, upper extremities, and hands by accident under South Carolina Code Section 42-1-160. Specifically, the single commissioner found McCuen had no pain or other difficulties with his neck, upper extremities, and hands prior to his employment with BMW. The commissioner specifically noted McCuen's job as a dent technician "involved forcing his neck, arms, and entire body into very awkward positions...." Further, the single commissioner stated McCuen's "neck and entire upper extremity symptoms are associated manifestations of his condition."
*23 BMW appealed the single commissioner's decision to the Appellate Panel, and the Appellate Panel affirmed the single commissioner's decision, sustaining the order in its entirety. Subsequently, BMW appealed the Appellate Panel's decision to the circuit court, challenging only the portion pertaining to a sustained injury to the neck. The circuit court affirmed the Appellate Panel's order, finding substantial evidence existed supporting the "finding that [McCuen] sustained a compensable injury to his neck as a result of the injury by accident." This appeal followed.
STANDARD OF REVIEW
The South Carolina Administrative Procedures Act (APA) establishes the standard for judicial review of decisions by the Appellate Panel. Lark v. Bi-Lo, Inc., 276 S.C. 130, 134-35, 276 S.E.2d 304, 306 (1981). Under the scope of review established in the APA, this court may not substitute its judgment for that of the Appellate Panel as to the weight of the evidence on questions of fact, but may reverse where the decision is affected by an error of law. Stone v. Traylor Bros., Inc., 360 S.C. 271, 274, 600 S.E.2d 551, 552 (Ct.App. 2004).
The substantial evidence rule governs the standard of review in a workers' compensation decision. Frame v. Resort Servs. Inc., 357 S.C. 520, 527, 593 S.E.2d 491, 494 (Ct.App.2004). The Appellate Panel's decision must be affirmed if supported by substantial evidence in the record. Shuler v. Gregory Elec., 366 S.C. 435, 440, 622 S.E.2d 569, 571 (Ct.App.2005). However, an appellate court can reverse or modify the Appellate Panel's decision if the appellant's substantial rights have been prejudiced because the decision is affected by an error of law or is "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record." S.C.Code Ann. § 1-23-380(A)(6) (2005); Bursey v. S.C. Dep't of Health & Envtl. Control, 360 S.C. 135, 141, 600 S.E.2d 80, 84 (Ct.App.2004).
"Substantial evidence" is not a mere scintilla of evidence nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the *24 administrative agency reached or must have reached in order to justify its action.
Lark, 276 S.C. at 135, 276 S.E.2d at 306.
"[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Palmetto Alliance, Inc. v. S.C. Pub. Serv. Comm'n, 282 S.C. 430, 432, 319 S.E.2d 695, 696 (1984). In workers' compensation cases, the Appellate Panel is the ultimate finder of fact. Shealy v. Aiken County, 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000). When the evidence is conflicting over a factual issue, the findings of the Appellate Panel are conclusive. Hargrove v. Titan Textile Co., 360 S.C. 276, 290, 599 S.E.2d 604, 611 (Ct.App.2004). The final determination of witness credibility and the weight to be accorded evidence is reserved for the Appellate Panel. Bass v. Kenco Group, 366 S.C. 450, 458, 622 S.E.2d 577, 581 (Ct.App.2005).[3]
LAW/ANALYSIS
BMW argues the Appellate Panel erred by finding McCuen suffered a compensable injury to his neck arising out of and in the course of his employment because it is not supported by substantial evidence. We agree.
For an injury to be compensable, it must arise out of and in the course of employment. S.C.Code Ann. § 42-1-160(A) (Supp.2008). An injury arises out of employment if a causal relationship between the conditions under which the work is to be performed and the resulting injury is apparent to the rational mind, upon consideration of all the circumstances. Rodney v. Michelin Tire Corp., 320 S.C. 515, 518, 466 S.E.2d 357, 358 (1996). "The claimant has the burden of proving facts that will bring the injury within the workers' *25 compensation law, and such award must not be based on surmise, conjecture or speculation." Clade v. Champion Labs., 330 S.C. 8, 11, 496 S.E.2d 856, 857 (1998).
Here, the sole issue on appeal is whether McCuen's neck injury arose out of and during the course of his employment with BMW.[4] Most of the testimony and medical reports presented at the hearing before the single commissioner were devoted to McCuen's injury to his hands and wrists. There is little reference and discussion of his neck injury in the Record on Appeal. Additionally, McCuen testified he first experienced soreness in his neck after he stopped working at BMW. McCuen stated he thought the problems with his hands and arms developed because his job as a dent technician required him to continually apply pressure on the joints in his hands. When asked what he believed caused the neck injury, he responded: "I don't know what, exactly, that was. I think it had to do with something from the way I was in the awkward positions." On cross-examination, McCuen admitted he did not know how he hurt his neck. Furthermore, McCuen testified he did not experience any neck problems until three or four months after he had stopped working for BMW. McCuen also did not report any problems with his neck to any physician until an appointment with Dr. Kutz in February of 2002.
The portions of the record McCuen relies upon in his brief to support his substantial evidence argument do not specifically assert his neck injury arose during and in the course of his employment with BMW. Instead, the record indicates McCuen injured his hands and wrists while working as a dent technician at BMW, but he did not know how or when he injured his neck. In fact, Dr. Gardener's medical reports reflect most of his time and attention was focused on the care and treatment of McCuen's wrists. While there is some mention of neck pain in the reports, they do not indicate McCuen's neck problems resulted from his carpal tunnel syndrome or the work injury to his wrists. In a letter responding to a telephone conversation with McCuen's attorney, Dr. Gardner clarified that McCuen's "carpal tunnel syndrome while aggravated by his activity in the auto industry was not the cause of it, but *26 certainly delayed onset is very typical." Dr. Gardner did not indicate McCuen's neck injury was caused or aggravated by his employment with BMW. The record also confirms McCuen operated his own landscaping company before, during, and after he worked for BMW. McCuen testified that in his landscaping business, he trimmed bushes, over-seeded yards, and cut lawns; however, he had to dissolve the company in March 2002 because of the pain in his hands. Two former co-workers testified McCuen continued doing landscaping work himself after he left BMW. The work included blowing leaves and cutting down a large bush. These incidents occurred before McCuen began experiencing neck pain.
CONCLUSION
We find substantial evidence does not exist in the record to support the Appellate Panel's finding that McCuen's neck injury arose out of and during the course of his employment with BMW. Therefore, the circuit court's order is
REVERSED.
THOMAS and GEATHERS, JJ., concur.
NOTES
[1] However, if a vehicle had a large dent, the repairs were made off the assembly line.
[2] BMW terminated his employment in May of 2002.
[3] The South Carolina General Assembly recently overhauled South Carolina's Workers' Compensation laws. These statutory changes affect claims for injuries occurring on or after July 1, 2007. See 2007 S.C. Acts 111, Part IV, Section 2 ("Except as otherwise provided for in this act, this act takes effect July 1, 2007, or, if ratified after July 1, 2007, and except [as] otherwise stated, upon approval by the Governor and applies to injuries that occur on or after this date.") (Emphasis added.) The injuries in this case began on October 26, 2001.
[4] BMW does not dispute the compensability of McCuen's wrist injuries. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318538/ | 723 P.2d 564 (1986)
The STATE of Wyoming, Plaintiff,
v.
Robin ZESPY, Defendant.
No. 85-165.
Supreme Court of Wyoming.
August 15, 1986.
*565 A.G. McClintock, Atty. Gen., Sylvia Hackl, Sr. Asst. Atty. Gen., Tim Goddard, argued, Legal Intern, and J. Scott Evans, Dist. Atty., Seventh Judicial Dist., for plaintiff.
Frank R. Chapman, Casper, for defendant.
Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.
CARDINE, Justice.
FACTS
We are presented with a very scanty transcript of the proceedings. Many of our background facts are drawn from the parties' briefs or from statements made by the lawyers during motion hearings. These facts are included to set the stage for our opinion but cannot form a basis for resolution of the sufficiency-of-the-evidence question. "We can only decide a case upon what appears in the record before us." Matter of Estate of Reed, Wyo., 566 P.2d 587, 590 (1977). Matters alluded to by attorneys at motion hearings or in briefs are not testimony and cannot be considered. Kirby Building Systems, Inc. v. Independence Partnership No. One, Wyo., 634 P.2d 342, 345 n. 2 (1981).
Mr. Zespy was charged with manufacturing and possessing psilocybin with intent to deliver in violation of § 35-7-1031(a)(ii), W.S. 1977. He pled not guilty, not guilty by reason of mental illness or deficiency, and not competent to stand trial. He was examined by Dr. Burnett at the Wyoming State Hospital in Evanston, by Dr. Elkin, a private psychiatrist practicing in Casper, and by Dr. Miracle, a psychologist. They found that he was not mentally responsible for his actions under § 7-11-305(b), W.S. 1977. The State determined, nevertheless, that it should proceed; and his jury trial began on January 14, 1985.
Although § 7-11-305(b) had been amended to place the burden of proving insanity upon the defendant, the parties agreed that the older version of the statute applied. Under that version, once the defense produced some evidence of insanity, the burden shifted to the State to prove beyond a reasonable doubt that Mr. Zespy was sane at the time of the offense. Prior to its 1983 amendment, § 7-11-305(b) provided:
"The prosecution shall prove beyond a reasonable doubt all the elements of the offense charged and the mental responsibility of the defendant. However, every defendant is presumed to be mentally responsible and the burden of first going forward and entering evidence on the issue of mental responsibility is upon the defendant."[1]
There is no doubt that the defense produced enough evidence of insanity to shift the burden to the prosecution. Drs. Miracle, Elkin and Burnett all testified that Mr. Zespy was not mentally responsible for his actions when he committed the alleged crimes. In rebuttal the State called Dr. Lee Coleman, a psychiatrist from Berkeley, California, who had never personally examined Mr. Zespy. After inquiring into Dr. Coleman's training, practical experience and writings, the prosecutor asked him to describe the kind of expert testimony he usually gave in criminal cases. Dr. Coleman responded:
"Because of my view about the limits on methods of the state of the art of psychiatry, I do not testify about the state of *566 mind of the defendant at the time of the crime or whether a person will be dangerous or try to give a diagnosis.
* * * * * *
"So my testimony goes to whether or not the methods employed by the psychiatrists, who have already testified in the case, deserve any credibility. My opinion is that the state of psychiatry does not deserve to be given that credibility. We just don't have the tools[;] therefore the answer to your question that whoever is bringing in psychiatry to try to prove their case, it will be the other side who might be interested in having me come in to testify about whether or not the methods are really reliable.
* * * * * *
"I am saying that the methods of psychiatry, the methods by which we decide upon diagnosis, the method by which we decide upon legal issues such as whether a person knew what they were doing was wrong or had capacity to conform. The methods psychiatry applies do, in my opinion, not come up to the standard of the expertise that the law thinks they do."
Defense counsel objected to Dr. Coleman's anticipated testimony on grounds that it would amount to an attack on the legislature's determination that expert psychiatric witnesses are competent to render an opinion in insanity cases. The district judge asked Dr. Coleman if it was his position that there are no proper psychiatric methods which could be used to reach the conclusions set forth in the Wyoming statutes. Dr. Coleman said that it was proper for psychiatrists to testify under the law, but he did not believe that their opinions were entitled to any credibility. The judge then told the prosecutor that he did not understand how Dr. Coleman's testimony would be admissible, and the prosecutor responded by explaining that the doctor would talk about the merits of the specific procedures followed by the other psychiatrists. The following discussion between the judge and prosecutor occurred:
"THE COURT: As I understand it, your witness is not going to say that the particular methods used by the experts for the Defense in this case were necessarily deficient, that something better could be done, but no matter what would have been done, it would not be sufficient.
"MR. EVANS: I think that that is correct, except that his testimony is going to focus on what they did, if he has an opinion that there is a better way perhaps he could suggest it, but he is going to focus on what they did and express his concern and the concerns of a lot of American Psychiatric Association about methodology.
* * * * * *
"THE COURT: I think you are presenting the position to the wrong forum that belongs probably in the Legislature, the Legislature has given us a law we must work with, obviously the Legislature thought there were methods that could be used to reach conclusions, otherwise to say the law for the Legislature is not good, that is not for us to say here."
Dr. Coleman then tried to explain his prospective testimony to the judge:
"THE WITNESS: Well, what I intend to testify to once these qualifications were finished with, my expectation was to examine the methods and means used by experts who have testified for the Defense and give my opinion on the methods that were used.
"THE COURT: But you, as I understand it, have stated that there are no methods that could be used to present a satisfactory answer to the question in our statute.
"THE WITNESS: Well, they are satisfactory, they are legally permissible, what I would expect to testify is as to their credibility, how scientific, how psychiatrists arrive at diagnosis, are there inconsistencies in the record, are the statements of the doctors in their reports inconsistent with actual records of hospitalization, and many, many other such *567 issues, which I found in my study of the records.
* * * * * *
"THE COURT: Well, I think, do I understand correctly, Doctor, what your position amounts to is you are saying there is not at this time any scientifically valid method, that can be applied to answer the questions posed by our statute? Is that right?
"THE WITNESS: Yes, that is true, methods don't exist.
* * * * * *
"THE COURT: The problem with that approach, it seems to me, it is basically a statement that our law is no good, invalid, the Legislature is mistaken in this procedure. I do not think that is admissible."
The district judge refused to admit Dr. Coleman's testimony, because it would indicate that there are no valid methods in psychiatry which can be used to answer the questions posed by the insanity statute. According to the judge, this would contradict the legislature's intent because the legislature was "obviously of the opinion there are some valid methods that can be used to answer the questions proposed."
Without Dr. Coleman's rebuttal testimony, the State was left with only lay witnesses to contradict the psychiatric testimony introduced by the defense. Relying on Reilly v. State, Wyo., 496 P.2d 899 (1972), the district judge held that lay testimony is insufficient, by itself, to prove sanity beyond a reasonable doubt when it is contradicted by the opinion of examining psychiatrists. Therefore, the trial court concluded that Mr. Zespy was entitled to a directed verdict of acquittal by reason of insanity.
REBUTTING EXPERT PSYCHIATRIC TESTIMONY
The constriction placed upon Reilly v. State, Wyo., 496 P.2d 899 (1972), was not correct. In Reilly, we held that a court may direct a verdict in favor of a criminal defendant if the prosecution does not provide any substantial credible evidence that he was sane. Id. at 902-903. We pointed out that, if the defendant's evidence of insanity is strong, the State may not be able to provide substantial credible evidence simply by producing lay witnesses. But we never said that lay witnesses were always insufficient or that the prosecution must always produce a psychiatrist to contradict the defendant's psychiatrists.
The proper rule is more clearly stated in Gerard v. State, Wyo., 511 P.2d 99, 104 (1973), a case which neither of the parties cited to the district judge:
"We noted in Reilly, supra, that neither the trial court nor this body should substitute its opinion for that of the jury, whose finding of fact should not be interfered with if there is any substantial evidence to support it. As the court said in People v. Krugman, 377 Mich. 559, 141 N.W.2d 33, 35 [(1966)], `The jury is the ultimate judge of defendant's sanity at the time of the crime, and * * * since it had before it evidence of defendant's behavior and state of mind upon the basis of which it could have found defendant sane at that time, it was not bound by the expert opinion testimony of the doctor. * * *' We again recognized this view in Jarrett v. State, Wyo., 500 P.2d 1027, 1031-1032 [(1972)], involving a murder charge, where we held that the trial court correctly denied a motion for acquittal notwithstanding the testimony of psychiatrists that defendant had suffered from a mental disease or disorder, our position being that the other evidence which had been adduced was sufficient to show that defendant knew and understood the nature and probable consequences of his act, knew that it was morally wrong or forbidden by law, and had sufficient will power to control his acts. As Mr. Chief Justice McIntyre said in Rice v. State, Wyo., 500 P.2d 675, 676 [(1972)], `A jury can always disregard the testimony of an expert if the jurors find it to be unreasonable.'"
There may be cases where neither lay testimony nor expert testimony by a non-examining psychiatrist is sufficient to rebut *568 the testimony of examining psychiatrists. If reasonable minds could not differ on the defendant's insanity, then that issue should not be submitted to the jury, and a directed verdict of acquittal should be entered. But, a court should not grant an acquittal solely because the prosecution fails to produce an examining psychiatrist to rebut the testimony of the defendant's psychiatrists. Under some circumstances, rebuttal by a lay witness or a non-examining psychiatrist may be sufficient to make the defendant's sanity a question for the jury.
ADMISSIBILITY OF DR. COLEMAN'S REBUTTAL TESTIMONY
The State contends that the district court should have admitted Dr. Coleman's rebuttal testimony under § 7-11-305(d), W.S. 1977, which states:
"In addition [to the designated examiners who examined the defendant for competency], the state and the defendant may summon other expert witnesses who did not examine the defendant. Such experts are not competent to testify as to the mental responsibility of the defendant; however, they may testify as to the validity of the procedures followed and the general scientific propositions stated by other witnesses." (Emphasis added.)
According to the State, this statute expressly permitted Dr. Coleman to attack the various tests employed by the defense psychiatrists. We agree.
When it was held that Dr. Coleman's proffered testimony would undermine statutory procedures, the distinction between the competency of a witness and the competency of a witness' opinion was improperly blurred. In § 7-11-305(c), the legislature stated that examining psychiatrists are competent to testify about the sanity of the defendant.[2] A rebuttal witness cannot argue that examining psychiatrists are incompetent witnesses who should not be permitted to testify. That matter is settled by the statute.
But, § 7-11-305(c) does not say that the opinions expressed by psychiatric witnesses are automatically competent, i.e., credible. Through § 7-11-305(d), the legislature has expressly permitted a non-examining psychiatrist to question the validity of the procedures and general scientific propositions presented by the examining psychiatrists. The legislature did not list the psychiatric procedures or propositions that it endorses. Nor did it limit the number of procedures or propositions that can be offered or attacked. If the examining psychiatrists offer every proposition or procedure for testing sanity that is known to man, a rebuttal psychiatrist can attack every one of them. And if the rebuttal psychiatrist can attack every test individually, there is no logical reason why he cannot attack them as a group by stating that there are no valid tests that have been developed by the psychiatric profession.
If the legislature thought that there are at least some valid psychiatric tests of sanity, it could have endorsed those tests in the statute. But the legislature did not do so. Apparently, the legislature could not decide which psychiatric tests, if any, are valid, so it left that decision to the juries on a case-by-case basis. The legislative intent is not violated when a rebuttal witness tells the jury that there are no psychiatric tests which can be used to ascertain sanity. Instead, such testimony helps the jury perform its delegated task, the evaluation of the psychiatric tests.
Under our interpretation of § 7-11-305(d), the jury is free to disregard the rebuttal testimony of a witness like Dr. Coleman and conclude that some or all of the tests performed by the examining psychiatrists are credible. On the other hand, the jury should also be free to conclude that there are no psychiatric tests that can help it ascertain the defendant's sanity at the time of the offense. The jury would *569 then have to decide the sanity issue based on evidence other than psychiatric test results. For example, it might have to apply its collective understanding of human behavior to the defendant's criminal acts, his demeanor in the courtroom or his other out-of-court conduct.
The jury's reliance on evidence other than psychiatric opinion is consistent with our opinion in Gerard v. State, supra, 511 P.2d at 104. There we said that a jury can disregard psychiatric testimony and rely on other evidence which shows that the defendant knew his actions were morally wrong and that he had sufficient will power to control his acts.[3] We quoted with approval the following statement:
"`The jury is the ultimate judge of defendant's sanity at the time of the crime, and * * * since it had before it evidence of defendant's behavior and state of mind upon the basis of which it could have found defendant sane at that time, it was not bound by the expert opinion testimony of the doctor.'" Id., quoting People v. Krugman, 377 Mich. 559, 141 N.W.2d 33, 35 (1966).
Of course, the jury would have been free to ignore Dr. Coleman's views and rely upon the opinions of the defendant's psychiatrists. In either case, the jury would have ultimately applied the legislature's definition of insanity. Dr. Coleman's critique of all psychiatric testing would not have interfered with the jury's ability to determine Mr. Zespy's sanity under the legislature's definition of that term.
In conclusion, the district court should have allowed Dr. Coleman to testify about the tests conducted by the examining experts. He should also have been permitted to testify that there are no psychiatric tests upon which a psychiatrist can base a valid opinion about a defendant's sanity. This kind of testimony is permitted by § 7-11-305(d), W.S. 1977. It would not have nullified the legislature's decision that examining psychiatrists are competent witnesses, and it would not have prevented the jury from applying the legislature's definition of insanity.
SUFFICIENCY OF THE EVIDENCE
The State argues, in a perfunctory manner, that there would have been sufficient evidence of sanity to prevent a directed verdict if the court had permitted Dr. Coleman to testify. This is not the kind of legal issue which merits attention in a bill of exceptions. Our analysis of the sufficiency of the evidence under the facts of this case will have no impact on either of these parties or future litigants. Moreover, the record does not contain any psychiatric or lay testimony other than the statements of Dr. Coleman. With this record, we would not be able to comment on the sufficiency of the evidence even if it merited our attention. See Matter of Estate of Manning, Wyo., 646 P.2d 175, 176 (1982).
URBIGKIT, Justice, concurring in part and dissenting in part.
I concur with the court in determining that the rebuttal testimony of lay witnesses is admissible and may have been sufficient to raise a jury issue, and further that no sufficiency-of-the-evidence issue was suitably presented.
I differ with the majority in regard to the claimed error of the trial judge in rejecting the proffered testimony of the nonexamining psychiatric expert which was tendered to rebut the efficacy of the examining experts' testimony on the mental illness and deficiency plea.
Although I have serious concern for court control and supervision of expert witnesses as a class of paid professionals, this discussion will be confined to the peculiar status of experts in Wyoming, within the purview of the plea made pursuant to Rule *570 15, W.R.Cr.P. and § 7-11-301 et seq., W.S. 1977, and particularly § 7-11-305(d).
In support of the trial court's decision to exclude the testimony of the nonexamining psychiatric witness, I will address the difference between rebuttal attack on the validity of procedures utilized by examining experts, described in their testimony, and a general attack on an entire field of academic inquiry.
It is not logical to contend, as did the witness (Coleman), and now the State of Wyoming in this bill of exceptions, that if the witness challenges the validity of specific processes he can also logically deny the validity of all processes without first demonstrating knowledge and expertise about every possible process or combination of processes that may or may not have been utilized by the examining expert witness on the subject of constitutionality and statutorily required absence of mental illness or deficiency.
Found in the syllogistic conclusion is one of the classic fallacies of logic.[1]
The authorities evaluating logic as a reasoning process have also defined this negative argumentative approach as "scientific crank" logic the attack of an entire area of expertise as a method to contradict the knowledge and testimony of the individual expert witness. See Salmon, Logic, p. 68 (1963).
Whatever Coleman may consider to be his limits to accomplish determinative evaluations within the field of psychiatry, the Wyoming legislature has determined that the knowledge and techniques of psychiatrists will be used to evaluate the mental illness or deficiency of a criminal defendant, and the United States Supreme Court requires the utilization of psychiatry to afford constitutional rights. Section 7-11-303, W.S. 1977; State v. Pressler, 16 Wyo. 214, 92 P. 806 (1907); Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975); Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985); Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966); Bishop v. United States, 350 U.S. 961, 76 S. Ct. 440, 100 L. Ed. 835 (1956); Blake v. Kemp, 1 F.R.S.3d 1263, 758 F.2d 523 (11th Cir.), reh. denied 763 F.2d 419, cert. denied ___ U.S. ___, 106 S. Ct. 374, 88 L. Ed. 2d 367, 3 F.R.S.3d 494 (1985).
It is nonsensical to attack an area of expertise when the constitutions, both state and federal, require that an inquiry into that discipline may be necessary to provide individual rights within the criminal justice system.
The broad question presented by the bill of exceptions is whether the trial court has the authority, Lessard v. State, Wyo., 719 P.2d 227 (1986), and Rocky Mountain Trucking Co. v. Taylor, 79 Wyo. 461, 335 P.2d 448 (1959), to deny admission of the testimony of an expert witness when the expert denies the efficacy of previously introduced professional evaluation as an attack on psychiatry in general. I have no doubt that if Coleman had taken each of the methods of evaluation utilized by each of the witnesses for the defense, and first testified as to his professional knowledge and experience with that test or process and finally described its separate invalidity, then the issue presented would have been his credibility and not his competency.
The difference to be recognized is that competency is the threshold requirement possession of the legal fitness and qualifications to testify, Black's Law Dictionary, p. 257 (5th ed. 1979), while credibility is the subjective evaluation of the testimony of a competent witness by the fact-finder, Black's Law Dictionary, supra at 330. The court determines competency and the fact-finder *571 assesses credibility. This dissent is postured on that difference.
It would be foolish not to recognize that some inhabitants of the earth still believe that the earth is flat, and that likewise others conceptualize that psychiatry is only slightly preferable to witch-doctoring.
However, the trial court has just so much time to exercise its discretion in trying to provide social justice. Consequently, authority to make reasoned decisions in the broad field of mental illness or deficiency should not be denied. Psychiatry is all that there is, and its use is constitutionally invoked and statutorily defined.[2]
I would find the decision overbroad in applying the criteria of credibility to the statutory limitation of competency wherein the witness "may [only] testify as to the validity of the procedures followed and the general scientific propositions stated by other witnesses." Section 7-11-305(d). This statutory language does not afford creation of a "field of competency" to testify that psychiatry is invalid, but only that the particular diagnostic efforts were invalid in concept or application. See Coleman, Psychiatry and Personal Injury: Exposing the Experts, For the Defense, p. 8 (February 8, 1985); Blinder, Psychiatric Analysis in Personal Injury Cases, Trial, p. 75 (May, 1986). The cross-examination techniques outlined in the latter publication are appropriate for impeaching credibility, but the intrinsic question which this court should here consider is competency, and competency should be determined by the trial judge. See Lessard v. State, supra. The witness should be able to make himself incompetent as well as incredible.
We said in Smith v. State, Wyo., 564 P.2d 1194, 1199 (1977):
"* * * The admission or rejection of expert testimony on a wide range of subjects is a decision solely within the sound discretion of the trial court; and that court's decision will only be reversed upon a showing of clear and prejudicial abuse. [Citations.]"
In my view, the thrust of Coleman's testimony its competency falls directly within the court's sound discretion since his testimony did not evaluate the procedures followed and the general scientific proposition stated by the prior psychiatric witnesses and, of significance, did not see the individual involved in order to make some personal assessment for diagnostic purposes. See Lessard v. State, supra.
Equally valid assistance to the jury could likely have been afforded by one or two witch doctors, one or two medicine men, and both the town barber and the female hair stylist. Cf. Barefoot v. Estelle, 463 U.S. 880, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983), and Estelle v. Smith, 451 U.S. 454, 473, 101 S. Ct. 1866, 1878, 68 L. Ed. 2d 359 (1981). I do not find compliance with provisions of the Wyoming Constitution, specifically Art. 1, § 6, the due-process clause, from such unreliable testimony. See Note, Evidence Expert Testimony Admissibility of Expert Testimony: Wyoming Takes A Moderate Approach, XIX Land & Water L.Rev. 708 (1984). See also McCabe v. R.A. Manning Construction Co., Inc., Wyo., 674 P.2d 699 (1983); Buhrle v. State, Wyo., 627 P.2d 1374 (1981); and Frye v. United States, 293 F. 1013 (D.C. Cir.1923).
"There are good reasons why not every ostensibly scientific technique should be recognized as the basis for expert testimony. Because of its apparent objectivity, *572 an opinion that claims a scientific basis is apt to carry undue weight with the trier of fact. In addition, it is difficult to rebut such an opinion except by other experts or by cross-examination based on a thorough acquaintance with the underlying principles. In order to prevent deception or mistake and to allow the possibility of effective response, there must be a demonstrable, objective procedure for reaching the opinion and qualified persons who can either duplicate the result or criticize the means by which it was reached, drawing their own conclusions from the underlying facts." United States v. Baller, 519 F.2d 463, 466 (4th Cir.), cert. denied 423 U.S. 1019, 96 S. Ct. 456, 46 L. Ed. 2d 391 (1975).
"Like the insanity defense, the practice whereby the courts call in experts to advise them on matters not generally known to the average person goes back a long time: in English courts, over four centuries. Initially, the experts were used as technical assistants to the court, rather than as witnesses. The judge summoned experts to inform him about technical matters; he then determined whether the information should be passed on to the jury. By the middle of the seventeenth century, when the finding of the facts had become the exclusive province of the jury, the practice of court-appointed experts reporting to the judge was abandoned; instead, the experts were called as witnesses by the parties involved in the dispute." Simon, The defense of insanity, 11 Journal of Psychiatry and Law 183, 193 (1983).
The article from which the quotation above is taken affords a brief and interesting history of the insanity defense, including the early stated criteria in 1723 of the "wild beast test." See also Levine, The adversary process and social science in the courts: Barefoot v. Estelle, 12 Journal of Psychiatry and Law, 147, 149-150 (1984):
"Expert testimony is admitted at trial because an expert may be able to contribute something beyond what the lay jury or fact finder can determine from the facts. The expert may not only testify to facts, but based upon special knowledge, skill, or experience, the expert may assist the trier of fact to draw inferences from facts. To warrant use of an expert, the `subject of the inference must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman.' [Cleary, McCormick's Handbook of the Law of Evidence (2d ed. 1972).]"
The article properly comports with my concern and distills the basis upon which the sound discretion of the trial court to evaluate the proffered testimony should still be afforded.
"In Barefoot v. Estelle, the Supreme Court admitted psychiatric testimony of dangerousness in the death penalty phase of a trial for a capital offense, despite substantial empirical evidence such predictions were more often wrong than right, and despite opposition from the American Psychiatric Association stating that such predictions were scientifically unacceptable and possibly unethical. The Court's opinion relied on adversary process to protect against the unreliability of expert testimony." 12 Journal of Psychiatry and Law, supra, synopsis at 147.
See also Chavez v. State, Wyo., 604 P.2d 1341, 1349 (1979), cert. denied 446 U.S. 984, 100 S. Ct. 2967, 64 L. Ed. 2d 841 (1980). This court should
"* * * `[recognize] the well established rule that the district court's determination of whether an expert's qualifications are established will not be disturbed except in extreme cases or when a clear abuse of discretion is shown,' referring to Lee v. State, Wyo., 556 P.2d 217 (1976), and Rule 702, W.R.E. Also see Runnion v. Kitts, Wyo., 531 P.2d 1307 (1975)."
I would affirm the trial court's decision to exclude the proposed Coleman testimony as rebuttal evidence in the insanity inquiry.
NOTES
[1] The statute, as amended, provides:
"The prosecution shall prove beyond a reasonable doubt all the elements of the offense charged. Every defendant is presumed to be mentally responsible. The defendant shall have the burden of going forward and proving by the greater weight of evidence that, as a result of mental illness or deficiency, he lacked capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law." Section 7-11-305(b), W.S. 1977, Cum.Supp. 1985.
[2] Section 7-11-305(c), W.S. 1977, states:
"The designated examiners who examined the defendant pursuant to W.S. 7-242.3 [§ 7-11-303] or 7-242.4 [§ 7-11-304] are competent witnesses."
[3] Under § 7-11-304(a), W.S. 1977:
"A person is not responsible for criminal conduct if at the time of the conduct, as a result of mental illness or deficiency, he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law."
[1] The syllogism may be variously illustrated: Either:
I am an expert about some evaluative processes.
Those processes are invalid.
All evaluative processes are invalid.
Or:
Some evaluative processes are invalid.
Other experts may use those processes.
The conclusions of those experts are invalid.
This appears to be the fallacy of an undistributed middle term and illicit process of a major or minor term. Chase, Guides to Straight Thinking, p. 205 (1956).
[2] "* * * The cunning of modern bureaucracy is that it creates a hierarchy in which no one feels personally responsible for anything important that goes wrong. Everywhere I look I see the public mental health system being shaped by this cunning, and legal reform seems to me to have hastened that process. By setting barriers in the path of treatment responsibilities, and by imposing on psychiatrists responsibilities they could not fulfill, legal reform has turned a ratchet that will not easily be turned back. As we pass through the 1980s the great ideological dragon of psychiatry has been coaxed out of its cave. The major legal battles have been fought, and when the dust settled the dragon was gone and all that remained was a collection of hapless civil servants. Yet madness has not gone out of the world as was hoped, in fact madness is more visible than ever before in this century." Stone, Law, Psychiatry, and Morality p. 156 (1984). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318559/ | 179 Ga. App. 434 (1986)
346 S.E.2d 881
HAMILTON
v.
THE STATE.
71955.
Court of Appeals of Georgia.
Decided June 20, 1986.
Derek Harrison Jones, for appellant.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, Andrew Weathers, Assistant District Attorneys, for appellee.
BENHAM, Judge.
Appellant and a co-defendant were jointly tried in a bifurcated proceeding for armed robbery and possession of a firearm by a convicted felon. Appellant was found guilty of the possession charge and robbery. The appellate decision in his co-defendant's appeal is found in Dye v. State, 117 Ga. App. 824 (341 SE2d 314) (1986).
1. Appellant first argues that his motions for directed verdicts of acquittal were improperly denied. In light of the Supreme Court's recent holding in Milam v. State, 255 Ga. 560 (341 SE2d 216) (1986), we disagree.
In the first portion of the bifurcated proceeding (see Head v. State, 253 Ga. 429 (3) (322 SE2d 228) (1984)), the State presented the testimony of the victim, who stated he was accosted by two men in a *435 car as he walked down a street. When the victim attempted to walk away from the car, one of the car's two occupants threatened to shoot him if he did not turn around. The victim testified that the speaker was not the driver and identified appellant as the lone passenger. The victim returned to the side of the car, where the driver pointed a gun at him and ordered him to empty his pockets. The victim was relieved of $37. Approximately one hour later appellant and his co-defendant were arrested and their vehicle searched. A rifle with a pistol handle, identified by the victim as the weapon used in the robbery, was removed from the driver's seat, and a handgun was found under the passenger seat appellant had occupied. Since the evidence presented did not demand a verdict of not guilty, it was not error to deny the motion for directed verdict on the armed robbery count. See OCGA § 17-9-1; Paxton v. State, 160 Ga. App. 19 (5) (285 SE2d 741) (1981).
After the jury determined appellant was guilty of robbery by intimidation and not armed robbery as charged, the State introduced evidence of appellant's 1984 conviction for aggravated assault to support the charge of possession of a firearm by a convicted felon. Appellant's motion for directed verdict of acquittal on the possession charge was denied, and the jury subsequently returned a guilty verdict.
The jury verdict of guilty to the lesser offense of robbery by intimidation reflects their rejection of the idea that appellant had actually or constructively possessed either weapon insofar as the armed robbery count was concerned. However, they did accept the theory of constructive possession in order to convict appellant of the charge of possession of a firearm by a convicted felon. Inasmuch as there was evidence that appellant's co-defendant possessed a gun in furtherance of their joint resolve to commit an armed robbery, denial of a directed verdict of acquittal was in order. While the verdicts rendered are inconsistent, the inconsistent verdict rule in criminal cases was abolished in this state by the Supreme Court's decision in Milam v. State, supra.
2. While cross-examining the victim, counsel for appellant attempted to impeach the witness by questioning him about his prior conviction for burglary. The trial court sustained the State's objection, which ruling appellant now enumerates as error. "To impeach a witness by a prior conviction the conviction must be proved by the record of conviction itself, not by cross-examination. [Cits.]" Kimbrough v. State, 254 Ga. 504 (2) (330 SE2d 875) (1985).
Appellant also takes issue with the limitation placed upon his counsel during closing argument about the victim's criminal past. The trial court refused to allow counsel to argue the point because there was no evidence of record to support the argument. "In closing arguments each side is permitted to make any argument which is reasonably *436 suggested by the evidence." Durden v. State, 250 Ga. 325 (6) (297 SE2d 237) (1982). The remark made by the assistant district attorney in his opening statement alluding to the victim's criminal past was not evidence (Coker v. State, 234 Ga. 555 (12) (216 SE2d 782) (1975), rev'd on other grounds, Coker v. Ga., 433 U.S. 584 (97 SC 2861, 53 LE2d 982) (1977)), and, as discussed above, the victim's prior conviction was not placed in evidence. Thus, the trial court did not abuse its discretion by prohibiting appellant's counsel from arguing the point to the jury.
3. After admitting that he had purchased marijuana in the past, appellant's co-defendant was asked about his 1976 federal conviction for conspiracy. Appellant objected to the admission of evidence of the prior conviction on the ground that it was prejudicial to appellant, and moved for a mistrial or severance. Appellant's next enumeration embodies the denial of his motions.
"The grant or denial of a motion for severance lies within the sound discretion of the trial court and the ruling of the court will be overturned only in the event of an abuse of that discretion. [Cits.] . . . To obtain a new trial, [appellant] must. . . show prejudice and a denial of due process. [Cit.]" Johnson v. State, 159 Ga. App. 819 (1) (285 SE2d 252) (1981). Appellant claims that evidence of his co-defendant's prior conviction prejudiced appellant by placing him in the company of a convicted felon who had been found guilty of conspiracy, the theory under which the State was operating to obtain appellant's conviction. Even if we were to agree that appellant suffered some prejudicial effect from the admission of his co-defendant's prior conviction, our review of the record does not reveal the denial of due process necessary to grant a new trial. Therefore, the denial of the motion for severance was not error. Nor was it error to deny appellant's motion for mistrial, for that is a matter within the discretion of the trial court and is not grounds for reversal on appeal unless a mistrial was mandated to insure a fair trial. Everett v. State, 253 Ga. 359 (4) (320 SE2d 535) (1984).
4. Appellant's next enumerated error was resolved against him in the appeal of his co-defendant. Dye v. State, supra.
5. Appellant, who presented no evidence at trial, claims the assistant district attorney was erroneously permitted to comment upon appellant's failure to testify. During his closing argument, the prosecuting attorney remarked several times that the evidence against appellant was unrefuted. This was not improper argument. Lowe v. State, 253 Ga. 308 (1) (319 SE2d 834) (1984).
6. Appellant contends that jury instructions on conspiracy and voluntary intoxication were not warranted. However, since the State presented evidence from which it could be determined that appellant and his co-defendant, acting together, robbed the victim, a charge on *437 conspiracy was in order. Thomas v. State, 255 Ga. 38 (2) (334 SE2d 675) (1985). Inasmuch as there was evidence that appellant and his co-defendant were intoxicated, it was not error to inform the jury that voluntary intoxication was not an excuse for the commission of a crime. OCGA § 16-3-4 (c); Webb v. State, 159 Ga. App. 403 (3) (283 SE2d 636) (1981).
Judgment affirmed. Deen, P. J., and Beasley, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2632490/ | 150 P.3d 552 (2007)
Patricia A. SOLTERO, Respondent,
v.
Kenneth L. WIMER, Petitioner.
No. 77548-6.
Supreme Court of Washington, En Banc.
Argued September 12, 2006.
Decided January 18, 2007.
*553 Allen Morris Gauper, Salina Sanger and Gauper, Spokane, WA, for Petitioner.
Robert R. Cossey, Robert R. Cossey & Associates PS, Spokane, WA, for Respondent.
CHAMBERS, J.
¶ 1 Washington courts have long recognized that community-like[1] property jointly owned by partners in a meretricious relationship is subject to a just and equitable distribution when the relationship ends. This distribution resembles in many ways the distribution of community property at the termination of a marriage.
¶ 2 Unlike the distribution in a divorce, however, the separate property of the parties in a dissolving meretricious relationship is not subject to distribution. In this case, after a full trial, the judge below identified no community-like property. Nonetheless, he awarded one of the parties $135,000 to be paid by the other. Because an equitable distribution of community-like property requires community-like property to distribute, we reverse.
FACTS
¶ 3 Kenneth Wimer and Patricia Soltero began dating in a nonexclusive relationship in 1983. In 1992 they moved in together. They stayed together through 2001, and the trial judge found that their relationship was monogamous and exclusive during that time.
¶ 4 Wimer owned Westside Honda in Spokane, Washington, and several associated motorcycle-all terrain vehicles-snowmobile businesses and properties. A few years into their relationship Soltero left a job with the Cheney Federal Credit Union to work for Wimer's motorcycle dealership. Soltero was paid $18,000 a year. Wimer's salary during that time was approximately $42,000 a year, *554 though he was compensated in other ways as well, and he retained capital in the business itself.
¶ 5 During this time, Soltero moved into Wimer's house. Wimer did not charge Soltero rent. Every month Wimer deposited $400 into Soltero's personal checking account to cover household expenses, which were minimal because most were paid for by Wimer's businesses. Wimer purchased another home and business in Priest Lake, Idaho. Soltero decorated the homes, worked in the gardens, and cooked for the couple and their guests. The trial court found that Soltero did not contribute financially to the relationship but undertook "all of the marital-like duties and obligations of the household." Clerk's Papers (CP) at 5.
¶ 6 Although Soltero and Wimer lived together and held themselves out to be a couple, they never purchased any personal or real property jointly nor did they commingle any money. Instead, they maintained their finances separate in separate bank accounts Soltero did add Wimer to her checking account, but Wimer never drew money from it. During their nine-year relationship Wimer's net worth increased from $1.5 million to more than $4.5 million, while Soltero's net worth does not appear to have materially grown.
¶ 7 In 2001, Wimer terminated the relationship via letter. Not long afterward he remarried his former wife. Meanwhile, Soltero brought this suit asserting that a meretricious relationship existed between them and seeking a distribution of their assets.
¶ 8 The trial court found that Soltero and Wimer had a meretricious relationship. The trial court also found Wimer had maintained his property and businesses as separate property and all rents, incomes, and profit from those businesses were also separate. The trial judge concluded:
The vast majority, if not the entire amount, of the earnings and increased value . . . during the . . . relationship can be traced to the growth of the business, property value increase, rental income and Mr. Wimer's benefit from early efforts and continued efforts to make the businesses and business holdings grow.
CP at 7, and:
The evidence was clear that all of the real property and business property was, remained, and is today the separate property of Mr. Wimer. Additionally, it is clear that all the rents, income and earnings, other than salary or wage income, from separate property remained separate property.
CP at 9. However, the trial court also ruled that:
Mathematical calculations, analysis and juxtaposition of numbers considering the parties' salaries, IRA contributions and other economic and financial realities leave me with the conclusion that the equitable distribution of property boils down to simply this: What is Ms. Soltero's rightful claim, if any, to an equitable distribution of the non-separate property earnings of the parties during those nine years? My analysis is as follows:
Yearly annual reasonable earnings/salary wages
Mr. Wimer $42,000 a year
Ms. Soltero $18,000 a year
____________
$60,000 × 9 years = $540,000.00
An equitable split is Mr. Wimer 70%, Ms. Soltero 30%, therefore, their individual earnings is a push.[2]
The value of Ms. Soltero's other services provided as a cohabitating, committed, long-term companion, including the obligations of running the household and business/social matters, net (meaning after consideration for board and room), is:
$15,000 a year × nine years or $135,000.00
CP at 9-10. Thus, the trial court ordered Wimer to pay Soltero $135,000. Wimer appealed, arguing that no meretricious relationship existed and, in the alternative, "services" performed are not compensable. A divided panel of the Court of Appeals affirmed *555 in part. Soltero v. Wimer, 128 Wash. App. 364, 115 P.3d 393 (2005). Acting Chief Judge Dennis J. Sweeney dissented. He found no reason to disturb the trial court's exercise of discretion but also opined that domestic services in a meretricious relationship are not compensable. Id. at 375-76, 115 P.3d 393 (Sweeney, A.C.J., dissenting) (quoting Jane Massey Draper, Annotation, Recovery for Services Rendered by Persons Living in Apparent Relation of Husband and Wife Without Express Agreement for Compensation, 94 A.L.R. 3d 552, 555 (1979)).
ANALYSIS
¶ 9 Property distribution at the end of a meretricious relationship is reviewed for abuse of discretion. Koher v. Morgan, 93 Wash.App. 398, 401, 968 P.2d 920 (1998) (citing In re Meretricious Relationship of Sutton, 85 Wash.App. 487, 491, 933 P.2d 1069 (1997)). Among other things, discretion is abused when it is exercised on untenable grounds. State v. Downing, 151 Wash.2d 265, 272-73, 87 P.3d 1169 (2004). While we review conclusions of law de novo, findings of fact merely need to be supported by substantial evidence. E.g., Nordstrom Credit, Inc. v. Dep't of Revenue, 120 Wash.2d 935, 942, 845 P.2d 1331 (1993).
¶ 10 "A meretricious relationship is a stable, marital-like relationship where both parties cohabit with knowledge that a lawful marriage between them does not exist." Connell v. Francisco, 127 Wash.2d 339, 346, 898 P.2d 831 (1995) (citing In re Marriage of Lindsey, 101 Wash.2d 299, 304, 678 P.2d 328 (1984)). Washington has "a three-prong analysis for disposing of property when a meretricious relationship terminates." In re Pennington, 142 Wash.2d 592, 602, 14 P.3d 764 (2000) (citing Connell, 127 Wash.2d at 349, 898 P.2d 831). First, the court decides whether a meretricious relationship existed. Second, "the trial court evaluates the interest each party has in the property acquired during the relationship. Third, the trial court then makes a just and equitable distribution of such property." Id.
¶ 11 Wimer conceded for the purposes of review that he and Soltero had a meretricious relationship. We turn now to the second prong, the property characterization. In Connell we clearly held that only property that would be considered community property in a marriage would be subject to a just and equitable distribution upon dissolution of a meretricious relationship. Connell, 127 Wash.2d at 351-52, 898 P.2d 831.[3] Property acquired during the meretricious relationship is presumed to be community-like, but the presumption is rebuttable. Id. Unlike a property distribution in a divorce, the separate property of the parties is not subject to distribution. Id. at 350, 898 P.2d 831. If there is no community-like property, then there is nothing to justly and equitably distribute.
¶ 12 Wimer argues that the trial court erred by treating the "domestic services" provided by Soltero as community-like property. We read the trial court's letter opinion differently. It appears to us that the trial court found that Soltero's domestic services provided a basis for an equitable distribution. The Court of Appeals affirmed, opining that "the growth in [Wimer's] separate estate between 1992 and 2001 could be considered by the court in determining a proper equitable distribution of property." Soltero, 128 Wash.App. at 372, 115 P.3d 393. The Court of Appeals is correct that the trial court could have found that some portion of the increase in value was community-like property, rather than due to the "natural enhancement" of the separate property. Cf. In re Marriage of Elam, 97 Wash.2d 811, 814, 650 P.2d 213 (1982). However, while the trial judge could have, he did not find that the increase in value was community-like property. Instead, the trial judge specifically *556 concluded that the increase in Wimer's estate was due to his separate, not community efforts.[4]
¶ 13 Soltero argues that both parties "contributed to the community in the meretricious relationship and the entire community efforts are therefore what must be looked at in an equitable distribution." Resp. to Pet. for Review at 5. If she means to say that contributions of effort to the community may increase the value of assets separately held by one party and create community-like interests in that increase, she is correct. But if she means to say that all of Wimer's separate property is potentially subject to equitable distribution, she is incorrect. In Connell we held that only property that would be considered community property in a marriage is subject to distribution. Connell, 127 Wash.2d at 351-52, 898 P.2d 831. We have been given no grounds to reconsider that opinion.
¶ 14 Since the trial judge identified no community-like assets to distribute, no equitable distribution under the meretricious relationship doctrine is possible.[5]
CONCLUSION
¶ 15 The trial court explicitly found that Wimer's business and real property were his separate property. The court identified no community-like assets. The $135,000 awarded to Soltero could only come from Wimer's separate assets, which are not reachable in a meretricious relationship dissolution. The trial court's decision to make a "distribution" is therefore not sustainable. We reverse and remand to the trial court with direction for entry of judgment consistent with this opinion.
WE CONCUR: GERRY L. ALEXANDER, Chief Justice, CHARLES W. JOHNSON, BARBARA A. MADSEN, RICHARD B. SANDERS, BOBBE J. BRIDGE, SUSAN OWENS, MARY E. FAIRHURST, JAMES M. JOHNSON, Justices.
NOTES
[1] For purposes of this opinion, we refer to property jointly held by putative meretricious partners as "community-like." We decline the invitation to call it "quasi-community property" because that term has other meanings in Washington statutory law, see, e.g., chapter 26.16 RCW, or to call it "pseudo-community property" because that term implies that the property is not actually jointly held.
[2] We are not entirely certain what the trial court meant by "push." It may mean that he believed that while the salaries were community-like property, the parties had already made a fair and equitable distribution of that income stream.
[3] We hold income and property acquired during a meretricious relationship should be characterized in a similar manner as income and property acquired during marriage. Therefore, all property acquired during a meretricious relationship is presumed to be owned by both parties. This presumption can be rebutted. All property considered to be owned by both parties is before the court and is subject to a just and equitable distribution. The fact that title has been taken in the name of one of the parties does not, in itself, rebut the presumption of common ownership. Connell, 127 Wash.2d at 351, 898 P.2d 831 (citations omitted).
[4] Ordinarily, the community would be entitled to the increase of value in property due to the labor of each member performed during the relationship, but not to the "natural increase" of the value of separate property. See Connell, 127 Wash.2d at 351-52, 898 P.2d 831; In re Marriage of Lindemann, 92 Wash.App. 64, 960 P.2d 966 (1998). At oral argument, Wimer's counsel contended that he had proved at trial that the increase in value in Wimer's estate was due to his separate efforts before the relationship began. That is consistent with, though not explicitly found in, the trial judge's written decision. While we base our conclusion on separate grounds, we accept for purposes of this opinion his characterization of the cause of the increase in value.
[5] Nothing in this opinion should be taken to foreclose the possibility of different theories of recovery being successfully pursued in similar cases. Cf. Vasquez v. Hawthorne, 145 Wash.2d 103, 108-09, 33 P.3d 735 (2001) (Alexander, C.J., concurring and canvassing other theories of recovery in meretricious-like dissolution cases). | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2632495/ | 150 P.3d 1178 (2007)
STATE of Washington, Appellant,
v.
Carla Rae VELTRI, Respondent.
No. 24861-5-III.
Court of Appeals of Washington, Division 3.
January 25, 2007.
*1179 Kevin Michael Korsmo, Spokane, WA, for Appellant.
Eric J. Nielsen, David Bruce Koch, Nielsen Broman & Koch PLLC, Seattle, WA, for Respondent.
BROWN, J.
¶ 1 Today, the State appeals the trial court's suppression order in its prosecution of Carla Veltri for possessing methamphetamine with the intent to deliver. Because the facts found by the trial court support its legal conclusion that an unwarranted general search occurred, we affirm.
FACTS
¶ 2 The facts are drawn from the court's findings. Officer Allen Edwards noticed a truck with mismatched license plates and decided to investigate to see if it was stolen. He saw the driver lawfully park and get out with two passengers. One passenger ran, and although Officer Edwards followed, he got away. When Officer Edwards returned to the truck, he saw the driver and the other passenger walking away. He contacted the driver and identified her as Carla Veltri. The other passenger was arrested on a warrant, but the later questioning and search of the truck was not incident to that arrest.
¶ 3 Officer Edwards asked Ms. Veltri if she owned the truck. At first Ms. Veltri said she did not, and later explained she had borrowed it. Ms. Veltri possessed solely a Washington identity card and she did not have the vehicle registration or proof of insurance. Officer Edwards learned the rear license plate belonged to the vehicle. The truck had not been reported stolen. Officer Edwards turned his attention elsewhere after he decided not to issue an infraction.
¶ 4 Officer Edwards decided Ms. Veltri was not free to leave because he wanted to search further for "possible contraband or weapons" even though he knew "the vehicle had not been reported stolen." Clerk's Papers at 71, 72. Without advising her of her consent rights, Officer Edwards asked Ms. Veltri if he could look inside the truck. Ms. Veltri did not care, and nothing suspicious was found. Officer Edwards then asked Ms. Veltri for permission to search two suitcases in the truck bed. Ms. Veltri told Officer Edwards the suitcases were not hers and she did not care if he searched them. Controlled substance contraband was found in one suitcase.
¶ 5 Officer Edwards arrested Ms. Veltri. The State charged her with possessing a controlled substance, methamphetamine, with intent to deliver. Ms. Veltri successfully moved to suppress the evidence over the State's argument that the suitcases were abandoned. The court concluded the officer's search exceeded the scope of the initial stop and Ms. Veltri's consent was involuntary. After suppressing the evidence, the court dismissed the case. The State appealed.
ANALYSIS
¶ 6 The issue is whether, considering the State's abandonment theory, the trial court erred in suppressing the evidence seized in the warrantless suitcase search.
¶ 7 We review a trial court's findings of fact in a motion to suppress for substantial evidence. State v. Mendez, 137 Wash.2d 208, 214, 970 P.2d 722 (1999). Unchallenged findings of fact are verities on *1180 appeal. State v. Acrey, 148 Wash.2d 738, 745, 64 P.3d 594 (2003). We review a trial court's conclusions of law de novo. Id. The court's conclusions of law must be supported by its findings of fact. State v. Dodson, 110 Wash.App. 112, 123, 39 P.3d 324 (2002). Unargued assignments of error in an opening brief are deemed abandoned. Fosbre v. State, 70 Wash.2d 578, 583, 424 P.2d 901 (1967).
¶ 8 The State relies on State v. Evans, 129 Wash.App. 211, 224, 118 P.3d 419, review granted, 157 Wash.2d 1001, 136 P.3d 758 (2006), for the proposition that an individual's denial of ownership of a specific item in response to police questioning is an abandonment and waiver of any privacy rights in that property. On the other hand, police questioning must fall within the scope of the circumstances that initially justify an interference or detention. State v. Armenta, 134 Wash.2d 1, 15-16, 948 P.2d 1280 (1997).
¶ 9 If a traffic stop is initially justified, the detention length and scope must be reasonably related to the circumstances justifying the stop. RCW 46.61.021(2); State v. Kennedy, 107 Wash.2d 1, 4, 726 P.2d 445 (1986); State v. Tijerina, 61 Wash.App. 626, 628-29, 811 P.2d 241 (1991). Once the initial stop purpose is accomplished, any further detention must be based on "`articulable facts giving rise to a reasonable suspicion of criminal activity.'" Armenta, 134 Wash.2d at 15-16, 948 P.2d 1280 (quoting State v. Cantrell, 70 Wash.App. 340, 344, 853 P.2d 479 (1993)). In other words, "police officers may not use routine traffic stops as a basis for generalized, investigative detentions or searches." State v. Henry, 80 Wash.App. 544, 553, 910 P.2d 1290 (1995).
¶ 10 Here, the trial court found Officer Edwards stopped Ms. Veltri to investigate the mismatched license plates and a possibly stolen truck. The rear license plate was valid. The truck was not reported stolen. Officer Edwards decided not to issue an infraction. The stop was extended by securing uninformed consent to search the truck-cab, where nothing suspicious was found, and later, two suitcases in the truck-bed. Ms. Veltri denied suitcase ownership and declared her lack of care about the extended searches. From this, the court concluded Officer Edwards switched his investigatory focus to looking for contraband and weapons.
¶ 11 First, the State argued solely abandonment in its opening brief, not mentioning its other assignments of error. Thus, we do not analyze the State's other assignments of error. Fosbre, 70 Wash.2d at 583, 424 P.2d 901. Even so, given the facts, substantial evidence supports the court's findings. Mendez, 137 Wash.2d at 214, 970 P.2d 722.
¶ 12 Second, our focus is whether the facts support the trial court's conclusions. Officer Edwards dispelled his stolen truck suspicions and decided not to issue an infraction, resolving the initial stop purposes. See Armenta, 134 Wash.2d at 13, 15-16, 948 P.2d 1280; Henry, 80 Wash.App. at 550, 910 P.2d 1290. Given the trial court's findings, it correctly concluded Officer Edwards lacked further reasonable articulable suspicion of criminal activity. Armenta, 134 Wash.2d at 13, 15-16, 948 P.2d 1280. Thus, the trial court correctly decided an impermissible general exploratory search occurred. Id.; Henry, 80 Wash.App. at 550-53, 910 P.2d 1290. Therefore, abandonment is not the issue; the continued detention, questioning, and search were unlawful. Armenta, 134 Wash.2d at 15-16, 948 P.2d 1280; Henry, 80 Wash.App. at 550-53, 910 P.2d 1290. Moreover, our Supreme Court has decided State v. Evans, ___ Wash. ___, ___, 150 P.3d 105, 111 (2007), since argument of this case, rejecting the State's abandonment argument.
¶ 13 Affirmed.
WE CONCUR: SWEENEY, C.J., and KATO, J. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318625/ | 723 P.2d 1281 (1986)
ALASKA SURVIVAL, Paul Bratton, Judy Price, G.M. Chartrand, and Millie Gray, Appellants,
v.
STATE of Alaska, DEPARTMENT of NATURAL RESOURCES; Esther C. Wunnicke, Commissioner, State of Alaska, Department of Natural Resources; and Thomas Hawkins, Director, Division of Forest, Land and Water Management, State of Alaska, Department of Natural Resources, Appellees.
No. S-996.
Supreme Court of Alaska.
August 29, 1986.
Rehearing Denied October 29, 1986.
*1283 Robert W. Adler, Eric Smith, Stephan H. Williams, Trustees for Alaska, Anchorage, for appellants.
M. Francis Neville, Asst. Atty. Gen., Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for appellees.
Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.
OPINION
MOORE, Justice.
This appeal challenges a state land disposal of thirty-two agricultural homesteads near Talkeetna. A group of local residents sued to block the 3,530-acre offering. The superior court upheld the decision of the State Department of Natural Resources (DNR) to dispose of the land in a September 1984 lottery. We conclude that the disposal was invalid because DNR failed to comply with the land use planning process mandated by statute. We reverse the superior court judgment and remand DNR's disposal decision for reconsideration by the agency. We also conclude that the court erred in denying the plaintiffs status as public interest litigants for purposes of awarding attorney's fees.
I. FACTS AND PROCEDURAL HISTORY
The land disposal at issue, referred to as "Chase III," is located approximately five miles north of Talkeetna, near the community of Chase. The state first proposed to offer land in this area for agricultural development in 1979. Between 1979 and 1983 *1284 DNR held several public hearings in Talkeetna to discuss what it initially proposed to be a commercial agriculture project involving disposal of parcels ranging in size to 560 acres.
Local residents repeatedly objected that increased settlement would threaten their subsistence-type lifestyle and overtax area resources. Many Chase-area residents rely on the use of surrounding state land to gather firewood, set traplines, hunt and fish. Besides threatening their lifestyle, local residents argued that the area is not suited for commercial farms due to steep slopes, drainage problems and poor soils.
In response, DNR made several changes in its disposal plan, including a reduction in the amount of land to be offered from 7,000 acres to approximately 4,500 acres. In February 1983 DNR issued a written finding, pursuant to former AS 38.05.035(a)(14),[1] that the Chase III commercial agriculture disposal was in the state's best interests. However, the Commissioner of DNR subsequently "postponed" the scheduled April land sale in response to local opposition.
The commercial disposal was never implemented. Instead, in late 1983 DNR revised the disposal to meet the objectives of a newly enacted homestead program. Alaska Statute 38.09, enacted in 1983, authorizes the disposal of smaller, noncommercial agricultural homesteads to applicants who agree to meet certain requirements. DNR's new plan called for disposal of about 6,000 acres in parcels ranging from 40 to 160 acres each. The plan focused on subsistence-type farming rather than commercial agriculture development.
DNR published a legal notice stating that a written best interests finding had been made regarding the agricultural homestead disposal, and a public meeting was scheduled for January 27, 1984. In a January 13 letter to DNR, Judy Price, one of the appellants here, requested a copy of the finding. She did not receive a copy by mail nor was the finding made available to her or other people when they attended the meeting.
During the meeting local residents questioned why DNR was proceeding with the Chase disposal prior to completion of the Susitna Area Plan, a statutorily mandated land use plan for the region. They also reiterated concerns raised regarding the commercial disposal, including their view that the area is not suitable for farm development. Following the meeting DNR officials took a brief field trip to the Chase area and subsequently made several changes to the site plan. The final version called for a smaller disposal of 3,530 acres and a reduction in the number of parcels to thirty-two, with four more scheduled for a later offering.
In April 1984 the director of DNR's Division of Forest, Land and Water Management signed an amendment to the previous best interests finding for the commercial disposal. The amendment concluded that the revised agricultural homestead disposal was in the state's best interests. DNR issued an order classifying 1,286 acres of Chase-area land for agricultural use. Other Chase lands had been classified in 1980. A September 14 lottery was scheduled.
Several individuals and an organization of local residents known as Alaska Survival appealed the director's best interests determination to the Commissioner of DNR. DNR held a hearing at the appellants' request and the Commissioner subsequently affirmed the director's decision to proceed with the agricultural homestead disposal.
In mid-August, less than a month before the scheduled lottery, DNR received new information that the soils in the Chase area were of poorer quality than initial surveys indicated. Throughout its planning process DNR had relied on soils information provided by the United States Soil Conservation Service (SCS), based on a preliminary 1980 SCS soils survey. This survey showed that *1285 88.7 percent of the acreage ultimately included in the homestead disposal contained class II or III soils.[2] In March 1984 DNR requested SCS to update its survey. The revised data showed that none of the thirty-two parcels contained class I or II soils and that twelve of the parcels contained little or no class III soils. Overall, the disposal area contains predominantly class IV or worse soils.[3]
Some DNR officials were concerned that the new data represented a major deviation from the soils information upon which the Chase disposal was premised. When the director of DNR's Division of Agriculture received preliminary word of the new data he wrote the SCS requesting a report as soon as possible. His letter stated: "We have been informed ... that some of the parcels in the Chase III agricultural homestead area may not have any class II or III soils. The political and public policy problems associated with offering [such] land for agricultural homesteading ... are obvious."
After receiving the SCS report, DNR officials met to consider the new information and decided to proceed with the disposal without any changes. The lottery was held and DNR notified the winners that the soils information in the State Land Disposal Brochure had been revised.
A week before the lottery, Alaska Survival and four individuals (hereafter referred to collectively as Alaska Survival) filed a complaint in superior court appealing from the Commissioner's decision and seeking injunctive relief to halt the lottery.[4] The trial court denied a temporary restraining order and allowed the lottery to proceed after the state agreed to delay staking of the land pending a decision on the merits of the suit. The trial court subsequently affirmed DNR's decision to offer Chase land for agricultural homesteading, and awarded the state $10,420 in attorney's fees. The court issued a stay closing the area to entry by the lottery winners pending this appeal.
II. DISCUSSION
Alaska Survival appeals the decision upholding the Chase III disposal and the award of attorney's fees. Appellant challenges the disposal on both substantive and procedural grounds, arguing 1) that the disposal is not in the state's best interests, and 2) that DNR did not follow the land use planning and decision-making process mandated by statute.
A. The Best Interests Determination
Alaska's Constitution and the Alaska Land Act, AS 38.05, express a policy of encouraging settlement of the state's lands "by making them available for maximum use consistent with the public interest." Alaska Const. art. VIII, § 1; AS 38.05.910. Alaska Statute 38.05.035(e) authorizes the director of DNR's Division of Lands, acting with the consent of the Commissioner, to dispose of state land upon making a "written finding that the interests of the state will be best served."[5] Alaska Survival contends the Chase agricultural homestead disposal is unlawful because it is not in the state's best interests.
In reviewing DNR's substantive decision to dispose of Chase-area land, we apply the "reasonable basis" standard of *1286 review. This limited review is appropriate when a court considers "an administrative agency's decision where questions of fact and law involve agency expertise and/or broad policy considerations." State v. Weidner, 684 P.2d 103, 108 n. 4 (Alaska 1984) (citations omitted). Here, the decision to dispose of agricultural homesteads involves both policy considerations and agency expertise on a matter committed to DNR's discretion. We thus confine our review to determining "whether the decision was arbitrary, unreasonable or an abuse of discretion." North Slope Borough v. LeResche, 581 P.2d 1112, 1115 (Alaska 1978) (footnote omitted).
Alaska Survival first argues that DNR's disposal decision was arbitrary because the agency failed to adequately consider the potential effects on area water quality. However, the record shows that DNR officials specifically considered water quality when they designed the site plan and when they later decided to reduce parcel sizes. DNR also considered a Department of Environmental Conservation study concerning the effects of agricultural development on water quality as well as input from local residents offered during the numerous public hearings held to discuss plans for a Chase disposal. DNR concluded that water quality could be protected by retaining "buffer zones" of state land along streams and by requiring farmers to file and secure DNR approval of homestead conservation plans showing the location of proposed clearing and ground-breaking. See 11 AAC 67.155.
Based on this record we conclude that DNR did not act arbitrarily in determining water quality would be adequately protected.
We next address appellant's contention that the disposal violates the intent of the Homestead Act, AS 38.09, and contravenes the constitutional mandate that state land be developed "consistent with the public interest," Alaska Const. art. VIII, § 1. Alaska Survival asserts that because the disposal involves land with "severely limited agricultural uses," the resulting homesteads will not be economically feasible and clearing requirements will be minimal. In appellant's view, the transfer of such land for "free" constitutes an illegal waste of state resources.
Alaska Survival is correct that the disposal of parcels with little or no class II or III soils will result in minimal clearing requirements. See AS 38.09.050(a)(5).[6] However, this does not violate any statutory requirement and DNR could reasonably conclude that such a disposal also does not constitute a waste of state resources. First, even where clearing requirements are minimal, a homesteader still must mark the boundaries and survey the land, build a permanent dwelling and reside there. AS 38.09.050(a). Second, there is no statutory requirement for actual cultivation or harvesting, regardless of the soil quality. The legislature apparently recognized that agricultural homesteads might be located in marginal areas. In fact, the legislature in 1984 amended AS 38.09.050(a)(5) to reduce the clearing requirement on parcels with poor-quality soil. Ch. 152, § 53, SLA 1984. We therefore reject appellant's claim that the Chase disposal will result in a waste of public resources.
We turn now to Alaska Survival's argument that it was unreasonable and arbitrary for DNR to proceed with the lottery after learning that the soils data used to plan the disposal was seriously inaccurate. DNR had based both the original commercial agriculture proposal and the revised homestead proposal on the premise that the land contained predominantly class II and III soils, and therefore was suitable for farming. These soil classifications were specifically noted in the best interests finding. The new information received shortly before the scheduled lottery showed that the disposal area contained predominantly class IV or worse soils, which are generally *1287 suitable only for grazing and, in some cases, growing hay.
This new information obviously was significant: a special meeting of division directors was called to discuss the soils data and decide whether to alter the planned disposal. Alaska Survival asserts that the decision by DNR officials to proceed with the disposal was improper and that DNR should have postponed the lottery, sought additional public comment and seriously evaluated the new soils information, particularly the effect grazing might have on water quality and area wildlife. If the agency then decided to proceed, Alaska Survival contends DNR should have issued an amended best interests finding.
There is no explicit statutory requirement for an amended finding and/or additional public comment upon the discovery of new information. However, an agency's failure to consider an important factor will render its decision arbitrary. Southeast Alaska Conservation Council, Inc. v. State, 665 P.2d 544, 548-49 (Alaska 1983). Our role is to ensure that the agency has "taken a `hard look' at the salient problems" and has "genuinely engaged in reasoned decision making." Id. at 549 (quoting Leventhal, Environmental Decision Making and the Role of the Courts, 122 U.Pa.L.Rev. 509, 511) (emphasis in original). We have recognized that complete and accurate information is not a prerequisite for all disposal decisions. For example, in Hammond v. North Slope Borough, 645 P.2d 750 (Alaska 1982), we upheld the Commissioner of DNR's decision that the sale of oil and gas leases in the Beaufort Sea was in the state's best interests, despite some uncertainty about the impact on the subsistence lifestyle of the Inupiat Eskimos. Id. at 759-61.
Similarly, the federal courts, in construing the National Environmental Policy Act, have held that an agency has a continuing duty to gather and evaluate new information, but that a supplemental environmental impact statement (EIS) is not always required when new information becomes available. Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1023-24 (9th Cir.1980). The test is whether the agency evaluated the information and made a "reasoned determination" not to re-open the review process. Id. at 1024.
A question similar to the one before us was raised in State of California v. Watt, 683 F.2d 1253 (9th Cir.1982), rev'd on other grounds sub nom. Secretary of Interior v. California, 464 U.S. 312, 104 S. Ct. 656, 78 L. Ed. 2d 496 (1984). There, plaintiffs sought to enjoin a federal off-shore lease sale on the grounds that revised estimates of oil and gas reserves in the lease area required supplementation of the EIS. The new data showed twice the reserves as originally estimated. Id. at 1267. The court upheld the decision to proceed without supplementation after concluding that the Department of Interior had "carefully considered" and made public the new data. Id. at 1268.
Here, DNR division directors met to evaluate the new soils information and consider whether to proceed with the disposal. The director of the Division of Lands prepared a Decision Memorandum which analyzed the soils data and its effect on the Chase project. He concluded that while some of the disposal area was not suitable for traditional cultivation as originally planned, the land still was suitable for grazing and other "less intensive agricultural uses." The memorandum recommended that no changes be made in the disposal plan. The directors unanimously decided to go ahead with the lottery then scheduled for two weeks away and both deputy commissioners and a special assistant to the Commissioner concurred. Following the lottery, DNR informed the winners of the new soils data.
Given these facts, we are not prepared to say that DNR acted arbitrarily or unreasonably, although we consider it a very close question whether DNR gave the new soils information the kind of scrutiny necessary. Agency officials clearly considered the new soils information, then decided to proceed because, in their view, the *1288 project still contained enough land suitable for agricultural homesteads. The question whether land is suitable for such a purpose and whether the public interest is best served by such a disposal falls directly within the agency's area of expertise. We will not substitute our judgment. Hammond v. North Slope Borough, 645 P.2d at 758-59. We note, however, that it would have been preferable for DNR to have made public the new soils information prior to the lottery, and to have more extensively analyzed the information and its impact on the planned disposal.
In summary, we hold that there was a reasonable basis for DNR's finding that the Chase agricultural homestead disposal would be in the state's best interests, and that DNR's subsequent decision to proceed with the lottery after considering the revised soils data was not arbitrary.
B. Procedural Violations
We next address whether DNR's disposal decision was invalid due to procedural violations. To resolve this issue we must interpret certain statutes that govern the state's land planning and disposal process. Because interpretation of these statutes does not require the special expertise of the agency, we exercise our independent judgment to determine whether DNR complied with the statutory requirements in deciding to dispose of Chase III land. Moore v. State, 553 P.2d 8, 26, 33 (Alaska 1976); State v. Aleut Corp., 541 P.2d 730, 736 (Alaska 1975).
Alaska Survival asserts that DNR violated AS 38.04.065 by classifying Chase land for agricultural use before developing a regional land use plan. DNR adopted the Susitna Area Plan, a comprehensive regional plan that includes the Chase area, in April 1985, seven months after the lottery. Land included in the lottery was classified in two orders signed in 1980 and 1984. The first order is not challenged since it occurred while a statutory exception was in effect allowing land classification prior to regional planning.[7] However, Alaska Survival contends that the 1984 order, which classified 1,287 acres in the Chase area including 907 acres in the Chase III project,[8] violated AS 38.04.065. The statute provides in relevant part:
Land use planning and classification. (a) The commissioner shall, with local governmental and public involvement in accordance with AS 38.05.945, develop, maintain and, when appropriate, revise land use plans which provide, by regions or areas, for the use of the state-owned land.
... .
(c) As a basis for more detailed land use planning and classification, the commissioner shall develop regional land use plans for the use of all state land. These regional plans shall identify and delineate
(1) areas of settlement and settlement impact, where land must be classified for various private uses and for public recreation, open space, and other public uses desirable in and around settlement; and
(2) areas which must be retained in state ownership and planned and classified for various uses and purposes in accordance with AS 38.04.015.
(d) Official regional or area plans and subsequent amendments adopted by the commissioner after public and local governmental participation shall be signed and dated by the commissioner. After adoption of an official regional or area plan, land classifications shall be made in accordance with these official plans.
*1289 We discussed this statute in State v. Weidner, 684 P.2d 103 (Alaska 1984), and concluded that AS 38.04.065(d) "generally requires the development of [land] use plans before classification" of state lands. Id. at 107. We did not elaborate on this requirement because the land involved in Weidner was covered by a specific statutory exception, repealed in 1981, permitting classification prior to planning. Id. As explained below, however, the interpretation stated in Weidner is consistent with constitutional mandates and the legislature's overall approach to the management of state lands.
The framers of the Alaska Constitution placed a high value on the state's land resources. Moore v. State, 553 P.2d at 30. Article VIII, section 10 of the constitution provides: "No disposals or leases of state lands, or interests therein, shall be made without prior public notice and other safeguards of the public interest as may be prescribed by law."
In accordance with this provision, the first Alaska legislature enacted the Alaska Land Act, AS 38.05, to establish procedural safeguards for the management and disposal of state lands and the natural resources they contain. The legislature later added AS 38.04, setting forth state policy for the use and classification of state lands. Alaska Statute 38.04.005(a) provides:
In order to provide for maximum use of state land consistent with the public interest, it is the policy of the State of Alaska to plan and manage state-owned land to establish a balanced combination of land available for both public and private purposes. The choice of land best suited for public and private use shall be determined through the inventory, planning, and classification processes set out in AS 38.04.060-38.04.070.
(Emphasis added.) These referenced statutes require 1) an inventory of all state lands, 2) the preparation of regional land use plans based on consideration of a wide range of factors, and 3) the classification of state lands.
In our view, both the organization of the statutory scheme and the particular language of AS 38.04.065(c) and (d) express an unambiguous intent that regional planning precede land classifications and disposals. Subsection .065(c) specifically directs DNR to develop regional land use plans "[a]s a basis for more detailed land use planning and classification." Subsection.065(d) provides, in part: "After adoption of an official regional or area plan, land classifications shall be made in accordance with these official plans." To interpret these provisions to allow classification and disposal before regional planning defies logic. It makes little sense to require comprehensive regional planning after the relevant land use decisions already have been made, especially irrevocable disposal decisions.
DNR, however, suggests a different interpretation of AS 38.04.065(d). DNR contends the planning requirement may be met by a site-specific "land planning report" prepared in advance of a comprehensive regional land use plan. This interpretation is reflected in a regulation adopted by the department. See 11 AAC 55.030 (eff. Nov. 12, 1978; am Sept. 7, 1983). It permits classification of land based on a "brief, site-specific planning document prepared in the absence of an area or management plan" as long as the document considers certain factors identified in the statutory provision. 11 AAC 55.030(e). Relying on this regulation, DNR adopted a site-specific "land planning report" covering the 1,287 Chase acres included in the 1984 classification order.
We cannot accept the argument that this regulation properly implements AS 38.04.065. DNR is correct that the statute does not define "regions or areas" when it directs DNR to "develop ... land use plans which provide, by regions or areas, for the use of the state-owned land." AS 38.04.065(a). When read in its entirety, however, the statute's meaning is plain: it mandates a comprehensive, broad-scale planning process prior to site-specific planning and classification. For example, subsection *1290.065(c) specifies that regional land use plans be developed "[a]s a basis for more detailed land use planning and classification." DNR may be correct that the statute does not require plans on the scale of the Susitna Area Plan, which covers 15.8 million acres. However, it would be difficult to use a planning report covering only 1,287 acres as the basis for more detailed land use planning. We conclude that a regulation which permits land classification based on a planning document covering only 1,287 acres is inconsistent with the statutory scheme.
DNR argues that this interpretation is incorrect because the legislature did not intend, by enacting AS 38.04.065, to halt all state land disposals pending completion of regional plans. We agree that when the statute was enacted in 1978 as part of a land planning and disposal bill the legislature expressed its intent to accelerate the disposal of state lands.[9] However, the legislature recognized that in order to assure some immediate disposals it would need to temporarily relax the statutory planning requirements. Thus, the legislature enacted former AS 38.05.047(a)(5)(C)[10] to permit, for a limited time period, the classification of agricultural land without meeting the planning requirements of AS 38.04.065. If the legislature did not intend AS 38.04.065 to bar classifications in the absence of regional land use plans, this temporary statutory exception would have been unnecessary. The repeal of the exception in 1981 further indicates that the legislature intended future classifications to be based on regional plans.
For these reasons, we conclude that AS 38.04.065 requires regional planning to precede land classification, and that a regulation which permits classification based on a site-specific plan covering only 1,287 acres contravenes the language and intent of the statute. DNR's 1984 classification of Chase lands was therefore improper.
The next question is whether DNR's failure to engage in proper planning requires invalidation of the Chase disposal. DNR argues that since the regional plan is now complete and designates the Chase III area for agricultural homesteading, any planning violation is moot. In deciding this question we must consider whether DNR would have made the same decision concerning the Chase disposal if the agency had first developed a regional plan as required by AS 38.04.065. In other words, did the procedural violation have any real impact on DNR's substantive decision to proceed with the homestead disposal? For the reasons discussed below, we conclude that it did. We therefore reject DNR's mootness argument.
First, the record supports Alaska Survival's contention that the Susitna Area Plan (SAP) simply ratified, without comprehensive analysis, DNR's earlier decision to dispose of Chase agricultural land, and that the planners failed to address certain issues because of this litigation. In a document containing public comments on the draft plan and responses by DNR, several persons criticized the SAP's handling of the Chase area and claimed that the plan contained some factual errors. DNR responded: "The Chase III agricultural homestead disposal is presently the subject of a lawsuit by Alaska Survival. The issues raised above cannot be resolved until the outcome of the litigation is known... ."[11]
We also note that the SAP's designation of the 3,530-acre Chase III area for agricultural homesteading appears inconsistent *1291 with the plan's statement of overall management guidelines for agricultural lands. The guidelines state that blocks of 2,000 acres or more of agricultural lands "should be used primarily to support commercial farming under the state's standard agricultural land disposal (rather than under the homestead program... .)" (Emphasis added.) The guidelines further state that "[s]cattered, smaller parcels" should be considered for the agricultural homestead program. This inconsistency is a further indication that the plan simply ratified DNR's earlier decision to dispose of Chase lands as agricultural homesteads.
DNR's mootness argument also is invalid for a second reason. We are persuaded that the disclosure and public discussion of certain information in the SAP would have prompted closer consideration of alternative disposal areas. According to the SAP, the planning area includes approximately 400,000 acres of publicly owned cultivable soils in contiguous blocks large enough to support farming. Of these lands, the SAP identifies 26,120 acres in the planning region which are currently scheduled for state disposals. The Chase III land thus represents less than one-seventh of the state land in the region identified for agricultural disposal. If this information had been available prior to the Chase III classification and disposal, local residents (or even DNR planners) could have suggested alternative disposals with potentially less impact on area resources. Also, had the plan been completed and made public when the error regarding the quality of Chase soils was discovered, it may have spurred reconsideration to determine if one of the other areas identified for disposals would be better suited for agricultural homesteads.
In short, we believe that DNR's failure to develop a regional plan before classifying and disposing of the Chase III land was a serious procedural violation that may well have affected the agency's disposal decision. We also note that the state's mootness argument ignores one of the purposes of a regional planning process to allow for "meaningful participation" by local governments, state and federal agencies, adjacent landowners and the general public. AS 38.04.065(b)(8); see also AS 38.04.065(a) and (b)(2). Meaningful participation is thwarted where citizens lack key factual information, such as information in this case regarding other areas within the planning region specifically identified for agricultural disposals.
For these reasons, we conclude that DNR's adoption of a regional plan seven months after the Chase lottery did not cure the agency's prior violation of statutory planning requirements. We therefore hold that the Chase III disposal is invalid. We remand DNR's disposal decision to the agency for further consideration and public comment in view of the regional plan and any revisions deemed necessary to the plan.
Because we hold the disposal invalid due to the planning violation, we need not decide Alaska Survival's claim that a written finding that the homestead disposal was in the state's best interests was not timely made or provided to appellants upon request, as required by AS 38.05.035(e). On remand, when DNR reconsiders its decision in view of the SAP, the agency will have to make a new best interests finding if it decides to proceed with a disposal. If that occurs, DNR will be required to publicize the finding and provide an opportunity for meaningful public comment.[12]
*1292 C. Attorney's Fees
Alaska Survival and the individual appellants contend the trial court erred when it denied their status as public interest plaintiffs and ordered them to pay $10,420 in attorney's fees.[13] Because of our holding on the merits of this appeal, the state no longer is entitled to fees as the prevailing party. However, Alaska Survival's claimed status must still be examined since a prevailing public interest litigant is generally entitled to full reasonable attorney's fees rather than partial fees. Hunsicker v. Thompson, 717 P.2d 358, 359 (Alaska 1986).
In Oceanview Homeowners Association, Inc. v. Quadrant Construction and Engineering, we reiterated the four criteria for identifying public interest suits:
(1) whether the case is designed to effectuate strong public policies; (2) whether, if the plaintiff succeeds, numerous people will benefit from the lawsuit; (3) whether only a private party could be expected to bring the suit; and (4) whether the litigant claiming public interest status would lack sufficient economic incentive to bring the lawsuit if it did not involve issues of general importance.
680 P.2d 793, 799 (Alaska 1984) (citing Kenai Lumber Co. v. LeResche, 646 P.2d 215, 222-23 (Alaska 1982)).
The state does not dispute that this litigation satisfies the first three criteria. The state contends, however, that the appellants do not qualify as public interest litigants because they had a strong economic incentive to bring this lawsuit whether or not it involved issues of public importance. The state notes that appellants argued to DNR and the trial court that they are economically dependent on use of the land in the disposal area to gather firewood and house-building logs, and to hunt and fish for food. We conclude, however, that a more substantial financial interest is required before a litigant will be deemed to have an independent economic incentive to bring suit.[14]
In two analogous cases we recognized the public interest status of residents who challenged zoning decisions affecting their neighborhoods. The first case, Anchorage v. McCabe, 568 P.2d at 989-91, involved two homeowners who challenged the constitutionality of an ordinance and a city council decision permitting construction of two high-rises in their neighborhood. The second case, Oceanview Homeowners Association, 680 P.2d at 795, involved a group of homeowners who sued unsuccessfully to overturn a zoning board decision allowing continued use of a private airstrip near their homes. In concluding that the Oceanview plaintiffs were public interest litigants, we noted they had consistently emphasized health and safety rather than economic concerns. Id. at 799.
Here, no argument was made that the Chase disposal would result in economic injury by causing property values to decline. Instead, appellants emphasized concerns about contamination of water supplies, impact on area wildlife and the general effect that increased settlement would have on the quality of their subsistence lifestyle. While appellants stressed their dependency upon the use of state land in the disposal area for hunting, fishing, and wood gathering, they relied on these resources for personal rather than commercial purposes. This is not the type of substantial economic interest sufficient to bar a litigant from qualifying as a public interest plaintiff.
The superior court judgment is REVERSED and DNR's disposal decision is REMANDED to the agency for further consideration. The court is directed to recognize *1293 appellants' public interest status and award attorney's fees accordingly.
NOTES
[1] The language in former AS 38.05.035(a)(14) now appears in AS 38.05.035(e). See infra note 5.
[2] The SCS classification system takes into account soils and climatic conditions. Class I through IV soils are generally suitable for cultivation, although the recommended use in Alaska of class IV soils with steep slopes is hay cultivation and grazing; classes V through VII are suitable only for grazing.
[3] The new data was due in part to a 1983 revision of SCS guidelines for Alaska and also to inaccurate mapping that underestimated slope steepness, erosion potential and wetness conditions.
[4] The suit named as defendants the Department of Natural Resources, DNR Commissioner Esther C. Wunnicke, and Thomas Hawkins, director of DNR's Division of Forest, Land and Water Management.
[5] The best interests finding requirement formerly appeared in AS 38.05.035(a)(14). That section was repealed in 1984 and substantially the same language placed in AS 38.05.035(e). See ch. 152, §§ 20, 88, SLA 1984.
[6] AS 38.09.050(a)(5) requires a homesteader to clear and either put into production or prepare for cultivation "25 percent of the land classified for agricultural use or 50 percent of the land having Class II or III soils, whichever is less." (Emphasis added.)
[7] Former AS 38.05.047(a)(5)(C) was enacted by ch. 85, § 13, SLA 1979, and repealed by ch. 113, § 45, SLA 1981. It directed the commissioner of DNR, "[n]otwithstanding the provisions of AS 38.04," to classify, before September 1, 1980, all state lands in municipalities determined to be best suited for disposal for agricultural use. See State v. Weidner, 684 P.2d 103, 107 (Alaska 1984).
[8] The state asserts that the 1984 classification order affected only 280 acres in the Chase III disposal. However, our reading of the record indicates that 907 acres in the Chase project were covered by the 1984 classification, including 347 acres in the lottery disposal and 560 acres scheduled for a second phase offering.
[9] For example, one section of the bill required DNR to make available for disposal a minimum of 50,000 acres in 1979 and to propose similar disposals in subsequent years. Ch. 181, § 5, SLA 1978. That section, in former AS 38.04.020, has since been repealed.
[10] See supra note 7.
[11] The response document also contained a citizen's suggestion that the Chase management unit receive a detailed management plan. DNR responded: "the plan will recommend a management plan be done ... if it is determined that lots of important land use decisions remain to be made. This would be the case if, as a result of litigation on the Chase III ag [agricultural] homestead area, the project is halted entirely."
[12] Alaska Survival also contends that DNR violated statutory procedural requirements, see AS 38.04.020(j), in handling a nomination made by one of the individual appellants, Judy Price, to remove 35,000 acres of Chase-area land from the state's land disposal bank. This issue is not properly before us. DNR notified Price in January 1984 of the Commissioner's decision not to reclassify the nominated land as requested. Under Alaska Appellate Rule 602(a)(2) Price had 30 days to appeal the Commissioner's decision to the superior court. No filing occurred until September 1984, when appellants sued to challenge DNR's disposal decision and included the land bank nomination among several claims of error. We therefore decline to consider this issue. See Ballard v. Stich, 628 P.2d 918, 920 (Alaska 1981).
[13] Although the trial court apparently did not make a specific finding on the issue, implicit in the court's award of fees against Alaska Survival is the finding that this is not public interest litigation.
[14] See, e.g., Kenai Lumber Co. v. LeResche, 646 P.2d 215, 223 (Alaska 1982) (competing lumber company seeking commercially valuable timber denied public interest status); Mobil Oil Corp. v. Local Boundary Comm'n, 518 P.2d 92, 104 (Alaska 1974) (denial of public interest status proper where large sums at stake). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1301329/ | 768 N.W.2d 62 (2009)
2009 WI App 56
STATE
v.
PROCELL.[1]
No. 2006AP1978.
Court of Appeals of Wisconsin.
March 3, 2009.
Unpublished opinion. Affirmed.
NOTES
[1] Petition for Review Filed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318584/ | 179 Ga. App. 544 (1986)
346 S.E.2d 914
NATIONWIDE MUTUAL INSURANCE COMPANY
v.
WHITEN et al. WHITEN et al.
v.
MILLER et al.
71759, 71760.
Court of Appeals of Georgia.
Decided June 30, 1986.
Jonathan C. Peters, William D. Strickland, for appellant (case no. 71759).
Robert A. Falanga, for appellees.
Robert A. Falanga, for appellant (case no. 71760).
Malcolm S. Murray, for appellees.
McMURRAY, Presiding Judge.
This lawsuit arose out of an automobile collision which occurred on May 25, 1982. It was alleged that an automobile driven by plaintiff Robert Whiten was struck by an automobile negligently driven by defendant Larry Miller. Actual and general damages were sought by Robert Whiten against defendant. Josephine Whiten, wife of Robert Whiten, joined the lawsuit as a party plaintiff and sought damages for loss of consortium.
The Whitens were insured by Nationwide Mutual Insurance Company ("Nationwide"). The policy of insurance which was issued by Nationwide to the Whitens provided for uninsured motorist coverage. Because defendant Larry Miller was uninsured at the time of the collision, plaintiffs served Nationwide, their uninsured motorist carrier, with a copy of the complaint. Nationwide filed an answer to the complaint in its own name and it proceeded to defend the lawsuit. No answer was filed by defendant Larry Miller and he made no appearance in the case. Following discovery, the case proceeded to trial. The jury returned a verdict against plaintiff Josephine Whiten upon her claim for loss of consortium. However, a verdict was rendered in favor of plaintiff Robert Whiten for actual damages as follows: $6,492.54 (general damages), $1,336.62 (medical expenses) and $939.84 (loss of wages). The parties stipulated that the entire amount of medical expenses *545 and $400 of the lost wages awarded to plaintiff Robert Whiten should be written off in accordance with the Georgia Motor Vehicle Accident Reparations Act. OCGA § 33-34-3 (d) (1). See in this connection McGlohon v. Ogden, 251 Ga. 625 (308 SE2d 541). Judgment was entered accordingly. Thereupon, Nationwide moved for a new trial. The motion was denied and Nationwide appealed. A cross-appeal was filed by plaintiffs. Held:
1. During direct examination, plaintiff Robert Whiten testified that he and his wife visited a psychiatrist (actually, the practitioner was a psychologist) because they had encountered sexual problems as a result of Robert Whiten's injuries. Plaintiffs' counsel asked why plaintiffs only visited the psychiatrist on one or two occasions and plaintiff responded that he could not afford to return to him. Thereupon, counsel for Nationwide moved for a mistrial on the ground that plaintiffs prejudicially injected their economic status into the lawsuit. See Smith v. Satilla Pecan Orchard &c. Co., 152 Ga. 538 (3) (110 S.E. 303). The trial court overruled the motion for mistrial. It did not instruct the jury to disregard the statement of the witness. See in this connection Strother v. South Expressway Radio, 132 Ga. App. 771, 773 (209 SE2d 93). The trial court ruled, however, that Nationwide was entitled to cross-examine plaintiff Robert Whiten concerning his averment that he could not pay the specialist for services rendered. See in this regard Johnson v. Bryant, 178 Ga. App. 327 (343 SE2d 397). Nationwide sought no additional ruling by the court. Rather, Nationwide took up the gauntlet and questioned plaintiff at length concerning the availability to him of no-fault benefits.
In its first enumeration of error, Nationwide contends the trial court erred in failing to grant its motion for mistrial or, alternatively, by failing to take appropriate corrective action with regard to the prejudicial evidence. We disagree. The trial court did not abuse its broad discretion in refusing to grant a mistrial. See Georgia Power Co. v. Redman, 137 Ga. App. 427, 429 (3) (224 SE2d 477). In closing argument, counsel for Nationwide suggested to the jury that plaintiffs could have returned to the "psychiatrist" if they wanted to because the bills would have been paid by Nationwide. Thus, he asserted: "[T]hat is not why Mr. Whiten or Mrs. Whiten didn't go back to Dr. Clark, because they couldn't afford it. That statement was made in an attempt to gain your sympathy and to prejudice you in some way against this insurance company that has got this barrel full of Yankee money . . ." Under the circumstances of this case, we do not think the corrective action taken by the trial court was improper. See Johnson v. Bryant, 178 Ga. App. 327, supra. See also Georgia Power Co. v. Green, 158 Ga. App. 717, 718 (2) (282 SE2d 145) (by repeating and expanding upon improper remark during closing argument, counsel impliedly waived any objection). Nationwide's first enumeration of error *546 is without merit.
2. In his closing remarks to the jury, plaintiffs' counsel said: "You remember what I told you in my opening statement about Nationwide. Mr. Miller, if he is uninsured, Mr. Whiten has an opportunity to file a lawsuit against Mr. Miller and in the event that you all return a verdict, whatever that is, we will have to be paid by Nationwide and that is why they have made an appearance . . ." Thereupon, counsel for Nationwide interjected the following: "[Plaintiffs' counsel] has made a misstatement when he tells the jury that whatever verdict is returned against Mr. Miller has to be paid by Nationwide. That is a misstatement. That is outside of the evidence and it is very misleading . . ." Nationwide moved for a mistrial. It contended that plaintiffs' counsel invited the jury to render a large verdict because the tab would be paid by an insurance carrier. The trial court took the motion under advisement. It proceeded to instruct the jury that "It is for the jury to determine whether or not the argument of counsel is based upon the evidence that you have heard during the trial." No further instruction was given by the court. In his closing remarks counsel for Nationwide continued the argument set forth in Division 1 of this opinion. He stated: "Just unload on the insurance company. The only money they have is what the public pays them in the way of premiums. What you pay in Cobb County is based on the expenditures made in Cobb County and what the people in Gwinnett County pay is based on the loss ratio in Gwinnett County. If you want to go back and return a verdict just because it is an insurance company and because they have got a lot of money, all it is going to do is just cause insurance costs to go up again." After the jury returned its verdict, the trial court denied Nationwide's mistrial motion.
Under the facts and circumstances of this case, we cannot say the trial court abused its discretion in denying Nationwide's motion for mistrial. Assuming, arguendo, the remarks of plaintiffs' counsel were prejudicial, any objection to the remarks was waived impliedly when Nationwide's counsel made his closing comments. See Georgia Power Co. v. Green, 158 Ga. App. 717, 718 (2), supra.
3. Because the parties stipulated that medical expenses and lost wages should be reduced in accordance with the Georgia Motor Vehicle Accident Reparations Act, the trial court instructed the jury as follows: "If your verdict is one finding that the plaintiff Robert Whiten is entitled to medical expenses and lost wages, the Court instructs you at this time that you are to determine from the evidence the full amount of any lost wages or medical expenses that may have been incurred by the plaintiff as a result of the injury. That is, you are to disregard any testimony in the case in regard to any recovery that the plaintiff may have had from other collateral sources in regard to lost wages or medical expenses. I am instructing you, if you return *547 a verdict for medical expenses and lost wages to determine the full amount of lost wages and medical expenses and return that in the case, if you return a verdict for those items." The jury was given a verdict form which contained, inter alia, blank spaces for pain and suffering damages, medical expenses and lost wages. The jury returned a verdict in favor of plaintiff Robert Whiten for pain and suffering damages in the amount of $6,492.54. The verdict form indicated that plaintiff was not entitled to recover medical expenses or lost wages. After reviewing the verdict, the court inquired as to whether the jury intended to deny plaintiff a recovery for medical expenses and lost wages. The foreman responded: "It seems that the jury thought that all of that had been paid by the insurance company." Thereupon, the court stated: "The court instructed the jury to return a verdict to include those amounts even though they were paid. Did the jury not understand that instruction?" When the foreman replied that there was in fact a misunderstanding, the court continued: "I will ask you to return to the jury room and I instruct you that your verdict should include, if you found from the evidence that there were damages for medical expenses and damages for lost wages, that your verdict should include those amounts and should be set out for each of those items." Counsel for Nationwide objected to the fact that the trial court resubmitted the question of damages to the jury. The objection was overruled and the jury returned its verdict for general damages, medical expenses and lost wages.
Under the facts and circumstances of this case, we find no error. It was proper for the court to call the jury's attention to an evident mistake and to have the jury retire to correct the verdict. Blalock v. Waldrup, 84 Ga. 145 (2) (10 S.E. 622). See also Mitchell v. Langley, 143 Ga. 827 (2) (85 S.E. 1050). Moreover, contrary to Nationwide's contention, the trial court did not err by failing to instruct the jury that it could reduce the amount of general damages (which it had already found) when it returned to the jury room. General damages and special damages are separate and distinct types of damage. OCGA § 51-12-2. The recovery of one type of damage should have no effect upon the other.
4. Plaintiffs sought bad faith damages against Nationwide pursuant to OCGA § 33-7-11 (j). The trial court ruled that the bad faith claim was pursued properly in the action against the uninsured motorist. See McCall v. Allstate Ins. Co., 251 Ga. 869 (310 SE2d 513). However, the trial court held that the bad faith issue should be separated from the other claims brought by plaintiffs. Thus, the trial court determined that any adjudication of the bad faith claim would have to await the jury's verdict. When the jury returned its verdict in favor of Nationwide upon the loss of consortium claim brought by plaintiff Josephine Whiten, the trial court ruled that plaintiff's bad *548 faith claim failed as a matter of law. In the cross-appeal, it is only contended that the trial court erred in dismissing Robert Whiten's claim for bad faith. Error is not enumerated by the plaintiff wife as to the verdict in favor of defendant on plaintiff wife's loss of consortium claim. In a nutshell, the argument presented on appeal is that Robert Whiten's bad faith claim cannot be negated by an adverse ruling upon his wife's loss of consortium claim. We disagree.
A review of the record demonstrates that plaintiffs together presented a demand to Nationwide that their claims be settled in the aggregate for $5,500. Nationwide made a counteroffer which plaintiffs rejected. The case proceeded to trial and the jury rendered its verdict in favor of plaintiff husband and against plaintiff wife. We agree with the trial court that the jury's verdict conclusively demonstrates an absence of bad faith on the part of Nationwide. Since plaintiffs made their demand in the aggregate and since plaintiff wife's claim failed, it cannot be said that Nationwide refused to pay plaintiffs in bad faith.
Judgments affirmed. Banke, C. J., Deen, P. J., Birdsong, P. J., Pope and Benham, JJ., concur. Sognier, J., concurs in the judgment only. Carley and Beasley, JJ., concur in part and dissent in part.
CARLEY, Judge, concurring in part and dissenting in part.
I agree with the majority's resolution of the main appeal (Case No. 71759) and in the rationale therefor as set forth in Divisions 1, 2 and 3 of the majority opinion. However, because I believe that the trial court erred in failing to submit to the jury the question of plaintiff's entitlement to bad faith damages under OCGA § 33-7-11 (j), I must dissent to the affirmance of the cross-appeal. (Case No. 71760.) The majority holds that because the parties, in negotiating for a pretrial settlement, treated the husband's claim and the wife's claim collectively, the verdict against the wife's claim demanded a conclusion as a matter of law that the refusal of the insurer to pay the loss within 60 days was not in bad faith. There is absolutely no authority for the position taken by the majority. In the first place, this is not one of the cases coming under statutory provisions specifically conditioning a recovery of an extra amount upon the excess of a verdict over an offer. See, e.g., OCGA § 51-12-14. Furthermore, the plaintiff husband received a verdict in the amount of $6,492.54 general damages, $1,336.62 medical expenses, and $939.84 loss of wages. The amount of the verdict exceeded any demand by the plaintiffs and was greatly in excess of any offer made by the insurer. In any event, the record contains ample evidence from which a factfinder could determine that the insurer acted in bad faith in refusing to pay the claims made. Because I believe it cannot be said as a matter of law that plaintiff-husband is not entitled to bad faith damages, I must dissent to that portion of the majority opinion.
*549 I am authorized to state that Judge Beasley joins in this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318799/ | 677 S.E.2d 325 (2009)
OIL-DRI CORPORATION OF GEORGIA
v.
THOMPSON.
No. A08A2360.
Court of Appeals of Georgia.
March 10, 2009.
Reconsideration Denied April 10, 2009.
*326 Alexander & Vann, John T. Holt, Thomasville, for appellant.
Bateman & Harden, Frederick L. Bateman, Jr., for appellee.
ADAMS, Judge.
At issue is whether a mineral lease terminated when Oil-Dri Corporation of Georgia, the lessee mining company, ceased both mining operations on the property and royalty payments under the lease. The trial court concluded that the lease terminated effective April 1, 2004, and granted partial summary judgment to the lessor, Jeraldine R. Bulloch Thompson, on her declaratory judgment claim. Oil-Dri appeals, and we reverse because we find that the parties did not intend for the mineral lease to terminate under these conditions without notice and an opportunity to cure.
To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. OCGA § 9-11-56(c); Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Supchak v. Pruitt, 232 Ga.App. 680, 682(1), 503 S.E.2d 581 (1998).
So viewed, the evidence shows that Oil-Dri, as lessee, and Thompson, as lessor, entered into a mineral lease, dated January 12, 1977, and amended as of January 1, 2000, giving Oil-Dri the right to mine and remove minerals from certain of Thompson's real property. In December 2005, Thompson notified Oil-Dri that she considered the lease to be terminated because from March 2004 until that time Oil-Dri had not mined the property or made minimum royalty payments. Oil-Dri responded that it interpreted the lease to allow it to calculate the minimum royalty payment due for the previous 21 months, remit such payment, and consider the lease to be in full force and effect. Consistent with this position, Oil-Dri tendered the royalty payments to Thompson. Thompson maintains, and Oil-Dri does not dispute, that she *327 has refused to accept and negotiate the tendered payment.
On November 1, 2006, Thompson filed a complaint for declaratory relief, equitable relief, and breach of contract asking that the trial court declare the lease to be terminated and claiming, among other things, that Oil-Dri used Thompson's property for its own benefit without compensation after March 2004. Thompson filed a motion for partial summary judgment asking that the trial court determine as a matter of law that the lease was terminated when Oil-Dri stopped making minimum monthly payments. The trial court granted Thompson's motion, concluding that the lease terminated effective April 1, 2004.
The underlying facts are generally undisputed and resolution of this dispute depends upon the correct interpretation of the lease. "The construction of a contract is a matter for the courts." (Footnote omitted.) Danos v. Thompson, 272 Ga.App. 69, 71(1), 611 S.E.2d 678 (2005).
In this State, contract construction involves three steps. First, is the language ambiguous? If not, the court enforces the contract. If so, the court next applies the rules of contract construction to resolve the ambiguity. If the ambiguity cannot be resolved, in the last step a jury must decide what the parties intended and what the ambiguous language means.
Wilkie v. 36747, LLC, 294 Ga.App. 179, 181(1), 669 S.E.2d 155 (2008).
Oil-Dri is required to pay Thompson compensation under the lease. On the first day of every month, Oil-Dri "shall pay" a "minimum monthly royalty" of $200. Not later than the 20th day of each month, Oil-Dri is required to pay Thompson for minerals removed from the property the previous month in an amount based on the tonnage removed and the date mining commenced. The minimum monthly payment is applied against any sums due on account of the minerals removed from the property.
The lease does not have a scheduled termination date. The lease provides: "This lease shall be considered in force and the rights and privileges granted shall remain in force so long as the Lessee shall continue to mine said minerals or pay the minimum rental or royalty agreed upon." The lease also provides that Oil-Dri may at any time abandon the premises "and this lease to be thenceforth null and void" upon sixty days' notice to Thompson. The amendment to the lease, entered into as of January 1, 2000, contemplates an outside date under which the property could be mined: "Lessee agrees to complete the mining of the subject property within six (6) years after the effective date of this Amendment."
The lease contains a provision addressing the consequences of Oil-Dri's failure to pay royalties:
On failure to pay the rental[1] or royalty due after thirty days' written notice by registered mail to Lessee to pay the same, the Lessor may at his option declare this lease forfeited, and may re-enter and take possession of the premises, and this agreement shall be thenceforth at an end, except as to the collection of rentals then due; the Lessee to have the right to remove all machinery, fixtures, buildings and improvements placed or erected by Lessee upon said premises after payment of said rental. Before any forfeiture shall be attempted for any other cause, Lessor shall give Lessee sixty days' notice in writing by registered mail, stating the cause, in order that Lessee may remove the cause if it exists.
The lease further contemplates that Oil-Dri's right to mine is in its sole discretion:
Lessee shall not at any time be under any obligation to commence or continue any mining or other operations, it being understood that Lessee reserves the right to commence, cease and resume mining or other operations permitted to be carried on by Lessee hereunder as Lessee, from time to time, chooses in Lessee's sole and exclusive direction.
*328 Viewing the lease as a whole, we conclude that the parties did not intend that the lease be terminated upon Oil-Dri's failure to mine the property and pay minimum rent. See Tachdjian v. Phillips, 256 Ga.App. 166, 170, 568 S.E.2d 64 (2002) ("[t]he law favors a construction that will uphold the contract as a whole, and the whole contract should be looked to in arriving at the construction of any part"). It is true that the lease provides that it "shall be considered in force and the rights and privileges granted shall remain in force so long as" Oil-Dri mines the property or makes the minimum payments. This language implies that the opposite is true as wellthe lease would not remain "in force" if Oil-Dri neither mined the property nor made the minimum payments, as was the case here. But if this provision was intended to allow Oil-Dri to unilaterally terminate the lease, as Thompson suggests, then it is inconsistent with the lease provision allowing Oil-Dri the right at any time "to abandon said premises and this lease to be thenceforth null and void," other than as to unpaid royalties, but only upon 60 days' written notice. See id. ("[i]t is axiomatic that we should avoid any construction that renders portions of the contract language meaningless") (citation and punctuation omitted).
Furthermore, forfeitures are not favored by the courts. See King Indus. Realty v. Rich, 224 Ga.App. 629, 631(3), 481 S.E.2d 861 (1997). The lease does not expressly provide for termination or forfeiture of the lease upon Oil-Dri's failure to mine and make the minimum royalty payment. See Fulton County v. Collum Properties, 193 Ga.App. 774, 776(1), 388 S.E.2d 916 (1989) (where "there are no express words of defeasance, forfeiture, or reversion, the words employed will be construed as words of covenant, and not words of condition; and the remedy for a breach thereof by one having the right to enforce the same would be an action thereon for damages, and not a forfeiture of the estate (or usufruct) for condition broken") (citation and punctuation omitted;). Additionally, the lease specifies that it is the "rights and privileges granted" that remain in force "so long as the Lessee shall continue to mine said minerals or pay the minimum rental or royalty agreed upon." It does not speak to a suspension of Oil-Dri's obligations, which include the lease requirement that it "shall pay" the minimum monthly royalty.
We conclude that the lease provision which controls here is the one which specifically addresses unpaid royalties and expressly contemplates Thompson's right to declare a forfeiture. This provision includes notice and a right to cure. Only upon "failure to pay the rental or royalty due after thirty days' written notice by registered mail to [Oil-Dri] to pay the same" (emphasis supplied) may Thompson declare the lease forfeited. If the notice Thompson gave Oil-Dri is deemed in full compliance with the lease, then Oil-Dri was afforded the right to cure and the record does not show that its tender of unpaid royalty payments was either insufficient in amount or untimely. If Thompson's notice was simply to inform Oil-Dri that the lease had been previously terminated, which the notice appears to be, then the notice had no effect. See, e.g., Dude, Inc. v. Foamex, L.P., 269 Ga.App. 909, 605 S.E.2d 459 (2004) (default under terms of lease contemplated notice and additional cure period, notwithstanding breach). Rather, the undisputed facts fail to show that the lease had been previously terminated as Thompson asserts. It follows that the trial court erred in granting partial summary judgment to Thompson.
Judgment reversed.
SMITH, P.J., and MIKELL, J., concur.
NOTES
[1] There is no payment contemplated by the lease that is specifically designated as "rent" or "rental" payments. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318719/ | 230 S.C. 55 (1956)
94 S.E.2d 57
Appeal of R.B. PASLAY.
In Re FLORENCE TURNER, Collie Gray, Moses Gray, Habard Gray, and David Gray, Petitioners-Respondents,
v.
LILLIE BYARS, Willie Gray, Spencer Gray, Ollie Gray, Pleas Galloway, Eunice Williams, Individually and as representatives of all that class of heirs, known and unknown, of Lillie Gray Howard, deceased, including children of deceased brothers and sisters of Lillie Gray Howard, and all other heirs of Lillie Gray Howard, deceased, Defendants.
17199
Supreme Court of South Carolina.
August 9, 1956.
*56 Messrs. Paslay & Paslay, of Spartanburg, for Appellant.
Shannon Henson, Esq., of Spartanburg, for Respondents.
August 9, 1956.
STUKES, Chief Justice.
This is an action for partition in which a lot of land in Spartanburg was sold by the Master on salesday in February, *57 1956, in the usual and customary manner and pursuant to decree of the court. When the Master offered the property after regular advertisement and during the usual hours of sale, appellant bid $450.00. There was no other bid and the property was struck off to appellant who is described in respondents' brief as "a stranger to the original suit." During the afternon of the same day restraining order of the resident Circuit Judge was served upon appellant and upon the Master whereby the latter was restrained and enjoined from delivering deed of the property in accordance with the sale, and appellant was required to show cause on February 20, why the order should not be made permanent and the property again offered for sale by the Master.
The restraining order and rule to show cause were obtained upon verified petition of the respondents which set forth the facts stated above and that petitioners were prepared, through their attorney, to bid $1,000.00 or more for the property, which is its worth, and, quoting from the petition, the attorney "made every reasonable effort to attend the sale, but due to mechanical failure of his automobile at a distance from the place of sale, he was unable to arrive at the place of sale before 11:25 A.M. on the day of sale." It was further alleged in the petition that $450.00 is a grossly inadequate price for the property, which has a rental value of at least $30.00 per month, and consummation of the sale would result in irreparable loss to the owners of the property. Appellant and the Master made separate returns to the rule in which the regularity of the sale was set forth, and discharge of the rule and dissolution of the injunction were prayed.
Upon hearing the returns to the rule it was recited in the order of the court that the petitioners desired to submit testimony as to the value of the property upon the issue of the adequacy of the bid, and the matter was referred to the Master for the purpose of taking and reporting testimony as to the value of the property and the adequacy of the sale price.
*58 The appeal is from the refusal of the court to adjudge the returns to the rule sufficient and dissolve the order enjoining the Master from making deed to the purchaser-appellant upon his compliance with the bid, and from the contrary order of reference.
The explanation of the failure of counsel to attend the sale, which is quoted above, is manifestly insufficient to set the sale aside. The function of judicial sales would be seriously impaired if persons claiming to have been intended bidders, or attorneys or other representatives of them, were heard to say that their means of transportation failed en route. Public interest and precedent dictate the fostering of the stability of judicial sales. Wingard v. Hennessee, 206 S.C. 159, 33 S.E. (2d) 390. Counsel did not pursue this point in his brief on appeal, and we need not labor it.
There is therefore left in the case only the attack upon the validity of the sale upon the ground of inadequacy of consideration that the property is worth $1,000.00 or more, and the successful bid was $450.00; and it is well settled that mere inadequacy of price (unless it shock the conscience of the court) will not vitiate a judicial sale, in the absence of other factors for which the selling officer or the successful bidder was at least in part responsible, or participated. It is not contended that any such factor is present in this case; and the disparity between the sales price and the value of the property, as alleged in the petition, does not shock the conscience of the court. Some of our prior decisions, which sustain our conclusion, will be reviewed.
The question in Young v. Teague, 1830, Bailey Eq., 13, was whether a partition sale should be set aside upon a showing that one of the heirs was prevented by mistake from entering a bid of $600.00 more than the successful bid of $1,008.00, for which the land was struck off to an outsider, who was the highest bidder. The mistake was that the contesting heir had requested her counsel to bid for her to the *59 amount of the appraised value of the land, which he said he would have done but thought that the last bid was by the heir's son. However, the heir was present and instructed her son to cease bidding. It was concluded that the heir and her son had simply, quoting, "neglected their own interests, and now wish the Court to do for them what they ought to have done for themselves." Contrary decree of Chancellor De Saussure was reversed.
The syllabus in Coleman v. Bank of Hamburg, 1848, 2 Strob. Eq. 285, is: "Where unfair means have not been employed to prevent competition at sheriff's sales, inadequacy of price, however great, is no ground for setting them aside." Land was sold under execution upon a bid of one dollar, subject to mortgage indebtedness of about $1,500.00 which was announced at the sale. In his circuit decree, Chancellor Dunkin said that he was well satisfied that the sale price of the equity of redemption was less than its value, but no witness attributed improper conduct at the sale to the purchaser, and inadequacy of price will not vitiate a sheriff's sale. One of the grounds of appeal was that the land, which was purchased for one dollar, subject to the mortgage, was proved to be worth five or six thousand dollars. The appeal was dismissed by opinion by Chancellor Dargan, in the course of which it was said: "It is settled that where unfair means have not been employed to prevent competition at sheriff's sales, inadequacy of price, however great, is no ground for setting them aside. Whether wise or not, this is the law of South Carolina."
Writing the opinion of the court upon appeal of Ramsay v. Sims, 1866, 12 Rich. Eq. 430, Chancellor Dunkin again said: "Mere inadequacy of price, however startling, in the absence of all fraud, will afford no ground to impeach his purchase (at sheriff's sale)." Robinson v. Amateur Association, 1880, 14 S.C. 148, involved a sale in foreclosure under power contained in the mortgage. The property was sold at public auction for $400.00 and the purchaser later offered the property at auction and obtained bid of $850.00. One of the *60 contentions of invalidity of the foreclosure sale was inadequacy of price, which was proved by the subsequent sale at more than double the price. The contention was overruled, and the court said: "When a public sale is open and fair, in all respects free from fraud, mere inadequacy of price is not sufficient to set aside a sale, unless the inadequacy is such as to furnish evidence of fraud upon the part of the mortgagee, which is not alleged here."
At a foreclosure sale of a tract of land in Colleton County, in Ex parte Alexander, 35 S.C. 409, 14 S.E. 854, 856, the property sold for ten dollars. The plaintiff in the foreclosure action vainly opposed confirmation of the sale by the Master, which was affirmed upon appeal in opinion by Chief Justice McIver. The plaintiff contended that the advertisement was insufficient (which was overruled) and he was thereby surprised and prevented from bidding the amount of the mortgage debt, as he intended; apparently he was not present at the sale. The opinion concluded as follows: "If, then, there is no surprise, the fact that the land brought at the sale a very inadequate price affords no ground for relief; for it is well settled that that alone affords no ground for assailing the validity of a public sale. There is no allegation, and certainly no proof, that there was the slightest fraud or concealment on the part either of the Master or the purchaser, but, on the contrary, the testimony shows that the sale was conducted fairly; and, while we may regret that appellant has lost the opportunity of saving his debt by bidding at the sale, we cannot see that either the Master or the purchaser contributed to such loss.
Ex parte Cooley, 69 S.C. 143, 48 S.E. 92, 95, was an action of foreclosure of mortgages of several tracts of land which were sold separately. The mortgagor and his brother bid in three of the tracts and failed to comply and upon resale they sold for much lesser amounts, whereby the sale yielded less than the first mortgage indebtedness. Relying on the bidding upon the other tracts, the first mortgagee permitted the junior mortgagee to bid in the remaining tract *61 at what was claimed to be less than half of its value. The circuit court set the sale aside upon a contended irregularity, but upon appeal the decree was reversed and the sale was confirmed. This court there said, omitting citations, "It is not sufficient ground for setting aside a judicial sale that one of the parties interested intended to bid higher, but neglected to do so, or was prevented by a mistake at the time of the sale, if neither the officer making the sale nor the purchaser contributed to the mistake, and the sale was fair and regularly conducted. * * * Where unfair means have not been employed to prevent competition at a judicial sale, mere inadequacy of price is no ground for setting it aside. * * * If the inadequacy of price is so gross as to shock the conscience, a court of equity would doubtless seize upon other circumstances impeaching the fairness of the transaction as a cause for vacating it. * * * But the circumstances impeaching the fairness of the transaction should relate to the conduct of the officer making the sale, as in Farr v. Simms, Rich. Eq. Cas. 122, or to the conduct of the purchaser participating in the attempt to stifle competition or affected with notice thereof * * *."
In Farrow v. Farrow, 88 S.C. 333, 70 S.E. 459, 461, the court equally divided so it is not a binding authority but it is cited because the facts are so similar to those here and because it accords in result with the rule of our other decisions. The sale was in the probate court in aid of assets and the widow of decedent, who was the administratrix, and her minor children contested confirmation of the sale of 76 acres of land (sixty under cultivation and buildings worth $1,200.00) near Fountain Inn to the high bidder for $1,275.00. The widow intended to bid on the property, which she testified was worth much more, and attended the sale for the purpose; but she tired during prior sales and went to rest temporarily in the office of the probate judge. Her brother and son went for her when the sale of her property was imminent but when she reached the courthouse steps it had just been concluded. The mortgagee had bid enough to cover *62 his mortgage, $1,250.00, which an outsider raised to $1,275.00, and the land was knocked down to him. The probate judge found upon evidence that the price was grossly inadequate whereby he ordered it resold. Upon appeal the circuit judge reversed and his decree was affirmed upon equal division of this court, as stated. In opinion for affirmance, Mr. Justice Hydrick held that the conduct of the widow, her brother and son, was negligent and presented no ground for relief. Negligence of an intending bidder will not prevent confirmation of a judicial sale. We quote from the opinion:
"The policy of the law is to sustain judicial sales when fairly made. Under our decisions, when the auctioneer's hammer falls at such a sale, and the bid thereby accepted has been entered in the book, which the officer making the sale is required by law to keep, a valid contract is made. The purchaser thereby makes himself a party to the cause, and may, except when there is fraud, misrepresentation, mistake, or other circumstances of unfairness in the sale, or a defect in the title, be compelled by the order of the court to perform his contract. Justice to the bidder requires that, in the absence of any such circumstances, he should have the benefit of his contract. It should be mutual. Any other course would make the rights of the purchasers at such sales so uncertain that it would tend to discourage bidding at them a result so much more injurious in its consequences that it overbalances the possible injury resulting in a few isolated cases by a firm adherence to settled principles."
McLean v. Crouch, 99 S.C. 118, 82 S.E. 988, involved the judicial sale of an undivided one half interest in twenty-five acres of land in the town of Prosperity, which was bid off for $300.00. The master's report, which was confirmed by the circuit court, contained the finding that inadequate consideration is not sufficient to set aside a public sale under order of the court. A ground of appeal was that the uncontradicted testimony was that the value of the property was at least ten times the bid price. The sale was upheld and the *63 judgment affirmed. Corporate stock was the subject of a receiver's sale at public auction under order of the Court in Courtenay Mfg. Co. v. Issaqueena Mills, 179 S.C. 480, 184 S.E. 849, 850; inadequacy of price was urged against confirmation of the sale, which however was confirmed, and this court said: "The authorities in this state are uniform in holding that inadequate consideration, standing alone, is not sufficient to set aside a deed made at a public sale under an order of the court." To the same effect is Wooten v. Seanch, 187 S.C. 219, 196 S.E. 877, which was a foreclosure sale of real estate at which the mortgagee was the high bidder. In Howell v. Gibson, 208 S.C. 19, 37 S.E. (2d) 271, the above quotation from the Issaqueena case was repeated and reaffirmed. Partition sale which was attacked upon the ground of inadequacy of sales price was upheld in Brownlee v. Miller, 208 S.C. 252, 37 S.E. (2d) 658, 662, and it was said: "And even a grossly inadequate bid standing alone is insufficient to set aside a judicial sale in this state, unless it is so gross as to shock the conscience of the court."
Foreclosure sale of an automobile was set aside in Henry v. Blakely, 216 S.C. 13, 56 S.E. (2d) 581, 583, where there was misunderstanding, between the selling officer and counsel for a prospective bidder, as to the place of sale, and inadequate price. The opinion contains the following: "As has been said time and again in cases involving the setting aside of judicial sales, it is the policy of the Courts to uphold such sales when regularly made, and when it can be done without violating principle or doing injustice; and that mere inadequacy of price, unaccompanied by other circumstances which would invoke the exercise of the Court's discretion is not sufficient, unless, perhaps, it is so great as to raise a presumption of fraud or to shock the conscience of the Court. * * * While as stated above, that the mere inadequacy of price is not sufficient ground for setting aside a judicial sale, yet, when such inadequacy of price is the result of the act of the officer selling the property, which act could not have been reasonably anticipated by the party for whose *64 benefit the property was being sold, then such party should have relief at the hands of the Court by setting aside the sale."
Several of our above decisions were cited by District Judge Wyche in his decree in Raleigh & C.R. Co. v. Baltimore Nat. Bank, D.C., 41 F. Supp. 599, 601, where Master's sale of the assets of an insolvent railroad company was confirmed at the bid price of $66,900.00. Contestants offered to raise the bid, $8,100.00 and $10,100.00, respectively, claiming insufficient time and opportunity to satisfy themselves before the sale of the soundness of the title to the property. There was, however, competition in the bidding. The following is from the decree:
"Concerning judicial sales it has been well-settled that: When a sale of property is decreed by a court of equity as result of litigation, it is the purpose of the law that it shall be final; to assure reliance upon such sales and induce biddings, no sale should be set aside for trifling reasons or on account of matters which ought to have been attended to by the complaining party prior thereto; * * *. If the inadequacy of price is so gross as to shock the conscience, a Court of Equity would doubtless seize upon other circumstances impeaching the fairness of the transaction as a cause for vacating it. [Citations.] But the circumstances impeaching the fairness of the transaction should relate to the conduct of the officer making the sale, or to the conduct of the purchaser participating, in the attempt to stifle competition, chill the bidding or to take any other undue or unfair advantage."
The respondents in the case sub judice moved in this court to dismiss the appeal upon the ground that the orders of the circuit court are not appealable.
Appeal lay from the restraining order or temporary injunction. Section 15-123(4) of the code of 1952 authorizes appeal from, quoting, "An interlocutory order or decree in a court of common pleas granting, continuing, modifying or refusing an injunction * * *." Williams & Co. v. Jones, *65 62 S.C. 472, 40 S.E. 881; Lamar v. Croft, 73 S.C. 407, 53 S.E. 540; Lyles v. Williams, 96 S.C. 290, 80 S.E. 470, 474. Respondents cite Garlington v. Copeland, 1886, 25 S.C. 41; however, it antedates the enactment of the quoted provision of the code. See Act No. 358 of the Acts of 1901, 23 Stat. 623.
We have found that the restraining order or injunction was improvidently issued; there was no merit in the petition and the returns should have been adjudged sufficient and the petition dismissed. It follows that it was error to refer the matter to the Master.
The orders of the circuit court are reversed.
OXNER, LEGGE and MOSS, JJ., concur.
TAYLOR, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312872/ | RUDOLPH CONTRERAS, United States District Judge *103DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENTI. INTRODUCTIONThe Indian Self-Determination and Education Assistance Act ("ISDEAA"), 25 U.S.C. §§ 5301 - 5423, authorizes the federal government and Indian tribes to enter into contracts that permit the tribes to provide to their members federally funded services that the government would have otherwise provided itself. Pursuant to the ISDEAA, Plaintiff in this case, the Seminole Tribe of Florida, has for years contracted with the Secretary of Health and Human Services ("HHS") so that the Tribe may operate its own health program with federal dollars. For fiscal year 2018, the Tribe and the Secretary were able to reach an agreement on the vast majority of federal funding that would be transferred to the Tribe in support of this health program. But the parties were not able to agree on one category of funds. The Tribe therefore brought this lawsuit, asking the Court to compel the Secretary to accept the Tribe's final offer. Presently before the Court are the parties' cross-motions for summary judgment. As explained below, the Court denies both of these motions, because there remain significant factual issues that the parties have not yet addressed.II. BACKGROUNDA. Statutory and Regulatory BackgroundCongress passed the ISDEAA in 1975 in recognition of the right of Indian tribes to self-govern. Pub. L. No. 93-638, § 3, 88 Stat. 2203, 2203-04 (1975); see also 25 U.S.C. § 5302(a). The Act gives tribes the option of entering into "self-determination contracts" with the Secretary of HHS and the Secretary of Interior, under which the tribes become authorized to provide services to their members that otherwise would have been provided by the federal government-like education, law enforcement, or healthcare. See 25 U.S.C. § 5321(a)(1). Consistent with its broader purpose, the ISDEAA limits the government's discretion to deny tribes the ability to enter into a self-determination contract. After a willing tribe submits "a proposal" for such a contract, the relevant Secretary must approve the proposal within ninety days, unless he "provides written notification to the applicant" of "a specific finding that clearly demonstrates that" at least one of five enumerated grounds for rejection applies. Id. § 5321(a)(2).Among those grounds for rejection is the Secretary's conclusion that "the amount of funds proposed under the" tribe's submission "is in excess of the applicable funding level for the contract." Id. § 5321(a)(2)(D). The "applicable funding level," the ISDEAA explains, is made up of two general categories of money. The first category is what is often referred to as "the Secretarial amount," meaning the amount that "the appropriate Secretary would have otherwise provided for the operation of the programs ... for the period *104covered by the contract." Id. § 5325(a)(1). By requiring that the federal government provide no less than this amount, the ISDEAA ensures that the tribes receive funding equal to what the government would have spent if it provided the services at issue itself. Id.On top of this base amount, however, the Secretary must also provide a second category of funds: "contract support costs" ("CSCs"). Id. § 5325(a)(2). These are "the reasonable costs for activities which must be carried on by a tribal organization as a contractor to ensure compliance with the terms of the contract and prudent management, but which ... normally are not carried on by the respective Secretary in his direct operation of the program ... or ... are provided by the Secretary in support of the contracted program from resources other than those under contract." Id.CSCs in turn comprise two sub-categories of funds. One is direct CSCs, which are, unsurprisingly, the "direct program expenses for the operation of the Federal program that is the subject of the contract," id. § 5325(a)(3)(A)(i), like unemployment taxes or workers compensation payments. The other category is indirect CSCs, which are "any additional administrative or other expense[s] related to the overhead incurred by the tribal contractor in connection with the operation of the Federal program," id. § 5325(a)(3)(A)(ii). Indirect CSCs generally make up the majority of CSCs; they can include expenses for facilities, equipment, auditing, and other financial management services. See Cherokee Nation of Okla. v. Leavitt , 543 U.S. 631, 635, 125 S.Ct. 1172, 161 L.Ed.2d 66 (2005).The ISDEAA provides no specific procedure for determining the amount of indirect CSCs a tribal contractor will incur related to a particular program in a given year. The Act merely states, as noted above, that the costs must be "reasonable ... to ensure compliance with the terms of the contract and prudent management," 25 U.S.C. § 5325(a)(2), and that they cannot duplicate any funding already included in the Secretarial amount, id. § 5325(a)(3)(A). Normally, however, the CSC amount attributed to a particular program is calculated by applying an "indirect cost rate" to a base amount of funds already owed to the tribe. See 2 C.F.R. pt. 200, app. VII, § C; Cherokee Nation , 543 U.S. at 635, 125 S.Ct. 1172. The same indirect cost rate is generally used across all of the tribal contractor's federal programs for two to four years, see 2 C.F.R. pt. 200, app. VII, §§ B.9, C.2.a, and it is determined through negotiations with the Interior Business Center ("IBC"), located within the Department of Interior.These negotiations are generally guided by uniform cost principles issued by the Office of Management and Budget ("OMB") that are applicable to all federal awards to non-federal entities-not just to Indian tribes. See generally 2 C.F.R. pt. 200; see also 2 C.F.R. § 200.100. Those principles instruct that the process begins by taking the tribe's total costs associated with all federal programs for a fiscal year and classifying them as either direct or indirect. See 2 C.F.R. pt. 200, app. VII, §§ B.9, E.2. The indirect costs are then divided by a "distribution base," which is usually either the total direct costs of all federal programs contracted to the tribe, or the total salaries and wages associated with all federal programs. See 2 C.F.R. pt. 200, app. VII, § C.2.a, c. The product of that division equation is the indirect cost rate-"the percentage which the total amount of allowable indirect costs bears to the base selected." Id. § C.2.a.Once the IBC and the tribal contractor agree on an indirect cost rate, they execute an "Indirect Cost Negotiation Agreement."*105Pl.'s Mot. for Summ. J., Ex. C, ECF No. 9-3. It is then presumed that the agreed-upon rate will be used to allocate indirect costs to all of the tribal organization's individual federal contracts-by multiplying the rate by the base amount attributable to the individual contract at issue. Id. ; 2 C.F.R. pt. 200, app. VII, § E.1. Thus, if, for example, the rate was determined using a distribution base of total direct costs for all federal programs, the indirect CSCs for a particular program would be calculated by applying the rate to the total direct costs for that particular program. See 2 C.F.R. pt. 200, app VII, §§ B.1, C.2.a. Because total direct costs are certain to be a larger amount than salaries and wages (which are themselves a portion of total direct costs), indirect cost rates pegged to total direct costs are likely to be lower percentages than those pegged to salaries and wages. But everything should roughly even out when the rate is multiplied by the corresponding base amount: For total direct cost rates, a relatively low rate would be applied to a relatively high base amount. For salary and wage rates, a somewhat higher rate would be applied to a somewhat lower base amount.A hypothetical example may make this easier to understand. Take a fictional tribe with multiple federal contracts, which together represent $ 10 million in total direct costs, of which $ 8 million is spent on salaries and wages. On top of these costs, the tribe also estimates $ 2 million in indirect costs associated with all of its federal programs. To calculate the tribe's indirect cost rate, it would first choose the distribution base: either the total direct costs of $ 10 million or the salaries and wages amount of $ 8 million. It would then divide the $ 2 million indirect costs number by the chosen distribution base. So if the base was total direct costs, the resulting indirect cost rate would be 2 million divided by 10 million-.2, or 20 percent. And if the base was salaries and wages, the rate would be 2 million divided by 8 million-.25, or 25 percent.Once one of these rates has been calculated, it is then used to allocate the indirect costs across the fictional tribe's federal awards. Assume that the tribe's federal health program has total direct costs of $ 5 million, of which $ 4 million are salaries and wages. If the rate had been determined using total direct costs, the 20 percent number calculated above would be applied to $ 5 million, producing an indirect cost award for the health program of $ 1 million. If, on the other hand, the rate had been determined using salaries and wages, the 25 percent number from above would be applied to $ 4 million, producing the same indirect cost award: $ 1 million.Admittedly, this example involves round numbers and evenly distributed costs. In practice, the methodology would rarely be this clean, and the ultimate indirect cost award could vary slightly depending on whether the rate was pegged to total direct costs or salaries and wages. But, as the Court said earlier, the purpose of the methodology is to allocate indirect costs across awards in a roughly even manner-so that "each Federal award bear[s] a fair share of the indirect costs in reasonable relation to the benefits received from the costs." 2 C.F.R. pt. 200, app VII, § B.1 (emphasis added).B. Factual BackgroundThis case arises out of a dispute over the amount of recoverable indirect CSCs related to a self-determination contract for healthcare services. Such contracts for health care services, as one might expect, fall within the purview of the Secretary of HHS and are overseen by the Indian Health Services ("IHS"), one of HHS's operating divisions. Plaintiff, the Seminole *106Tribe of Florida, has for years contracted with HHS and IHS to operate its own health program. For fiscal year 2018, the parties were able to agree on the Secretarial amount and the level of direct CSCs to be transferred to the Tribe to fund the program, but the parties could not reach an agreement on indirect CSCs.Amidst this impasse, the Tribe submitted to IHS a formal "proposal for a self-determination contract" within the meaning of the ISDEAA. 25 U.S.C. § 5321(a)(2). This proposal included the parties' agreed-upon Secretarial amount of $ 7,389,718 and direct CSC amount of $ 939,724. See Pl.'s Mot. for Summ. J., Ex. A., ECF No. 9-1 at 7. It then indicated that the indirect CSC amount would be $ 1,900,269, which the Proposal explained was based on application of the indirect cost rate that the Tribe had negotiated with the IBC. That rate-28.32 percent-had been determined using a distribution base of salaries, wages, and fringe benefits, so the Tribe estimated its healthcare indirect CSCs by multiplying the total salaries, wages, and fringe benefits associated with its healthcare program by .2832.Consistent with the ISDEAA's procedural requirements, IHS responded by rejecting the Tribe's proposal within the prescribed ninety-day period. And also consistent with the Act, IHS based its decision on one of the five enumerated grounds for rejection-that being its belief that the Tribe's request was "in excess of the applicable funding level for the contract." 25 U.S.C. § 5321(a)(2)(D) ; see also Pl.'s Mot. for Summ. J., Ex. B at 2, ECF No. 9-2. According to IHS, it had no issue using the 28.32 percent rate that the Tribe had negotiated for all of its federal contracts; the problem instead lied with the base amount that the Tribe proposed. See id. at 6, 8. As a formal matter, the Tribe was using the pot of funds it was supposed to: the salaries, wages, and fringe benefits associated with the federal health program. But the Tribe had taken advantage of a provision of the ISDEAA that permitted it to "reallocate or redirect" its IHS funds "in any manner which [the Tribe] deem[ed] to be in the best interest of the health and welfare of the Indian community being served." 25 U.S.C. § 5386. Pursuant to this authority, the Tribe had decided to reallocate the Secretarial amount such that 98.93 percent of the nearly $ 7.4 million would be spent on salaries, wages, and benefits. Pl.'s Mot. for Summ. J., Ex. B at 8. As the Tribe itself admits, it was able to do this only because it could afford to cover the remaining costs of the program with its own funds. See, e.g. , Pl.'s Mem. in Supp. of Mot. for Summ. J. ("Pl.'s Mot. for Summ. J.") at 1, ECF No. 9.In its rejection letter, IHS stressed that "[f]or purposes other than CSC calculations, the Tribe may reallocate or redirect funds subject to the confines of the" ISDEAA. Pl.'s Mot. for Summ. J., Ex. B. at 9. For purposes of CSC calculations, however, the agency reasoned that the Tribe's reallocation had the effect of artificially inflating the base amount. The Tribe had, in other words, used its reallocation authority to get the best of both worlds: it had made its base amount resemble total direct costs while keeping the higher indirect cost rate that had been negotiated based on salaries and wages. This, IHS said, "inappropriately shift[ed] expenses to ... IHS for purposes of calculating indirect CSC"-because application of the higher rate to the inflated base meant that the indirect CSC amount had been determined using expenses that were effectively not IHS-funded. Id. at 9. According to IHS, this violated the ISDEAA's limitation that tribes recover only the indirect CSCs that constitute the "reasonable" costs "incurred ... in connection with the operation of the Federal program ... pursuant *107to the [self-determination] contract." 25 U.S.C. § 5325(a)(3)(A)(ii) ; see also Pl.'s Mot. for Summ. J., Ex. B at 7, 9.As an alternative to the Tribe's proposal, IHS suggested that indirect CSCs be calculated by applying the Tribe's negotiated indirect cost rate to an equitable proportion of the Tribe's salaries, wages, and benefits. Pl.'s Mot. for Summ. J., Ex. B at 8. The agency explained that it normally "expends 71 percent of the total funding on salaries and fringe benefits when it directly operates a program." Id. at 9. Thus, the agency estimated that "approximately 71 percent of the funding transferred to the Tribe in its Secretarial amount represents the salaries and fringe associated with the" federal program, which in this case would make the base amount $ 5,246,700. Id. But "due to Tribe's unique circumstances and the parties' government-to-government negotiations," IHS said that it was willing to accept a higher base-determined by taking 80 percent of the total direct costs associated with the Tribe's federal program. This approach yielded a base amount of $ 6,655,712, which, when multiplied by the 28.32 percent indirect cost rate, produced an indirect CSC amount of $ 1,740,786-$ 159,483 lower than the Tribe's proposal.1Upon receipt of IHS's rejection letter, the Tribe opted to exercise its right under the ISDEAA to go straight to federal court. See 25 U.S.C. § 5321(b)(3) (providing that tribes may forego the opportunity to file an appeal with IHS and instead "exercise the option to initiate an action in a Federal district court and proceed directly to such court"); id. § 5331(a) (conferring district courts with jurisdiction "over any civil action or claim against the appropriate Secretary arising under" the ISDEAA); id. § 5391(a) (stating expressly that § 5331 applies to self-determination contracts for health services). The Tribe filed the instant complaint against the Secretary of HHS and the acting director of IHS asserting two counts: The first sought a declaration that IHS's approach of using an "equitable" portion of salaries, wages, and benefits was unlawful under the ISDEAA. The second requested injunctive or mandamus relief requiring IHS to fund indirect CSCs in the amount that the Tribe proposed. See Compl. ¶¶ 36-45, ECF No. 1. Before Defendants had even answered the complaint, the Tribe filed a motion for summary judgment on both counts. Defendants responded by filing their own cross-motion for summary judgment, in which they ask the Court to declare the Tribe's proposal as unlawful under the ISDEAA and affirm IHS's rejection of the proposal.III. LEGAL STANDARDUnder the Administrative Procedure Act ("APA"), courts typically defer to agency adjudications unless the plaintiff demonstrates that the decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). The ISDEAA changes the landscape, however-as courts in this circuit have already recognized. See, e.g., Pyramid Lake Paiute Tribe v. Burwell , 70 F.Supp.3d 534, 541-42 (D.D.C. 2014) ; Seneca Nation of Indians v. U.S. Dep't of Health and Human Servs. , 945 F.Supp.2d 135, 141-42, 142 n.5 (D.D.C. 2013). Congress passed the Act with the *108"intent to circumscribe as tightly as possible the discretion of the Secretary." Ramah Navajo Sch. Bd. v. Babbitt , 87 F.3d 1338, 1344 (D.C. Cir. 1996). The Act provides that the Secretary has the "burden of demonstrating by clear and convincing evidence the validity of the grounds for rejecting [a tribe's] offer," 25 U.S.C. § 5387(d), and it prohibits the Secretary from promulgating regulations except in specific circumstances, id. § 5328(a).Also relevant in this context is what courts have taken to calling the "Indian law canon of statutory construction," which counsels that "laws affecting Indians 'be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.' " Pyramid Lake , 70 F.Supp.3d at 541-42 (quoting Cobell v. Norton , 240 F.3d 1081, 1101 (D.C. Cir. 2001) ); see also Montana v. Blackfeet Tribe of Indians , 471 U.S. 759, 766, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985). Thus, "even where [an] ambiguous statute is entrusted to an agency," if the statute impacts Indians, courts "give the agency's interpretation 'careful consideration' but '[they] do not defer to it.' " Cobell , 240 F.3d at 1101 (quoting Muscogee (Creek) Nation v. Hodel , 851 F.2d 1439, 1445 n.8 (D.C. Cir. 1988) ). If there were any doubt that the canon applies with full force in the context of ISDEAA cases, the Act itself puts the doubt to rest: The Act's model contract language expressly incorporates the canon-stating that every self-determination contract provision "shall be liberally construed to the benefit of the [tribal] Contractor." 25 U.S.C. § 5329(a)(2).Taking all of this into account, courts usually apply a de novo standard of review when considering a tribe's challenge to an agency rejection under the ISDEAA. See, e.g., Pyramid Lake , 70 F.Supp.3d at 542 ; Seneca Nation , 945 F.Supp.2d 135, 141-42, 142 n.5. The one exception appears to be cases where a tribe brings claims under both the ISDEAA and the APA. See Citizen Potawatomi Nation v. Salazar , 624 F.Supp.2d 103, 109 (D.D.C. 2009). This exception is inapplicable here, though: the Seminole Tribe does not assert an APA claim. The Court will thus perform a de novo review of IHS's partial rejection of the Tribe's proposal.Of course, in performing its de novo review, the Court is guided by the familiar summary judgment standard, which provides that summary judgment is warranted only where "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). "When, as in this case, both parties file cross-motions for summary judgment, each must carry its own burden under the applicable legal standard." Ehrman v. United States , 429 F.Supp.2d 61, 67 (D.D.C. 2006). "[N]either party waives the right to a full trial on the merits by filing its own motion; each side concedes that no material facts are at issue only for the purposes of its own motion." Hodes v. U.S. Dep't of Treasury , 967 F.Supp.2d 369, 373 (D.D.C. 2013) (quoting Sherwood v. Wash. Post , 871 F.2d 1144, 1147 n.4 (D.C. Cir. 1989) ). But although each party's motion is viewed separately, the Court may ultimately grant summary judgment "only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed." Cause of Action Inst. v. IRS , 316 F.Supp.3d 99, 105 (D.D.C. 2018). And "despite the parties' stipulations that there are no disputed facts," the Court may still find that material facts are in dispute and, accordingly, deny both motions. Shea v. Kerry , 961 F.Supp.2d 17, 27 (D.D.C. 2013).IV. ANALYSISAs noted above, the Tribe's complaint in this case asserts two separate claims.*109Count One focuses on IHS's offer to use eighty percent of total direct costs as the base for calculating indirect CSCs. The Tribe asks that the Court declare that that approach is "contrary to the express terms of the ISDEAA and cannot serve as the basis for rejecting the Tribe's final offer." Compl. ¶ 40. Count Two, by contrast, focuses on the validity of the Tribe's proposal. According to the Tribe, the IHS's rejection letter did not establish that the proposal "exceed[ed] the applicable funding level to which the Tribe [was] entitled." Id. ¶ 43. The Tribe therefore asks that the Court " 'compel the Secretary to award and fund' the agreement as proposed." Id. ¶ 44 (quoting 25 U.S.C. § 5331(a) ).As the Tribe seems to see it, both of these claims turn on the same "straightforward issue of statutory interpretation: Does the ISDEAA allow IHS to arbitrarily limit the reallocation authority in § 5386(e) by imposing an 80% salary cap on the Tribe?" Pl.'s Mot. for Summ. J at 1-2. The answer to that question is no, the Tribe says, meaning IHS had no authority to reject the Tribe's indirect CSC proposal and offer its alternative calculation.The Court sees things differently, however. The Tribe's reallocation authority is not directly at issue here, as IHS has not attempted to prevent the Tribe from redirecting its federal funding. Instead, the critical question is whether the Tribe's proposal for indirect CSCs exceeded "the applicable funding level for the contract." 25 U.S.C. § 5321(a)(2)(D). And, as the Court will explain below, that is a fact-specific question. The ISDEAA provides only general guidance on how indirect CSCs should be calculated, and conformity with the Act's standards turns on the particular circumstances of a given case. Because the Court currently lacks significant information about the circumstances of this case, it denies both parties' motions for summary judgment.A. The ISDEAA's Limit on Indirect CSC FundingTo evaluate the merits of both of the Tribe's claims, the Court begins by reviewing what the ISDEAA says about indirect CSCs-and then also what the Act does not say. The Act defines CSCs as the "reasonable costs for activities which must be carried on by a tribal organization as a contractor to ensure compliance with the terms of the contract and prudent management." 25 U.S.C. § 5325(a)(2). It then defines indirect CSCs specifically as the "reasonable and allowable costs ... related to the overhead incurred by the tribal contractor in connection with the operation of the Federal program, function, service, or activity pursuant to the contract." Id. § 5325(a)(3)(A)(ii). These definitions are limited, however, by a separate section of the ISDEAA, which provides that "funds available to the Indian Health Service" under the Act "may be expended only for costs ... attributable to contracts, grants and compacts pursuant to the [ISDEAA]" and that "no funds appropriated by this or any other Act shall be available for any contract support costs or indirect costs associated with any contract, grant, cooperative agreement, self-governance compact, or funding agreement entered into between an Indian tribe or tribal organization and any entity other than the Indian Health Service." Id. § 5326.Reading these provisions together, the ISDEAA is clear about at least one thing: as another court in this circuit has already held, the Act "explicitly prohibits" IHS from "funding ... indirect costs 'associated with' non-IHS entities." Tunica-Biloxi Tribe of La. v. United States , 577 F.Supp.2d 382, 418 (D.D.C. 2008) (quoting 25 U.S.C. § 5325 ). It, in other words, "limit[s] the amount of indirect *110cost funding required of the ... Secretary to those costs attributable to the Secretary's self-determination contract with the tribal contractor." Id. at 423. Thus, although the Act may cabin IHS's discretion, it does not eliminate the agency's role entirely; IHS has an obligation to ensure that a Tribe's request for indirect CSCs constitutes the reasonable costs resulting from the Tribe's federal health program. Otherwise, the Tribe's proposal "is in excess of the applicable funding level for the contract," and it must be rejected. 25 U.S.C. § 5321(a)(2)(D).The ISDEAA provides little instruction, though, on how IHS should go about fulfilling its obligation. The Act is silent on what "reasonable" means in this context, and it does not say how indirect CSCs should be estimated. Instead, as the Court said earlier, those calculations are guided by OMB-issued uniform cost principles that are codified in the Code of Federal Regulations. See generally 2 C.F.R. pt. 200. Those principles state that indirect CSCs may be calculated using an indirect cost rate that is determined by taking an estimate of total indirect costs associated with all of a tribal organization's federal awards together and dividing that estimate by a distribution base made up of costs resulting from those federal awards. See 2 C.F.R. pt. 200, app. VII, §§ B.9, E.2. That distribution base is usually either the total direct costs of all of those federal programs, or the portion of those costs made up by salaries and wages. Id. § C.2.a, c. The product of the division equation is an indirect cost rate, which is then used to allocate indirect costs to individual contracts by multiplying the rate by the base amount attributable to the individual contract at issue. Id. § C.2.a.Here, the Tribe has agreed on an indirect cost rate with the IBC that is pegged to salaries, wages, and fringe benefits. And the Tribe's proposal for indirect CSCs is based on application of that rate to the salaries, wages, and benefits that it contends are attributable to its federally funded health program. In its motion for summary judgment, the Tribe seems to suggest that IHS must accept the results of this methodology in all instances. See, e.g. , Pl.'s Mot. for Summ. J. at 7 ("IHS accepts the Tribe's rate, as it must."); Pl.'s Reply in Support of Mot. for Summ. J. ("Pl.'s Reply") at 7, ECF No. 15 ("IHS's 80% ... cap lacks any grounding in the statute."). Essentially, the Tribe says that, by rejecting the methodology here, IHS violated the ISDEAA.The Court disagrees with this as a general contention, however. Nothing in the OMB principles come close to indicating that the prescribed methodology will produce the statutorily correct result every time. To the contrary, in fact, the principles say that "[o]nce a rate has been agreed upon, it will be accepted and used by all Federal agencies unless prohibited or limited by statute. " 2 C.F.R. pt. 200, app VII § E.1 (emphasis added); see also id. § C.4.b. ("Where Federal statutes restrict the reimbursement of certain indirect costs, it may be necessary to develop a special rate for the affected Federal award."). The Tribe's Indirect Cost Negotiation Agreement with the Interior Business Center similarly states that "[u]se of the rate(s) contained in th[e] agreement is subject to any applicable statutory limitations." Pl.'s Mot. for Summ. J., Ex. C at 2. The ISDEAA contains such a limitation, as the Court just finished explaining. The Act permits IHS to fund only the indirect CSCs that constitute the reasonable costs resulting from the Tribe's self-determination contract for health services. See Tunica-Biloxi , 577 F.Supp.2d at 418-23. Thus, if IHS believes that the OMB-provided methodology runs astray of this requirement *111under the facts of a particular case, nothing prevents the agency from speaking up and proposing a modification; the agency is in fact statutorily required to do so.Having said all of this, IHS's published Indian Health Manual -its guidance document on self-determination contracts and CSC awards-indicates that OMB's uniform principles are generally accepted, while also maintaining that "costs must be analyzed to ensure they meet the definition of CSC[s]" in the ISDEAA. See Defs.' Cross-Mot. for Summ. J. ("Defs.' Cross-Mot."), Ex. 1 at 19, ECF No. 14-2. In weighing the parties' specific arguments here, then, the Court starts with the premise that application of OMB's uniform principles will result in indirect CSC awards that are reasonable and consistent with the ISDEAA, absent abnormal circumstances.IHS contends that abnormal circumstances are present here because the Tribe has allocated an unusually large portion of its IHS funds to salaries, wages, and fringe benefits. IHS does not dispute that the Tribe has the statutory authority to redirect its federal money in this manner, see 25 U.S.C. § 5386, but the agency argues that it has the effect of distorting the application of OMB's methodology by creating a mismatch between the indirect cost rate and the base amount to which that rate is applied. To understand this supposed mismatch, recall what an indirect cost rate is supposed to signify: it is "the percentage which the total amount of allowable indirect costs" for all federal contracts "bears to the [distribution] base selected." See 2 C.F.R. pt. 200, app. VII, § C.2.a. When the selected distribution base is all total direct costs, the rate is likely to be relatively low. The rate is likely to be higher, on the other hand, when the selected base is a merely a portion of total direct costs-like salaries, wages, and benefits, which according to IHS, typically make up roughly 70 percent of the total direct costs of a federal tribal health program. See Defs.' Cross-Mot., Ex. 3, Decl. of Ashley Metcalf ¶ 18, ECF No. 14-4.Here, the Tribe has chosen to redirect its IHS funds so that 98.93 percent of its Secretarial amount is spent on salaries, wages, and benefits. See Pl.'s Mot. for Summ J., Ex. B at 8-9. Thus, the Tribe's base amount for its indirect CSC calculation more closely resembles the total direct costs of the entire program than the amount one would expect to be expended on salaries, wages, and benefits. Yet that base amount was still subject to an indirect cost rate that had been pegged to salaries, wages, and benefits-a kind of rate that, again, is generally higher than a rate based on total direct costs. According to IHS, therein lies the mismatch: a high indirect cost rate applied to a high base amount produces an "artificially" increased indirect CSC estimate. Defs.' Cross-Mot. at 12, ECF No. 14.This line of reasoning alone would maybe be sufficient for IHS if this were an APA case. Under the ISDEAA, however, it is IHS's burden to show by "clear and convincing evidence" that this claimed mismatch amounts to a statutory violation. See 25 U.S.C. § 5387(d). At this point in the proceedings, the agency has not yet met that burden. It has provided ample evidence that the Tribe's base amount has been inflated, but it has given the Court virtually no information about the specific inputs that would determine the Tribe's indirect cost rate under the OMB methodology. And, at the risk of stating the obvious, in order to show that a mismatch *112between the base amount and the rate exists, evidence concerning both the base amount and the rate is necessary. Without specific evidence about the Tribe's rate, it remains possible that the rate somehow offsets the fact that the Tribe spends an unusually high amount of money in support of salaries, wages, and benefits in relation to its federal health program.IHS's key piece of evidence illustrates the problem quite well. With its cross-motion for summary judgment, the agency submitted financial documents from 2015 that purportedly supported the Tribe's indirect cost proposal to the IBC in support of its indirect cost rate negotiations. See Defs.' Cross-Mot., Ex. 2, ECF No. 14-3. Those documents, IHS claims, show that the Tribe operates a very large health program, and that the Secretarial amount funds "only a small fraction" of that program-about 10 percent. See Defs.' Cross-Mot. at 16, 19. According to IHS, the 2015 documents also show that IHS money funds approximately 50 percent of the salaries, wages, and benefits for the Tribe's entire expanded health program. Id. at 19. In IHS's view, that figure "clearly show[s] that allowing [the Tribe] to distort the ... cost base as it has done results in IHS paying much more than its pro rata share of indirect costs." Id.Yet as the Court just said, to show distortion, IHS needs evidence concerning the Tribe's rate as well. It is possible that the 2015 documents that IHS has submitted include information to this effect, but if they do, the information is redacted. The distribution base, for example, that was used to determine the Tribe's indirect cost rate should have comprised costs associated with all of the Tribe's federal programs. The submitted documents appear to include financial information regarding such other programs, but the information is redacted. Thus, as things currently stand, the Court does not know what other federal programs the Tribe operates, and the Court certainly does not know how costly those programs are, or what percentage of those costs are for salaries, wages, and benefits. If salaries, wages, and benefits made up a similarly high percentage of the budgets of those other federal programs, it is theoretically possible that the resulting indirect cost rate would have no distortive effect.To be sure, IHS may not have submitted any of this evidence because it does not have it. The Tribe negotiated its indirect cost rate with the IBC; IHS played no role. The redactions on the 2015 documents also may be the Tribe's responsibility and not the agency's. At the same time, though, the ISDEAA places a heavy burden on IHS, and the agency has not even provided more generalized information, such as evidence that shows what typical indirect cost rates pegged to salaries might look like compared to those pegged to total direct costs.By not providing any information whatsoever, IHS's motion for summary judgment depends on the Court accepting a critical assumption: that the Tribe's indirect cost rate does not somehow account for the unusually high amount of salaries, wages, and benefits being expended in relation to the Tribe's federal health program. That assumption might be a reasonable one; the Court has no cause to believe that the rate does offset the effect of the inflated base amount. However, reliance on an assumption does not constitute "clear and convincing evidence" that the Tribe's proposal exceeded "the applicable funding level for the contract." 25 U.S.C. §§ 5321(a)(2)(D), 5387(d). With specific evidence about the Tribe's indirect cost rate lacking, summary judgment in IHS's favor is inappropriate at this time, as an issue of material fact remains unresolved.*113That said, if IHS is correct in its assumption that the Tribe's indirect cost rate is incompatible with the base amount to which it is applied, the Court agrees that this presents a potential problem under the ISDEAA. It raises the possibility that the Tribe's estimate is based on costs that are not actually "attributable to" or "associated with" the Tribe's self-determination contract. 25 U.S.C. § 5326. The Court therefore finds that summary judgment in favor of the Tribe is unwarranted at this stage as well.As IHS explained in its rejection letter, the Tribe's reallocation left "less than $ 90,000 in the remaining budget funded by the Secretarial amount." Pl.'s Mot. for Summ J., Ex. B at 9. "Clearly," IHS said, "it would be impossible for the Tribe to operate a health care program with these remaining funds unless it was relying on its own separate revenue," so it is "obvious that the Tribe's proposed indirect CSC amount is being calculated based, at least in part, on additional resources the Tribe is choosing to use" and is "not solely based on specific activities that are necessary to support the" federal program. Id.The Tribe, for its part, does not dispute that this is true; it concedes that it is able to use its own funds to cover the remaining costs of the federal program. According to the Tribe, it is permissible to factor those other funds into the indirect CSC calculation because "[a]t least one court has held that such third-party revenues used by a tribe to provide services under its ISDEAA agreement are part of the Secretarial amount and generate CSC just like IHS-appropriated funds." Pl.'s Mot. for Summ. J. at 15.But even if that other decision was correctly decided, the Tribe has not shown that it is applicable here. The case on which the Tribe relies, Navajo Health Foundation-Sage Memorial Hospital, Inc. v. Burwell , 263 F.Supp.3d 1083 (D.N.M. 2016), does not say that tribes may recover CSCs generated based on all outside, supplemental funds spent in relation to a federal health program. Rather, Sage Memorial presented the narrower question of whether "third-party revenue from Medicaid, Medicare, and private insurance" companies must be included in the CSC calculation. Id. at 1114. The court held that such revenue had to be included. As the court explained, the ISDEAA "specifically notes that the 'program income earned by a tribal organization in the course of carrying out a self-determination contract ... shall not be a basis for reducing the amount of funds otherwise obligated [to] the contract.' " Id. at 1166-67 (quoting 25 U.S.C. § 5325(m) ). A second provision of the Act similarly states that "[a]ll Medicare, Medicaid, or other program income ... shall not result in any offset or reduction in the amount of funds the Indian tribe is authorized to receive under its funding agreement in the year the program income is received or for any subsequent fiscal year." 25 U.S.C. § 5388(j). Thus, the source of the supplemental funding was critical in Sage Memorial ; because the money had been "earned in the course of carrying out" the self-determination contract, it could not be excluded from the CSC calculation. 25 U.S.C. § 5325(m).By contrast, here, the Tribe has not established that any of its supplemental funds constitute program income earned in the course of carrying out its federal health program. In fact, the Tribe has hinted that most of the money is unrelated to the federal health program. See Pl.'s Mot. for Summ. J. at 8 ("[T]he Tribe is willing and able to cover these additional expenses with its own funds and, to a lesser extent , third-party revenues." (emphasis added) ). Nonetheless, the Tribe argues that "this case presents an easier question than ... Sage Memorial " because it has merely "proposed to recover *114CSC in support of IHS-appropriated funding, not tribal or third-party funding." Id. at 15. The argument seems to be that the Tribe's proposed base amount for purposes of calculating indirect CSCs is made up entirely of IHS money. But this argument fails for reasons that were already provided above: if the base has been inflated-even with IHS funds-and the indirect cost rate does not account for or offset that inflation, the effect is that the indirect CSC amount is being calculated based in part on the Tribe's own resources. And unless those other resources turn out to be "program income" within the meaning of the ISDEAA, there is a problem, as the Tribe's estimate would be based on costs that are not actually "attributable to" or "associated with" the Tribe's self-determination contract. 25 U.S.C. § 5326.Although the Tribe may have suggested that most of the supplemental funding it is using here does not constitute program income, the reality is that the Court currently has no information concerning the source of the money. If the Tribe can show that its other money is program income, Sage Memorial may ultimately govern. But for now, there are at least two categories of material factual issues that remain unresolved: (1) the source of the Tribe's supplemental funds; and (2) the specific circumstances surrounding the determination of the Tribe's indirect cost rate. With these issues outstanding, the Court is unable to conclude that either party is entitled to judgment as a matter of law.Having concluded that material factual issues remain unresolved and that summary judgment is inappropriate, the Court's final task is to determine where the factual questions should be addressed in the first instance. IHS has suggested it is open to further negotiation, and it argues that the proper course is remand. See Defs.' Reply at 7, ECF No. 17. The Court agrees that this is the preferable approach under these circumstances. Although the ISDEAA permits the Court to retain jurisdiction over the parties' dispute, see 25 U.S.C. §§ 5321(b)(3), 5331(a), it is a well-established principle of administrative law that reviewing courts have discretion to remand to the agency upon the agency's request, see Sierra Club v. Van Antwerp , 560 F.Supp.2d 21, 23 (D.D.C. 2008) (citing Citizens Against Pellissippi Parkway Extension, Inc. v. Mineta , 375 F.3d 412, 417 (6th Cir. 2004) ). Indeed, at least in the APA context, as long as the agency's reasons for seeking a remand are "substantial and legitimate, a remand is usually appropriate," particularly when such a course would potentially save both the parties and the court time and resources. Id. cf. Ethyl Corp. v. Browner , 989 F.2d 522, 524 (D.C. Cir. 1993) (Courts commonly grant agency requests for remand, "preferring to allow agencies to cure their own mistakes rather than wasting the courts' and the parties' resources reviewing a record that both sides acknowledge to be incorrect or incomplete.").IHS's desire for remand here appears legitimate: it says that it is willing to negotiate in line with the Court's holding, and it says that it remains "flexible in offering an appropriate figure that represents [the Tribe's] CSC according to the requirements of the ISDEAA." Defs.' Reply at 7. As the Court has no reason to question these assertions, it thinks that the parties should be afforded another opportunity to reach an agreement before time and resources are expended on further judicial proceedings. The Tribe also does not argue that the Court lacks the authority to remand; it contends only that remand is inappropriate because IHS's denial was contrary to the ISDEAA as a matter of law. See Pl.'s Reply at 11-12. Of course, the Court has now rejected that position and concluded that it is unable to rule in *115the Tribe's favor based on the current record. In circumstances like these, the Tribe itself seems to acknowledge that remand can be beneficial. See id. at 12 ("Remand is appropriate when a court requires more information to make a decision...."). The Court therefore exercises its discretion to remand to IHS for further consideration, and the Court stays this case in the interim. If the parties ultimately do reach an agreement, they should file a stipulation of dismissal with the Court. In the meantime, they must file a joint status report every 60 days that updates the Court on the progress of negotiations and proposes a schedule for further proceedings.For the foregoing reasons, the Tribe's motion for summary judgment and Defendants' cross-motion for summary judgment are both DENIED . An order consistent with this Memorandum Opinion is separately and contemporaneously issued.The observant mathematicians will notice that 28.32% of $ 6,655,712 is in fact roughly $ 1,884,897. As far as the Court can tell, IHS's number of $ 1,740,786 was the product of subtracting a credit for indirect-cost funding that is contained within the Secretarial amount. The use of such a credit is not an issue in this case. See Compl. ¶ 32 n.5, ECF No. 1. Indeed, the Tribe's proposed amount similarly involved the subtraction of a credit that was contained within the Secretarial amount. Id. ¶ 32. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1137057/ | 647 So. 2d 1094 (1994)
STATE ex rel. Claude SIMMONS, Sr.
v.
STATE of Louisiana.
STATE ex rel. Anthony SCOTT
v.
N. Burl CAIN, Warden.
STATE ex rel. Birdette BARKER
v.
CLERK OF COURT 1st JDC.
Nos. 93-KH-0275, 94-KH-2630 and 94-KH-2879.
Supreme Court of Louisiana.
December 16, 1994.
*1095 PER CURIAM.
In these consolidated applications, the relators have requested various documents pertaining to their convictions and sentences.
Although as a general matter incarcerated indigents must demonstrate a particularized need for a court document before receiving a copy of it free of charge, see, e.g. State ex rel. Stewart v. Lombard, 94-0040 (La. 6/3/94), 637 So. 2d 496; cf. United States v. MacCollom, 426 U.S. 317, 325, 96 S. Ct. 2086, 2091, 48 L. Ed. 2d 666 (1976); State ex rel. Nash v. State, 604 So. 2d 1054 (La.App. 1st Cir.1992); LSA-R.S. 44:32(C)(1)(a), this Court has established exceptions to that rule. Thus, indigent inmates must be provided with: transcripts of their guilty plea colloquies, see, e.g., State ex rel. Murray v. Ward, 363 So. 2d 913 (La.1978); State ex rel. Johnson v. Clerk, Fifth Judicial District Court, 479 So. 2d 916 (La.1985); copies of the bill of information or grand jury indictment charging them with committing a crime, as required by La. C.Cr.P. art. 498, see, e.g., State ex rel. Dotson v. Waldron, 629 So. 2d 1148 (La.1993); copies of the district court minutes for various portions of their trials, see, e.g., State ex rel. Carter v. State, 590 So. 2d 1191 (La.1992); copies of transcripts of evidentiary hearings held on their applications for post conviction relief, see, e.g., State v. Feet, 617 So. 2d 921 (La.1993); and copies of the documents committing them into custody, see, e.g., State ex rel. Foret v. State, 617 So. 2d 900 (La.1993); State v. Martin, 516 So. 2d 124 (La.1987).
Accordingly, in No. 94-KH-2630, the district court is ordered to provide the relator with a copy of the transcript of the colloquy of his guilty plea. In No. 94-KH-2879, the district court is ordered to provide the relator with a copy of the charging document in his case. In 93-KH-0275, the district court is ordered to provide relator with a copy of the transcript of the evidentiary hearing conducted on August 12, 1992, on his application for post conviction relief.
As to the other documents requested by the relators in Nos. 94-KH-2630 and 94-KH-2879, their applications are denied. The relators have not demonstrated the required particularized need. See MacCollom, 426 U.S. at 329, 96 S.Ct. at 2093 (Blackmun, J., concurring).
KIMBALL, MARCUS and WATSON, JJ., not on panel. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3069277/ | COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
BARRY FRANCIS BELLVILLE, § No. 08-13-00238-CR
Appellant, § Appeal from the
v. § County Criminal Court No. 3
THE STATE OF TEXAS, § of Denton County Texas
Appellee. § (TC# CR-2012-07153-C)
JUDGMENT
The Court has considered this cause on the record and concludes there was no error in the
judgment. We therefore affirm the judgment of the court below. This decision shall be certified
below for observance.
IT IS SO ORDERED THIS 15TH DAY OF APRIL, 2015.
STEVEN L. HUGHES, Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1318660/ | 198 Va. 432 (1956)
C. H. LAMB, COMMISSIONER OF THE DIVISION OF MOTOR VEHICLES OF THE COMMONWEALTH OF VIRGINIA
v.
CLARENCE JAMES MOZINGO.
Record No. 4574.
Supreme Court of Virginia.
October 8, 1956.
D. Gardiner Tyler, Jr., Assistant Attorney General, (J. Lindsay Almond, Jr., Attorney General, on brief), for the appellant.
Present, Hudgins, C.J., and Eggleston, Spratley, Miller and Whittle, JJ.
1. The Commissioner suspended Mozingo's motor vehicle operator's license for a period of thirty days upon a finding that he had, within the intent of Code 1950, section 46-420, committed serious violations of the motor vehicle laws and had by unlawful operation of a vehicle caused accidents resulting in serious property damage. On appeal to the circuit court the Commissioner charged the commission by Mozingo of other traffic offenses, including one where the abstract of conviction showed defendant admitted to reckless driving at 75 miles an hour, and called as witness the officer who made the arrest though this officer had not been listed as a witness as required by Code section 46-421. But since this officer's testimony added nothing to what was shown by the abstract of conviction, no reversible error was committed in letting him testify.
2. Since the testimony indicated Mozingo had become a safe and competent driver by the time he was cited to appear before the Commissioner, it was correctly held his license could not be suspended on the ground he was an habitually reckless or negligent driver.
3. The Commissioner's order of suspension should not be vacated by the circuit court if his findings are supported by a preponderance of the evidence and if he has applied correct principles of law to the proved facts.
4. The order of suspension was amply justified, however, on the other grounds charged. Mozingo had been guilty of serious violations of the motor vehicle laws, in that he was convicted of reckless driving (speeding at 75 miles per hour) and of crossing the center line of the highway, striking another vehicle. Proof of a further conviction, for failing to observe a stop sign with the result another vehicle was hit and badly damaged, while not showing a serious violation, did show ground for suspension of license for having caused an accident resulting in serious property damage.
Error to a judgment of the Circuit Court of Westmoreland county. Hon. Daniel Weymouth, judge presiding. The opinion states the case.
George Mason, Jr. and J. T. Robertson (Hutt and Robertson, on brief), for the appellee.
MILLER
MILLER, J., delivered the opinion of the court.
The question presented is whether or not the circuit court properly reversed and annulled an order entered on August 3, 1955, by C. H. Lamb, Commissioner of Motor Vehicles, under authority of | 46-420, Code of 1950, which suspended for thirty days the operator's and chauffeur's licenses of Clarence James Mozingo.
The pertinent provisions of | 46-420 follow:
"The Commissioner may, after due hearing, * * * suspend or revoke for not more than one year * * * the operator's or chauffeur's license issued to any person * * * whenever it is satisfactorily proved * * * that the licensee under charges:"
"(1) Has, by reckless or unlawful operation of a motor vehicle, caused or contributed to an accident resulting in death or injury to any other person or in serious property damage."
* * *
"(4) Is habitually a reckless or negligent driver of a motor vehicle,"
"(5) Has committed a serious violation of the motor vehicle laws of this State. * * *"
In a citation notice dated July 5, 1955, served upon Mozingo as provided for in | 46-420, he was charged *434
(1) with having committed serious violations of the motor vehicles laws of this State, i.e., on March 11, 1955, for which he had been convicted on March 15, 1955 and on June 13, 1954, for which he had been convicted on July 6, 1954;
(2) with reckless or unlawful operation of a motor vehicle on December 20, 1954, and on June 13, 1954, which caused or contributed to accidents resulting in serious property damage, and
(3) with being habitually a reckless or negligent driver of a motor vehicle.
Upon evidence presented before a designated representative at a hearing held on July 12, 1955, the Commissioner found that specifications (3) charging that Mozingo was habitually a reckless or negligent driver was not sustained, but he held that specifications (1) and (2) were sustained and ordered the suspension of Mozingo's licenses.
In his petition of appeal to the circuit court Mozingo asserts that the "order of suspension is unsupported by the evidence * * *" and constitutes "an abuse of discretion" by the Commissioner.
The Commissioner's answer to the petition asserts that the evidence is ample to support the order suspending the licenses for thirty days. He also alleges that since the hearing on July 12, 1955, it has come to his attention that Mozingo had been convicted of other violations of the motor vehicle laws not charged in the notice of July 5, 1955, which are as follows: TABLE OMITTED
It was also asserted that the offense for which Mozingo was convicted on June 4, 1952, in the Trial Justice Court of King and Queen county constituted a serious violation of the motor vehicle laws. The Commissioner prayed that the court take into account these additional *435 violations, and now asks that the period of suspension of thirty days be lengthened, which he insists is permitted by | 46-424, Code of 1950, and should be ordered by this court.
Some evidence, in addition to that introduced before the Commissioner was presented to the circuit court. Summarized, the evidence offered before the Commissioner and the circuit court is to the following effect:
The abstract of conviction of July 6, 1954, shows that Mozingo was charged with reckless driving on June 13, 1954, but was "convicted of crossing solid line" and fined $10 and costs. Section 46-222, Code of 1950.
The testimony of officer L. D. Isbell, Jr., and William H. Fones given before the Commissioner was that at 8:30 p.m. on June 13, 1954, the automobile which was being driven by Mozingo crossed the center line of Route 3 and sideswiped the Fones car, which was proceeding in the opposite direction. The accident happened at the end of a slight curve that Mozingo had just negotiated and which the Fones car was entering, but the testimony definitely shows that the line in the center of the road was not solid but broken. Though Mozingo admitted that he was driving at 55 miles per hour, he said that he was blinded by the lights of a car preceding the Fones car, and thus could not see the line dividing the traffic lanes. The damage done to the Mozingo and Fones cars was estimated at $350 and $225, respectively.
The evidence given by deputy sheriff S. S. Hall bearing upon the offense of March 11, 1955, for which Mozingo was convicted on March 15, 1955, of speeding and fined $10 and costs shows that Mozingo was driving 55 miles per hour in a 35 mile zone within the town of Montross. The offense took place about 9:15 p.m., and the officer clocked the car's speed for a distance of about half a mile but said he did not consider the speed of 55 miles per hour in this 35 mile zone a serious violation because Mozingo was nearing the limit of the 35 mile zone.
The evidence bearing upon the charge of reckless or unlawful operation of a motor vehicle that caused or contributed to an accident on December 20, 1954, shows that Mozingo failed to stop at a stop sign in the town of Colonial Beach. After passing the stop sign his car struck another automobile and caused the driver of that car to lose control of his vehicle which struck a street. The latter car, which was valued at about $455, was demolished when it struck the *436 tree, and the evidence discloses that the driver was slightly injured and had to receive medical treatment.
The abstract of conviction from the trial justice court of King and Queen county under date of June 4, 1952, shows that Mozingo entered a plea of guilty to the charge of "reckless driving, speeds 75 to 80 miles per hour," and was fined $20 and costs.
Officer Moran who made the arrest did not testify before the Commissioner, but was called as a witness in the circuit court. Mozingo objected and challenged the Commissioner's right to have this witness testify because he had not been listed as a witness in the original citation notice as required by | 46-421, as amended, Acts 1952, c. 544, p. 850, or when the Commissioner added this charge to his list of offenses set out in his answer to Mozingo's petition of appeal. Mozingo did not claim to have been taken by surprise or request a continuance when the witness was allowed to testify. This officer merely testified that Mozingo was driving at 75 to 80 miles per hour when apprehended. That statement added nothing to what the abstract of conviction disclosed, and we find no merit in the objection.
Abstracts of other convictions introduced in evidence show that Mozingo was tried and convicted for the four offenses alleged to have been committed in the years 1948 and 1951.
Several witnesses, neighbors and associates of Mozingo, including a deputy sheriff of Westmoreland county, all of whom had observed his operation of automobiles over a period of years, testified without objection that in their opinion Mozingo was now a careful and competent driver. The testimony of some of these witnesses indicated that they would not have considered him a careful driver several years ago, but they said he had improved and they did consider him a careful driver as of the date of their testimony.
We agree with the Commissioner's finding and the conclusion of the trial court that the evidence fails to sustain the charge that appellee was habitually a reckless or negligent driver of a motor vehicle. This series of convictions for violation of the motor vehicle laws might have established that specification or charge as of an earlier date. However, the preponderance of the evidence tends to show that Mozingo was a competent driver and much more careful than he had been in previous years and was not an habitually reckless or negligent driver as of the time he was cited to appear before the Commissioner. *437
Three of the specific charges, namely, that Mozingo operated his automobile carelessly and recklessly, speed 75 to 80 miles per hour; crossed the center line of the highway and sideswiped an oncoming car inflicting $575 damages upon the two vehicles, and failed to stop at a stop sign, and as a result struck and caused serious damage to another vehicle are undenied and clearly proved by the abstracts of conviction and oral testimony.
Mr. Justice Eggleston, speaking for the court in Commonwealth Hill,
196 Va. 18, 23, 82, S.E.2d 473, said:
"It will be observed that Code, | 46-420, on which the present proceeding is based, provides that 'whenever' any one of the seven listed charges against a licensee has been 'satisfactorily proved at the hearing conducted by the Commissioner,' or his representative, the Commissioner may order a suspension or revocation of the license. Moreover, under item (5) of the section, a suspension or revocation may be ordered by the Commissioner upon a finding that the licensee 'has committed a serious violation of the motor vehicle laws of this State.' (Emphasis added.) Thus, satisfactory proof of a single 'serious violation' may warrant a suspension or revocation."
* * *
"The statute does not define a 'serious' violation and hence we give the word its ordinary meaning. Webster's Unabridged Dictionary lists among its definitions of 'serious': 'Not trifling; grave; giving rise to apprehension; attended with danger.'"
This language applies as well to item (1) of | 46-420 as it does to item (5).
Thus the ultimate question presented is whether or not a fair appraisal of the record shows that Mozingo "committed a serious violation of the motor laws of this State" or "by reckless or unlawful operation of a motor vehicle, caused or contributed to an accident resulting in * * * serious property damage."
In applying | 46-420, the Commissioner is permitted to exercise discretion, and upon appeal the trial court is vested with broad powers under | 46-424, Code 1950, as amended by Acts 1952, c. 544, p. 850. That section provides in part:
"(d) The court, sitting without a jury, shall hear the appeal on the record transmitted by the Commissioner and such additional evidence as may be necessary to resolve any controversy as to the *438 correctness of the record, and the court shall receive such other evidence as the ends of justice require."
"(e) The court may affirm the decision of the Commissioner or remand the case for further proceedings; or it may reverse or modify the decision if the findings, conclusion, or decision of the Commissioner is (1) in violation of constitutional provisions or (2) in excess of statutory authority or jurisdiction of the Commissioner; or (3) made upon unlawful procedure; or (4) affected by other error of law; or (5) unsupported by the evidence on the record considered as a whole; or (6) arbitrary, capricious, or an abuse of discretion; or (7) if such other evidence is heard may affirm, reverse or modify the decision as the ends of justice may require."
Though the trial court be vested with broad discretionary power under | 46-424, yet the Commissioner's order should not be vacated and annulled if his findings are supported by a preponderance of the evidence and he has applied correct principles of law to the proved facts.
The order of the trial court does not state the ground upon which reversal of the Commissioner's order was based; however, a brief opinion rendered by the court shows that the reversal was based upon a finding that the offense committed in 1952 of careless and reckless driving, speed 75 to 80 miles per hour, was remote and in the court's opinion did not justify suspension of Mozingo's license at this late date. The other more recent offenses did not, in the court's opinion, constitute sufficiently serious violations of the motor vehicle laws to warrant suspension of the offender's licenses.
These three offenses are clearly proved by the evidence, and two are of comparatively recent date, and we need only inquire and determine if these violations measure up to the character of offenses for which suspension or revocation of the operator's licenses may be rightly ordered under the provisions of | 46-420.
The offense of reckless driving (speeding 75 to 80 miles per hour) committed in 1952 to which Mozingo pleaded guilty is remote in point of time, but it was a "serious violation of the motor vehicle laws." His offense of crossing the center line of the highway and striking another vehicle, inflicting several hundred dollars damage to the two cars, was committed on June 13, 1954, and is clearly of like character. Failure to observe the stop sign, standing alone, might not be sufficient to meet the requirements of item (5) of | 46-420 and constitute a "serious violation of the motor vehicle laws", but here *439 what was done meets the requirements of item (1) of | 46-420, for it constitutes the "unlawful operation of a motor vehicle" which "caused or contributed to an accident resulting in * * * serious property damage."
Though the offense of 1952 be rejected, clearly proof of the latter two violations justified suspension of Mozingo's licenses for the period ascertained by the Commissioner. Because no tragedy was caused or resulted from his violations does not relieve the licensee of the seriousness of his acts. We need not determine whether or not this court is empowered by | 46-424, Code 1950, to increase the period of suspension now sought by the Commissioner for an over-all appraisal of the evidence leads us to the conclusion that the period of suspension fixed by the Commissioner meets the ends of justice in this case.
The judgment of the trial court is reversed, and the Commissioner's order of August 3, 1955, which suspended Mozingo's operator's and chauffeur's licenses for thirty days is re-instated and restored to full force and effect.
Reversed and final judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260899/ | 632 F.Supp. 148 (1985)
Russel L. AHR, Plaintiff,
v.
Alan C. NELSON, Commissioner of the United States Immigration and Naturalization Service, and the Immigration and Naturalization Service, Defendants.
Civ. A. No. L-84-91.
United States District Court, S.D. Texas, Laredo Division.
November 27, 1985.
*149 David T. Lopez, Houston, Tex., for plaintiff.
Samuel G. Longoria, Asst. U.S. Atty., Houston, Tex., and William Eugene Storie, Asst. Atty. Gen., Tax Div., Austin, Tex., for defendants.
MEMORANDUM OPINION AND ORDER
KAZEN, District Judge.
This case is an appeal from a decision of the Merit Systems Protection Board (MSPB) which affirmed a decision of the Immigration and Naturalization Service, removing Plaintiff Ahr from his position as an Immigration Inspector because of off-duty misconduct culminating in a criminal conviction. Pending before the Court is Plaintiff's motion for summary judgment.
Plaintiff makes a two-pronged attack on the administrative decision. First, he claims that his discharge was in violation of his rights as a "handicapped individual" under the Rehabilitation Act of 1973, 29 U.S.C. § 791. Second, he alleges that the discharge was obtained without proper procedures, that the decision was unsupported by substantial evidence, and that the decision was arbitrary and capricious. See, 5 U.S.C. § 7703(c). The claim under the Rehabilitation Act makes this a "mixed" case, so that Ahr's appeal is properly filed in this Court rather than in the United States Court of Appeals for the Federal Circuit. Williams v. Department of the Army, 715 F.2d 1485 (Fed.Cir.1983).
There is virtually no dispute as to the underlying facts. On August 29, 1981, Ahr was on temporary assignment to the Cuban Processing Center at the United States Penitentiary in Atlanta, Georgia. At that time, he had been an Immigration Inspector for approximately four years. While off duty in College Park, Georgia, he had been swimming and drinking with a girlfriend. The two had an argument of some kind and Ahr took the girl home at her request. Driving back to his apartment at approximately 8:30 p.m., he saw a girl and, according to him, "at the time I couldn't have told you if she was 12 or 16 or 26, and to be quite frank with you, I think I for some reason thought she was my girlfriend." TR. 101. He then threw out of his car and towards the girl some undescribed "obscene material." In fact, the girl was not Ahr's girlfriend, but was a twelve-year-old female. Ahr was arrested and charged in the State Court of Fulton County, Georgia with a misdemeanor that he "knowing the obscene nature thereof, did give, exhibit, show and disseminate obscene photographs to another person." The charge was not actually filed until April 2, 1982. On May 12, 1982, Ahr pled guilty to the offense "in absentia". He was fined $750.00 and given a jail sentence of twelve months. The confinement, however, was suspended on condition that Defendant not again violate the laws of Georgia and "not to return to Ga." The judgment does not specify the length of time during which the suspended sentence and its accompanying conditions were to remain in effect.
Richard E. Norton, then the Deputy District Director for INS in San Antonio, first learned of Ahr's arrest in either late August or early September, 1981. He contacted Mitchell Britt, the INS Officer in Charge in Laredo, and directed Britt to place Ahr on restricted duty. This meant that Ahr performed all of his usual prior duties except that he was not allowed to work the midnight shift at the International Bridge nor work at the airport. The purpose of this restriction was to prevent him from working alone.
*150 On June 29, 1982, Norton addressed a letter to Ahr, proposing to remove him from his position. The letter briefly recited the basic facts surrounding Ahr's conviction and then essentially lodged three charges against Ahr:
1. That the "offense of which you have been convicted shows that your supervisor can no longer depend on you to be alone in the company of aliens, particularly minors";
2. That Ahr's criminal record could be used "to impeach your credibility as a witness at trial"; and
3. That the criminal record "could have a deleterious effect on the Service's reputation with other law enforcement agencies."
Ahr then invoked his right to present his version of the matter to Richard M. Casillas, the District Director of INS in San Antonio. On August 16, 1982, Casillas advised Ahr by letter that he had carefully considered Ahr's response but had decided that "your removal is warranted."
Ahr then appealed to the MSPB and an evidentiary hearing was conducted on May 27, 1983. After the hearing, on August 5, 1983, the Presiding Official rendered a written decision affirming the agency's action. The MSPB denied review on September 21, 1984.
The Court will first consider Ahr's general evidentiary attack on the administrative decision. In so doing, this Court is directed to set aside any agency action found to be unsupported by substantial evidence; arbitrary, capricious or an abuse of discretion; or obtained without procedures required by law. 5 U.S.C. § 7703(c). In considering whether the decision was "arbitrary and capricious," the Court must decide whether it was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441-42, 42 L.Ed.2d 447 (1974). "Substantial evidence" is more than a scintilla and less than a preponderance, and is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Green v. Schweiker, 694 F.2d 108, 110 (5th Cir.1982).
The Federal Government may discharge its employees only for such cause as will promote the efficiency of the service. 5 U.S.C. § 7513(a). Disciplinary action may be taken only on the basis of conduct that adversely affects the performance of the employee himself or of other employees; the agency may, however, consider any criminal conviction of the employee. 5 U.S.C. § 2302(b)(10). The statutory scheme requires the agency to establish a "vital nexus" between the alleged misconduct and the efficiency of the service. Bonet v. United States Postal Service, 661 F.2d 1071 (5th Cir.1981).
The finding of such nexus by the Presiding Official was primarily based on the testimony of Don L. Riding, the Supervisory Immigration Inspector in Charge at the Port of Laredo. Riding first testified that an Immigration Inspector is frequently alone with the person he is inspecting. He then expressed the conclusion that an Inspector convicted of disseminating obscene photographs to another person could not be "trusted" to be alone with an alien, particularly a female alien. TR. 13. He also explained that the INS Inspectors work with other agencies at the bridge, and that if any of those agencies learned that an Inspector had been convicted of such an offense, they "could withdraw the crossdesignation" arrangement that exists among the various agencies. TR. 15. On cross examination, however, Riding stated that the occasions when an inspector is alone with an alien would actually be "a very small percentage." TR. 24. He further expressed concern that if the general public were to hear of the conviction "it would not look good." TR. 25. He testified that he did not know Ahr personally, nor of his record. Omar Bangs, the Assistant District Director for Travel Control for the San Antonio District of INS, also expressed the conclusion that, because of the *151 conviction, he could not "trust or depend on Ahr in the company of female immigrants." TR. 39. He further opined that the conviction would have an adverse effect "on the reputation of the service" if it became known to other government agencies. TR. 40. Richard Norton also concurred that he could no longer "trust" Ahr. Richard Casillas, who made the initial termination decision, seemed more concerned with the effect of the conviction on Ahr's credibility as a witness in exclusion hearings. He also expressed concern with what he apparently viewed as an indefinite banishment of Ahr from the State of Georgia and finally opined that if other government agencies learned of the conviction it "would be very embarrassing to the service." TR. 70.
It is undisputed from the record that Ahr had never been the subject of any other disciplinary action and that he had never been accused of any misconduct on the job. Mitchell Britt, his immediate supervisor, considered Ahr one of the better inspectors at the Laredo Port, above average in intelligence. TR. 85. Britt stated that, had he not been directed to do so, he would not have placed Ahr on restricted duty even after his conviction. TR. 87. He further testified that he personally lost no confidence in Ahr nor, to his knowledge, did any fellow employee. TR. 88-89. Ahr's supervisor during his Atlanta assignment gave him a glowing letter of commendation, praising his intelligence and initiative. During his entire career, Ahr had never been rated less than satisfactory in any aspect of job performance.
Shortly after the Georgia incident, Ahr consulted a psychiatrist, C.C. Barnhart of San Antonio, Texas. Casillas acknowledged that he had read a letter report of August 3, 1982 from Dr. Barnhart prior to making his decision. Among other things, Dr. Barnhart opined that Ahr's conduct was caused by a psychiatric disorder of neurotic rather than psychotic proportions. Dr. Barnhart stressed that Ahr's condition did not involve the potential act of engaging in sexual activity with a female victim and that the risk of creating any physical danger was "extremely minimal". Dr. Barnhart expressed the opinion that, because of Ahr's dedication to his therapy, he would not likely revert to such conduct in the future and should be able to continue his duties "without difficulty".
When a federal employee's alleged misconduct has occurred off duty, a reviewing court must require the federal agency to demonstrate that the employee's removal would promote the efficiency of the service. Bonet v. United States Postal Service, supra. Although the Fifth Circuit has specifically rejected the proposition that some off-duty misconduct is so obnoxious that it demonstrates a per se nexus with the efficiency of the service, Id. at 1077,[1] the INS appears to have taken a per se approach in this case. The officials who testified in support of Ahr's discharge based their opinions solely on the fact of his misdemeanor conviction. They had very little knowledge and seemingly even less interest in his work record, either before or after the incident, and virtually no weight was given to the opinion of the psychiatrist whom Ahr consulted. For that matter, apparently no weight was given to the opinion of Ahr's immediate supervisor, Mitchell Britt. The decision to discharge Ahr was based entirely on the conclusory testimony that, solely because of his conviction, Ahr could no longer be "trusted" and that his conviction, if publicized, would cause a loss of confidence in INS by other governmental agencies and the general public. However, a federal agency cannot satisfy its burden of proof "by use of unsupported, general assertions that such action is necessary to maintain the public confidence. To permit otherwise would be *152 to render nugatory the protections afforded the federal employee by the imposition of a standard for removal which requires a connection between employee misconduct (especially when off-duty and non-work related) and the job." Bonet, 661 F.2d at 1076-77.
Here, there is simply nothing to support the conclusion that because Ahr once threw undescribed "obscene" material at a female while off duty, he would be a threat to female aliens while on duty. The officials who claimed they could no longer "trust" Ahr never even articulated what it is they feared he would do to a female alien.[2] While this Court certainly does not condone the dissemination of pornographic material under any circumstances, that offense would not reasonably be equated in severity with the offense of indecency with a child, the offense involved in Bonet. The argument that a man who on one off-duty occasion distributes pornographic material to a female can no longer be "trusted" in the presence of females thus seems even less valid than the rejected argument in Bonet that the indictment of a postal official for indecency with a child would undermine the public trust in postal employees necessary for the efficient collection and delivery of the mails.
The concern of Riding, Casillas, and others of potential embarrassment to the INS also cannot be accepted as the equivalent of promoting the efficiency of the service. Norton v. Macy, 417 F.2d 1161, 1167 (D.C. Cir.1969). Further, there was no evidence that Ahr's conviction actually had much potential to cause such embarrassment. There was no evidence that Ahr's misdemeanor conviction received any publicity even in Georgia, much less in Texas, and there was no indication in the court records that Ahr was even a federal employee. Moreover, as earlier observed, the charges against Ahr apparently lay dormant for over seven months before even being filed.[3] The assertion that other federal agencies would henceforth refuse to work with Ahr is even more tenuous. No evidence was introduced to support this thesis. No evidence was introduced to establish that any other federal agency either knew or cared of Ahr's conviction, either before or after it occurred. No one from any other agency testified that Ahr's conviction, standing alone, would cause them to cease the practice of cross-designation, nor were any written policies or regulations to that effect introduced. The record simply contains the unsupported assertions of certain INS officials that all of this "could" happen.
The two other specific concerns articulated by the INS likewise fail to support the agency's action. The fear that Ahr's misdemeanor conviction could be used against him for impeachment purposes in federal tribunals was specifically abandoned by Casillas as being erroneous and was essentially discarded in the Presiding Official's written opinion.
The concern that Ahr could never again return to the State of Georgia and thus would be unable to receive further training at the Center in Glencoe, Georgia likewise cannot be considered. This accusation caused Ahr to attack the agency's decision on procedural grounds because he insists that it was not stated in Richard Norton's original discharge letter of June 29, 1982. The Court agrees. While that letter does recite the conditions placed upon Ahr, it does not state that the prohibition against returning to Georgia was a reason for the discharge. The MSPB essentially concedes as much, because in its opinion of September 21, 1984, the Board specifically notes that the travel prohibition was not used as *153 a basis for finding nexus but was used only to determine the appropriate sanction. Taking that opinion at face value, therefore, the alleged travel restriction cannot be considered even a scintilla of evidence to establish nexus. Parenthetically, this Court would question the weight of that restriction for any purpose. To the extent that the Georgia court purported to banish Ahr beyond the limits of the State of Georgia, the condition would appear to have been in direct violation of Article I, Section 1, Para. XXI, of the Georgia Constitution. Moreover, while the sentence does not specify the duration of the condition, it is doubtful that the condition could have been effective for longer than the twelve-month period of the sentence itself, which means it would have expired in May 1983. In any event, the alleged travel restriction has no bearing on nexus, as the agency itself concedes.
In summary, therefore, this is a case where Ahr was discharged solely and only on the basis of one misdemeanor conviction, for an incident occurring off duty. There has never been the slightest suggestion of any on-duty misconduct on his part, either before or after the conviction. There was never any publicity or notoriety about the conviction. His immediate supervisor believed that the conviction had no bearing whatever on his job performance, and his job performance has always been at least satisfactory and sometimes exemplary. Two specific concerns about the conviction, namely that it could be used for impeachment purposes and that it would prevent Ahr from receiving future training in the State of Georgia, have no merit and were both specifically abandoned by the agency as grounds for discharge. The only evidence establishing a nexus between this conviction and the efficiency of the service is the unsupported, generalized conclusion by several INS officials that Ahr can never again be trusted in the company of female aliens and that other federal agencies might possibly object to having their employees work with him. This Court is convinced that the agency's decision is not supported by substantial evidence and that the agency has made a clear error of judgment.
For the foregoing reasons, Plaintiff's motion for summary judgment is GRANTED. Because of this ruling, the Court need not and will not consider Plaintiff's claim under the Rehabilitation Act. As Plaintiff has requested, the Court will not at this time attempt to determine the extent of the relief to which Plaintiff might be entitled. The parties are DIRECTED to confer in this regard and report to the Court on or before December 31, 1985 as to what agreement, if any, has been reached and what further proceedings, if any, are required.
NOTES
[1] The Court recognizes that the Court of Appeals for the Federal Circuit would apparently apply a per se rule for nexus, at least in cases involving "egregious circumstances." Hayes v. Dept. of the Navy, 727 F.2d 1535, 1539 (Fed.Cir.1984). However, this Court feels constrained to follow Fifth Circuit precedent and prefers the Bonet approach in any event. Moreover, even under the Federal Circuit approach, this Court would not place Ahr's crime within the "egregious" category.
[2] The Court acknowledges the evidence in the present record that Ahr has had difficulties with exhibitionism in earlier years, before his employment with INS. This fact formed no part of the agency's charges or decision, however, and will therefore not be considered here.
[3] Ahr now intimates that the charges might never have been filed had the INS not contacted the state prosecutor and urged a prompt disposition of the charges. An affidavit from Ahr's Georgia attorney was offered on that point. This Court will not attempt to decide that question, as it is unnecessary to do so. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318662/ | 94 Ga. App. 373 (1956)
94 S.E.2d 617
CRUISE
v.
CITY OF ROME.
36351.
Court of Appeals of Georgia.
Decided September 21, 1956.
*375 Matthews, Maddox, Walton & Smith, for plaintiff in error.
Chastine Parker, Solicitor-General, Horace T. Clary, Parker Clary, Kent & Grubbs, contra.
TOWNSEND, J.
The evidence demands the conclusion that the ordinance when applied to certain crossings in the City of Rome will in effect prohibit the operator of a locomotive engine from giving adequate warning to persons who may be in, near, or about to enter a place of danger upon the tracks of the locomotive engine he is operating, and denies such persons proper protection from injury and such operator from the right lawfully to exercise ordinary care toward such persons and thus protect himself and his employer from liability. Acts of a municipal body under a power vested in it are conclusive on the courts unless so unreasonable or oppressive of the rights of the citizen as to constitute an attempted abuse rather than a legtitimate use of the power. McMaster v. City of Waynesboro, 122 Ga. 231 (50 S. E. 122). But the reasonableness of an ordinance is a question of law; municipal ordinances are reviewable by the courts as to reasonableness, and if found to be unreasonable they will be held void. Great Atlantic & Pacific Tea Co. v. City of Columbus, 189 Ga. 458 (6 S. E. 2d 320). An ordinance which infringes upon the common or statute law of the State is void. Haywood v. Mayor &c. of Savannah, 12 Ga. 404 (4). The operation of a legally chartered railroad is a lawful business, and the railroad corporation, like any other real or artificial person in the State, has not *376 only the duty to exercise ordinary care for the protection of itself and others (Pollard v. Savage, 55 Ga. App. 470, 474 (190 S. E. 423), but the right to do those acts which are necessary in the exercise of such degree of care. This right it acquires under the common law of force in this State, and under art. 1 sec. 1, par. 2 of the Constitution of Georgia (Code, Ann., § 2-102) which provides as follows: "Protection to person and property is the paramount duty of government and shall be impartial and complete." A municipality is a political division of the State, having for its object the administration of a portion of the power of government delegated to it for that purpose. Penick v. Foster, 129 Ga. 217 (58 S. E. 773, 12 L. R. A. (NS) 1159, 12 Ann. Cas. 346). The municipality, like the State as a whole, therefore owes as its paramount duty to the citizen the protection of his person and property. Such duty is not fulfilled where the city passes an ordinance the effect of which is to deny to a citizen the right to protect his life and property, the property of his employer, and the lives and property of third persons in the only way in which, under the uncontradicted evidence in the case, such protection may be given in an adequate manner under certain circumstances. While nothing in the record indicates the reason behind the enactment of the ordinance, it may be assumed that it was done for the purpose of cutting down noise within the city limits, which noise might, if excessive, constitute a nuisance. But, as pointed out in City of Acworth v. W. & A. R. Co., 159 Ga. 610, 622 (126 S. E. 454), "the installation of devices by railway companies for the safety and protection of persons and property, which pass over their crossings, is legitimate and commendable" and an ordinance which in effect constitutes such a safety device a "nuisance" under all conditions and circumstances without exception and as a matter of law is so unreasonable and arbitrary as to be void. Accordingly, the ordinance in question is void as contrary to the public policy and general welfare of the public, and the conviction is without authority of law.
The trial court erred in overruling and dismissing the petition for certiorari.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318664/ | IN RE: J.W.B.G., III, & T.F.A.
No. COA09-177
Court of Appeals of North Carolina.
Filed June 2, 2009
This case not for publication
Lauren Vaughan for Iredell County Department of Social Services petitioner appellee.
Hunton & Williams, by Jason S. Thomas, for guardian ad litem.
David A. Perez for respondent-mother appellant.
ROBERT N. HUNTER, JR., Judge.
Respondent-mother appeals from orders terminating her parental rights to juveniles J.W.B.G., III, ("J.G.") and T.F.A. ("T.A."). The trial court also terminated the parental rights of the juveniles' fathers, but they are not parties to this appeal. Respondent contends that the trial court's conclusion that grounds existed to terminate her parental rights is not supported by valid findings of fact based on the evidence introduced at the termination hearing, and that the trial court abused its discretion when it concluded it was in the juveniles' best interests to terminate her parental rights. We affirm.
The Iredell County Department of Social Services ("DSS") first came into contact with respondent in 1998, after she left J.G.unattended in her car in a shopping center parking lot and was required to attend parenting classes. In 1999, respondent brought J.G. to DSS to relinquish custody of him, and DSS placed J.G. in foster care. Although respondent retained custody of J.G. at that time, by 2003 respondent had an increasingly difficult time parenting J.G. and began to allow him to live with one of his teachers.
On 28 October 2005, respondent left J.G. and T.A. home alone while she worked. Respondent refused day care and other services, and asked DSS to place the juveniles in foster care. On 31 October 2005, respondent again requested that the juveniles be placed in foster care. DSS filed petitions alleging neglect and obtained nonsecure custody of the juveniles on 1 November 2005.
Respondent continued to assert that she did not want custody of J.G. On 13 December 2005, however, respondent agreed to a home services agreement, which required her to obtain mental health treatment, obtain a psychological evaluation, complete parenting classes, maintain appropriate housing and employment, demonstrate monthly budgeting skills, and follow all recommendations.
On 31 January 2006, respondent stipulated that the juveniles were neglected, and the court ceased reunification efforts. J.G. still lived with the teacher, and respondent failed to visit the juveniles regularly and made inconsistent statements about whether she wanted to regain custody.
Thereafter, respondent sought treatment from two different therapists, and one of her therapists reported she was making progress in June of 2006. As a result, the permanent plan for the juveniles was changed to a concurrent plan of reunification with respondent and guardianship.
In September 2006, respondent began attending counseling with the juveniles. Respondent attended monthly sessions in October and November, but cancelled the December session. In March of 2007, the court permitted a trial home placement. Around that time, respondent obtained a commercial driver's license and took a long-distance trucking job that required her to be gone for one week. When respondent returned, she refused to continue counseling. The trial placement ended in May 2007, after respondent got into an argument with J.G. and told the juveniles that she hated them and wished she had not attempted to reunite with them. J.G. ran away from home, and respondent made no effort to find him until the next day. After the juveniles returned to foster care, respondent did not visit them. Respondent had no contact with the juveniles between May and July of 2007, and then again from July through December 2007.
At a hearing on 3 July 2007, the court changed the permanent plan back to guardianship for adoption for T.A. and to guardianship for J.G. Respondent resumed counseling, but did not like other people "in her business" and still "hated" everyone. Respondent acted annoyed and did not interact with the juveniles during visits. As of the time of the termination hearing, respondent had not seen the juveniles since February of 2008. While in foster care, T.A. improved her behavior and became attached to her foster family, which expressed interest in adopting her. At the same time, J.G. began to visit a foster family and requested placement in that home. J.G.'s permanent plan was changed to guardianship for adoption.
At the termination hearing, respondent testified that she attended therapy and worked part-time. A social worker testified that DSS could not monitor respondent's progress because the telephone numbers she provided were either disconnected or incorrect, and that respondent failed to contact DSS to update them on her progress. The trial court received into evidence all of the prior orders and other documents in the juveniles' files.
The trial court found that grounds existed to terminate respondent's parental rights as to each juvenile pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) (2007), because respondent had failed to make reasonable progress toward correcting the conditions that led to the removal of the juveniles from her home. The trial court also concluded that it was in the best interests of each juvenile to terminate respondent's parental rights. Respondent-mother appeals.
Respondent's first contention is that the trial court's conclusion that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) to terminate her parental rights is not supported by findings of fact that are supported by competent evidence. Respondent specifically assigns error to findings of fact 9 (e, f, h, j, k, p, r, u, x-z), 11, 12, 16, and 19 (e, f, h, j). We disagree.
In termination of parental rights cases, a trial court's findings of fact must be supported by clear, cogent, and convincing evidence. In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6 (2004). That "standard is greater than the preponderance of the evidence standard required in most civil cases, but not as stringent as the requirement of proof beyond a reasonable doubt required in criminal cases." In re Montgomery, 311 N.C. 101, 109-110, 316 S.E.2d 246, 252 (1984).
In the adjudicatory stage, the burden is on the petitioner to prove that at least one ground for termination exists by clear, cogent, and convincing evidence. N.C. Gen. Stat. § 7B-1109(f) (2007); In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). Review in the appellate courts is limited to determining whether clear and convincing evidence exists to support the findings of fact and whether the findings of fact support the conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal dismissed, disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001). "'[F]indings of fact made by the trial court . . . are conclusive on appeal if there is evidence to support them.'" In re H.S.F., 182 N.C. App. 739, 742, 645 S.E.2d 383, 384 (2007) (quoting Hunt v. Hunt, 85 N.C. App. 484, 488, 355 S.E.2d 519, 521 (1987)). Where a finding of fact is not challenged by the appellant, it is presumed to be supported by competent evidence. See In re S.D.J., ___ N.C. App. ___, ___, 665 S.E.2d 818, 824 (2008).
A court may terminate a respondent's parental rights if it finds
[t]he parent has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile. Provided, however, that no parental rights shall be terminated for the sole reason that the parents are unable to care for the juvenile on account of their poverty.
N.C. Gen. Stat. § 7B-1111(a)(2).
"Willfulness under [N.C. Gen. Stat. § 7B-1111(a)(2)] means something less than willful abandonment, and `does not require a finding of fault by the parent.'" In re S.N., ___ N.C. App. ___, ___, 669 S.E.2d 55, 59 (2008) (quoting In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 398 (1996)).
In this case, even setting aside the specific findings of fact challenged by respondent, the trial court made findings sufficient to support its conclusion that grounds existed to terminate respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2). The trial court found that the juveniles were originally removed from respondent's home on 31 October 2006, and after returning for a two-month trial period, were returned to DSS custody on 25 May 2007. Respondent failed to properly supervise the juveniles and refused to accept day care or other services for the juveniles. Although there were periods of time during which respondent's situation and attitude toward the juveniles improved, those periods were offset by periods when the situation deteriorated, ultimately leading up to the termination hearing. Over the period of DSS's involvement, respondent repeatedly expressed a desire to relinquish her parental rights, and the trial court observed that respondent's attitude toward the juveniles remained "flat" at the time of the hearing. The trial court found that at a May 2008 hearing, respondent failed to provide any verification that she was working on her case plan. All of these findings are supported by the evidence elicited at the hearing and validate the trial court's conclusion that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) to terminate respondent's parental rights. Accordingly, this argument is without merit.
Respondent also contends that the trial court abused its discretion when it concluded that it was in the juveniles' best interests to terminate respondent's parental rights. We disagree.
Once the trial court determines that a ground for termination exists, it moves on to the disposition stage, where it must determine whether termination is in the best interest of the child. N.C. Gen. Stat. § 7B-1110(a) (2007). The court's decision at this stage is reviewed for an abuse of discretion. In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002).
In determining the best interests of the child, the court must consider:
(1) The age of the juvenile.
(2) The likelihood of adoption of the juvenile.
(3) Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.
(4) The bond between the juvenile and the parent.
(5) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.
(6) Any relevant consideration.
N.C. Gen. Stat. § 7B-1110(a)(1)-(6).
In this case, the trial court's orders demonstrate that it considered the relevant factors and made a proper determination that termination was in the juveniles' best interests. The trial court made a finding addressing each juvenile's age. The trial court found that each child was adoptable, although J.G. expressed some reluctance about adoption. Each juvenile had spent about one-third of his or her life in foster care and had a minimal bond with respondent. Under the circumstances, we find that the trial court appropriately exercised its discretion when it concluded that it was in the juveniles' best interests to terminate respondent's parental rights.
Affirmed.
Judges ERVIN and BEASLEY concur.
Reported per Rule 30(e). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2565605/ | 4 N.Y.3d 855 (2005)
PEOPLE v. MAYO
Court of Appeals of the State of New York.
April 5, 2005.
Application in criminal case for leave to appeal denied. (Ciparick, J.). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318675/ | 94 Ga. App. 217 (1956)
94 S.E.2d 109
GILBERT
v.
THE STATE.
36288.
Court of Appeals of Georgia.
Decided July 16, 1956.
*218 T. E. Miller, for plaintiff in error.
TOWNSEND, J.
The dying declaration of the deceased which was properly introduced in evidence was as follows: "A doctor won't do me any good because I'm killed. Gilbert shot and killed me. Gilbert shot first but I shot the gun out of his hand." The defendant's statement and the testimony of his son and another witness is that the three were in the woods rounding up some hogs and hunting a dog; that the deceased came up and asked what business they had in those woods and he told them; that he "told Mr. Gilbert to wait there 5 minutes" or "dared him to wait until he could go home and come back"; that the deceased went off and the defendant and his witnesses walked over a mile back to their truck and were getting in when the deceased returned with a shotgun; that the son of the defendant stood in front of him to protect him and the deceased stated, "If you don't move I will blow both of your God damned brains out"; that he shot first, and then the defendant shot. A sister of the deceased who was not an eyewitness but heard the shots testified that the defendant shot first. The defendant was wounded in one hand, whether the hand in which he held the weapon or not is not shown by the record.
If manslaughter is involved at all under these facts, it can only be involved under the theory of mutual combat. See Bailey v. State, 148 Ga. 401 (96 S.E. 862); Daniels v. State, 157 Ga. 780 (4) (122 S.E. 223). As to what is involved in mutual combat, it is held in Langford v. State, 212 Ga. 364, 366 (93 S.E.2d 1) as follows: "Mutual combat exists where there is a fight with dangerous or deadly weapons, and when both parties are at fault and are willing to fight because of a sudden quarrel. Code § 26-1014; Harris v. State, 184 Ga. 382, 390 (191 S.E. 439); Brannon v. State, 188 Ga. 15 (1) (2 S.E.2d 654); Watson v. State, 66 Ga. App. 242 (17 S.E.2d 559). The essential ingredient, mutual intent, in order to constitute mutual combat, must *219 be a willingness, a readiness, and an intention upon the part of both parties to fight. Reluctance, or fighting to repel an unprovoked attack, as in this case, is self-defense and is authorized by the law, and should not be confused with mutual combat. It is a well-settled principle of law that an aggressor will not be allowed, under the law, to mitigate his crime on the theory of mutual combat when it appears that his victim had no desire to fight, and intended to fight only to the extent that a defense of his person against an unprovoked assault was necessary." (Italics ours).
In this case it appears that the defendant had no desire to fight, and intended to fight only to the extent that a defense of his person and that of his son was necessary. A homicide under such circumstances is justifiable. See Code §§ 26-1011, 26-1012, and citations thereunder.
The trial court erred in denying the motion for a new trial.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318644/ | 723 P.2d 1049 (1986)
80 Or. App. 626
STATE of Oregon, Respondent,
v.
Brian Keith BAUMEISTER, Appellant.
STATE of Oregon, Respondent,
v.
Jeffery L. BAUMEISTER, Appellant.
85-0367 (D01), 85-0367 (D02); CA A36520.
Court of Appeals of Oregon.
Argued and Submitted January 31, 1986.
Decided August 13, 1986.
Reconsideration Denied October 17, 1986.
*1050 Ernest E. Estes, Deputy Public Defender, Salem, argued the cause for appellants. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Jeff Bennett, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.
Before RICHARDSON, P.J., and WARDEN and NEWMAN, JJ.
RICHARDSON, Presiding Judge.
In this consolidated appeal, defendants appeal their convictions for burglary in the first degree. ORS 164.225. Their sole contention is that the trial court erred in denying their motion to suppress evidence that the police seized from defendant Jeffery Baumeister's car without a search warrant. We hold that the police searched the car and seized the evidence with his consent and affirm.
Defendants had been arrested as suspects in the burglary for which they were convicted, and Jeffery was in custody at the police station when a police officer requested permission to search his car. He signed a consent form giving permission to do so. Immediately before the officer requested the permission, he had read Jeffery the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and had asked him whether he wished to talk.[1] Jeffery said: "No." Approximately one and one-half to two hours before that, the police officers who had originally stopped and arrested defendants had read them Miranda warnings. Jeffery had at that time said that he did not want to speak to the police, and there is some evidence that he said that he would not speak to the police until he had spoken to an attorney.
Defendants argue that, after Jeffery invoked his right to silence and right to counsel, the police were required to honor those requests and were foreclosed from asking him for permission to search his car. See Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981); Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975). They contend that that request and the use of the evidence found during the search violated his right against compelled self-incrimination guaranteed by Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the federal constitution.
Those provisions protect the right against testimonial self-incrimination. Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966); State v. Cram, 176 Or. 577, 160 P.2d 283 (1945). A defendant's consent to search is not an incriminating statement subject to suppression for Miranda violations. Cody v. Solem, 755 F.2d 1323 (8th Cir.), cert. den. ___ U.S. ___, 106 S. Ct. 104, 88 L. Ed. 2d 84 (1985); Smith v. Wainwright, 581 F.2d 1149 (5th Cir.1978); United States v. Lemon, 550 F.2d 467 (9th Cir.1977); See also 2 La Fave, Search and Seizure: A Treatise on the Fourth Amendment 671-74, § 8.1(j) (1978).
" * * * Simply put, a consent to search is not an incriminating statement. [The defendant's] consent, in and of itself, is not evidence which tends to incriminate him. While the search taken pursuant to that consent disclosed incriminating evidence, this evidence is real and physical, not testimonial. * * * " Cody v. Solem, *1051 supra, 755 F.2d at 1330. (Citations omitted.)
Jeffery's consent to the search was not in itself an incriminating statement[2] and the admission of evidence obtained in that search did not violate either defendant's state or federal constitutional rights.[3]
Affirmed.
WARDEN, Judge, specially concurring.
I concur because the police had probable cause to search defendant's car and because the recently-discovered automobile exception to the warrant requirement of Article I, section 9, of the Oregon Constitution excuses their failure to obtain a warrant. State v. Brown, 301 Or. 268, 721 P.2d 1357 (1986); State v. Bennett, 301 Or. 299, 721 P.2d 1375 (1986). Whether defendant could properly consent to the search after requesting a lawyer is therefore irrelevant. I do not necessarily agree with my colleagues' resolution of that issue. Neither do I think that it was necessary for them to discuss it. See State v. Bradbury, 80 Or.App. 613, 723 P.2d 1051 (decided this date) (Warden, J., specially concurring).
NOTES
[1] Article I, section 12, of the Oregon constitution also requires that Miranda warnings be given. State v. Kell, 77 Or.App. 199, 712 P.2d 827 (1986); State v. Smith, 70 Or.App. 675, 691 P.2d 484 (1984), rev. allowed 298 Or. 704, 695 P.2d 1371 (1985).
[2] In State v. Williams, 248 Or. 85, 432 P.2d 679 (1967), the court, in a 4-3 decision, held that, under the Fifth Amendment, a defendant who is in custody and is a focal suspect in a case must be informed of his constitutional rights before evidence seized pursuant to his consent to search is admissible at trial. The court stated: "In effect, the request to search is a request that defendant be a witness against himself which he is privileged to refuse under the Fifth Amendment." 248 Or. at 93, 432 P.2d 679. Neither party cites Williams, perhaps because it has been significantly undercut, if not effectively overruled. In United States v. Watson, 423 U.S. 411, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976), and Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), the Supreme Court rejected the argument that a consent search is unlawful unless the police have informed the person in custody of his right to refuse to consent. In State v. Flores, 280 Or. 273, 570 P.2d 965 (1977), the court rejected the same argument as a matter of state constitutional law. The majority quoted with approval Judge Holman's dissent in Williams, in which he had argued that Miranda and Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), should not apply to searches and seizures. 280 Or. at 281-82, 570 P.2d 965. In the light of the later cases, we do not believe that the quoted statement from Williams is controlling in this case.
[3] Defendant does not argue that his consent was involuntary. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318710/ | 94 Ga. App. 351 (1956)
94 S.E.2d 612
ATLANTA GAS LIGHT COMPANY
v.
BROWN (two cases).
36283, 36284.
Court of Appeals of Georgia.
Decided September 20, 1956.
*354 Reed & Ingram, for plaintiff in error.
Claude M. Hicks, J. Douglas Henderson, contra.
CARLISLE, J.
1. While we are fully aware of the beneficent and salutary rule, to which this court scrupulously adheres in proper cases, that ordinarily questions of diligence and negligence, including proximate cause, are for the jury, we also recognize it to be the duty of the court to determine those questions in clear, palpable, and indisputable cases. Evans v. Georgia Northern R. Co., 78 Ga. App. 709, 712 (52 S.E.2d 28), and cit.; and this latter rule is frequently enforced as a result of the necessary application of the proper rules of construction, to pleadings. "It is an elementary rule of construction, as applied to a pleading, that it is to be construed most strongly against the pleader; and that if an inference unfavorable to the right of a party claiming a right under such a pleading may be fairly drawn from the facts stated therein, such inference will prevail in determining the rights of the parties." Krueger v. MacDougald, 148 Ga. 429 (1) (96 S.E. 867); Slade v. Barber, 200 Ga. 405, 412 (37 S.E.2d 143); McEntire v. Pangle, 197 Ga. 414 (29 S.E.2d 503).
"If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover." Code § 105-603.
From the petition, and under an application of the foregoing rules of law, it is apparent that admitting the truth of all the allegations of negligence attributed to the defendant, the plaintiff's son could have avoided the occurrence which resulted in his death by the exercise of ordinary care for his own safety after *355 he had, or in the exercise of ordinary care, should have, discovered the defendant's alleged negligence.
The plaintiffs' son is alleged to have been 20 years of age at the time of his death, and in the absence of an allegation to the contrary he will be presumed to have been mentally responsible, and to be as responsible as an adult is for his own safety (Youngblood v. Henry C. Beck Co., 93 Ga. App. 451, 454, 91 S.E.2d 796, and cit.; Moore v. Seaboard Air Line R. Co., 30 Ga. App. 466, 118 S.E. 471; Thomas v. Georgia Granite Co., 140 Ga. 459 (1), 79 S.E. 130) and an ordinarily prudent person in the possession of all of his faculties is certainly expected, in driving an automobile upon the highways and streets of today, to use his sense of sight, if not of hearing, to determine whether there is present any of those dangers upon the streets and highways which a person of ordinary intelligence would reasonably apprehend. See in this connection Western & A. R. Co. v. Ferguson, 113 Ga. 708, 713 (39 S.E. 306, 54 L. R. A. 802). The continual, if not continuous, necessity for making excavations in and along the streets and highways of today, and the concomitant strowing and piling of earth in and along the streets and highways for the purpose of laying and repairing water, gas, electrical, and sewerage mains, and the repair of the streets and highways themselves, is so common an occurrence as to be reasonably anticipated by us all, especially those of us who drive or ride in motor vehicles. Moreover, common prudence requires that the drivers of motor vehicles be constantly vigilant in their lookout ahead for any and all objects and obstructions which may impede their progress along the streets and highways. The street upon which the plaintiffs' son met his death is alleged to have been a paved one in the City of Marietta 23 feet wide. Such a street is obviously wide enough for the passage of two lanes of traffic in the absence of any allegation to the contrary. The plaintiffs' son is alleged to have been traveling at a speed of 25 miles per hour southward upon this street at 8 a. m. on the morning of January 25, 1955, and as the sun rose, on that date at 6:59 a. m., in the absence of allegations to the contrary, we will presume that the day was lighted and clear and that there was ordinary visibility along the street at the time of the occurrence which resulted in the death of the plaintiffs' son. It is alleged that the defendant had piled dirt *356 almost over the entire street in such a manner as to cause the truck which the plaintiffs' son was driving to be wrecked and pin him beneath it. It is alleged that in addition to piling dirt in the street, the defendant had, for a distance of 100 feet north of the point of impact accumulated loose dirt on the street which caused the right wheels of the truck to ride higher than the left wheels as the plaintiffs' son continued in his right-hand lane of the street, and that this loose dirt caused the truck to skid into "the dirt pile" and to turn over into the excavation alongside the street on his right-hand side. It is further alleged that there was nothing in the street to warn the plaintiffs' son of these conditions and that 400 feet north of the excavation and dirt pile there was a curve which obscured his view of the dirt piled in the street and the excavation. Construing these allegations together and against the pleaders, the curve was 400 feet north of the conditions existing in the street and for a distance of 400 feet the conditions in the street were necessarily within his view, as it is nowhere alleged that he could not see for a distance of 400 feet ahead of him or that the conditions in the street were obscured by optical illusion or otherwise. It is not alleged that the plaintiffs' son at any point before the truck skidded and struck the dirt pile reduced his speed of 25 miles per hour and we will presume in the absence of such an allegation that he continued at that speed unabated. As it is alleged that he traveled the last 100 feet of the 400 feet from the curve over the loose dirt on the pavement we must assume, since his right wheels were riding higher than his left wheels in the right lane, that he was absolutely aware of the presence of the accumulated dirt for that distance and since the right wheels were riding higher than the left ones that there was less dirt to the left of his path of travel. No reason is given why he was unable to turn aside into the left lane of the street to avoid the pile of dirt which he struck. No reason is assigned why he was unable to stop the truck after he necessarily saw the obstructions in the street.
From all this the only reasonable conclusion to which we can come is that the plaintiffs' son was the author of his own misfortune in ploughing headlong at an unabated speed into a clearly visible obstruction in the street, when in the exercise of ordinary prudence he could have avoided the obstruction by stopping his *357 vehicle or by turning aside to avoid striking it. Since under the rules of law stated above, the plaintiffs' son, were he alive, could not recover, his parents, the plaintiffs, may not. Youngblood v. Henry C. Beck Co., 93 Ga. App. 451, 454. Accordingly, the trial court erred in overruling the defendant's general demurrers to the petitions.
Judgments reversed. Gardner, P. J., and Townsend, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318701/ | 198 Va. 397 (1956)
NORFOLK & WESTERN RAILWAY COMPANY, A CORPORATION
v.
OTTO FLETCHER.
Record No. 4551.
Supreme Court of Virginia.
September 4, 1956.
C. H. Combs (F. H. Combs, Combs, Combs & Street, on brief), for the plaintiff in error.
W. Clyde Dennis, for the defendant in error.
Present, All the Justices.
1. Plaintiff received a verdict for personal injuries and property damage sustained when his automobile was struck by one of defendant's trains at a grade crossing. The engineer and fireman testified that warning signals were given as the train approached the crossing; witnesses for plaintiff who were in a position to hear any signals given testified there were none. From such evidence the jury was warranted in finding that timely signals were not given.
2. Though the statutory duty to give warning was inapplicable because the crossing was not of a public highway and lay within an incorporated town, the crossing was maintained by the railway for use of the public and was in constant use. In such case there may be a common law duty to warn of approaching trains; and it was for the jury to decide whether defendant's employees were negligent in not giving adequate warning.
3. Plaintiff testified that though he looked in both directions he did not see the train until he was on the track, his view being obscured by a mountain. But the evidence clearly proved the train, approaching at slow speed, was visible at least 250 feet away and that plaintiff either drove onto the track without looking or did not look effectively. He was therefore contributorily negligent as a matter of law and thus precluded from recovery, the doctrine of comparative negligence being inapplicable to the facts of the case.
Error to a judgment of the Circuit Court of Buchanan county. Hon. Frank W. Smith, judge presiding. The opinion states the case.
EGGLESTON
EGGLESTON, J., delivered the opinion of the court.
Otto Fletcher, hereinafter referred to as the plaintiff, has recovered a verdict and judgment of $5,000 against the Norfolk & Western Railway Company for personal injury and property damages sustained when a car which he was driving was struck by an engine operated by the Railway Company at a private crossing in the Town of Grundy in Buchanan county. The allegation of negligence was that the employees of the Railway Company failed to give a proper and timely warning of the approach of the train. On appeal the Railway Company challenges the sufficiency of the evidence to sustain the verdict, claiming specifically that there is no showing that its employees were guilty of any negligence which proximately caused the collision, and that even if they were, the evidence shows that the plaintiff was guilty of contributory negligence as a matter of law which bars his recovery.
While a map made by the office of the chief engineer of the Railway Company shows that the railroad runs approximately north and south at the scene of the accident, it is generally referred to by the witnesses as running east and west and we will so treat it. Going west, as the train was on this occasion, the main-line track approaches the crossing on a sharp curve to the left around a mountain. On the north side of the main line is a sidetrack and beyond this to the north are several industries located on the right of way of the Railway Company and operated by lessees of that company. These industries are reached by a dirt road which runs eastwardly along the south side of the railroad tracks, then turns sharply to the north and crosses the railroad tracks at a right angle. While this dirt road is not a public highway the undisputed evidence shows that it is frequently used by those going to and from the several industries and the Railway Company maintains the crossing for such use. The Railway Company maintains at the crossing no flagman, gates, or warning device to signify the approach of its trains. As the driver *399 of a car approaches the crossing from the south his view to the right or east, the direction from which the train came, is obscured until he passes beyond the base of the mountain.
On December 23, 1953, about 5:00 p.m., the plaintiff, Fletcher, accompanied by his wife, drove along the dirt road toward the crossing. It was his purpose to cross the tracks at the crossing to transact business at one of the industrial plants. About 125 to 150 feet west of the crossing Fletcher stopped and talked to H. C. McElroy, the manager of the plant which he (Fletcher) intended to visit. After this conversation Fletcher continued along the road, he said, at a speed of about five miles per hour toward the crossing. According to his testimony, when he was "about 20 feet" from the track he looked "both ways" but saw no train. He slowed down because, he said, his car "was real low and I was afraid it would hang up" on the crossing.
Fletcher further testified on direct examination that "about the time I got upon the track my wife saw it (the train) and hollered at me." When asked by his counsel, "When was the first you heard that train was coming?" his reply was, "When my wife told me there was one coming." Prior to this, he said, he had not "heard" any whistle or bell, although he did not "mean to say" that such signals were not given.
Immediately upon hearing the warning of his wife, Fletcher put the car in reverse and attempted to "back off" the track but was unable to do so before the engine struck his car.
The plaintiff's wife testified that the car was on the track when she first saw the train. When asked where the train was, and how far from the car, when she first saw it, her reply was, "I don't know, I just saw it, I don't remember." At any rate, as soon as she saw the train she warned her husband and that was the first he knew of its approach.
At the time of the accident the plaintiff's right leg and ankle were in a cast as the result of a previous injury. While he testified that this did not seriously interfere with his driving the car, it required that he use his left foot to operate the gas accelerator. When it became necessary to put the car in reverse, as he did in his attempt to clear the track on this occasion, he depressed the clutch with the left foot and operated the accelerator with the cripped right foot.
It is undisputed that at the time of the accident the engine was pulling a train of 101 cars loaded with coal along a slight downgrade *400 at a speed of about 18 miles per hour. The engineer testified that because of the curvature of the track, from his observation post at the right-hand window of the cab he could not see the crossing as the engine neared it. But the fireman who was seated at the window on the left side of the cab, saw the Fletcher car on the track and "hollered" to the engineer who immediately sounded danger signals by several blasts on the whistle and applied the brakes. At the speed at which the train was moving it was impossible to bring it to a stop before the engine had struck the car and passed beyond the crossing.
One of the issues before the jury was whether the whistle was sounded or the bell rung as the train approached the crossing. The plaintiff's wife testified that she was attentive and "listening" as they approached the crossing and that the signals were not given. Other witnesses for the plaintiff testified that they did not hear any such signals although they were in a position to hear them and the conditions were such that they probably would have heard them had they been given. James Chalfa, one of these witnesses, had heard the whistle blown for a crossing about one-fourth of a mile to the east and was attentive to see whether a friend, H. C. McElroy, had safely gotten across ahead of the train at the crossing here involved. He heard no whistle as the train approached this latter crossing.
On the other hand, the engineer and fireman testified that the signals were given as the train approached the crossing and that danger signals of several short blasts were sounded when the plaintiff's car was seen on the track. Other members of the train crew did not recall having heard any signals before the danger blasts were sounded. In this situation, there was sufficient evidence to sustain the of the jury that timely signals were not given.
Since this is not a grade crossing of a "public highway" [1] and is not "outside of" an incorporated town, Code, | 56-414, as amended by Acts 1950, ch. 476, p. 944, requiring a crossing signal, is not applicable. But that did not relieve the Railway Company of the common-law duty to give adequate, reasonable and timely warning of the approach of its train at the crossing. Atlantic Coast Line R. Co. Clements, 184 Va. 656, 665, 36 S.E.2d 553, 557; Norfolk & Portsmouth Belt Line R. Co. Freeman, 192 Va. 400, 407, 408, 64 *401 S.E.2d 732, 736. As was pointed out in Chesapeake & Ohio Ry. Co. Faison, 189 Va. 341, 345, 52 S.E.2d 865, 867, "constant or frequent use by the public of a private crossing, with the knowledge and acquiescence of the railway company, may give to such a passageway the attributes of a public crossing and cast upon the railway company the duty of exercising ordinary care for the safety of such users."
It was for the jury to say whether because of the nature of this crossing and its constant and frequent use by the public, with the knowledge and acquiescence of the Railway Company, the latter's employees were negligent in not giving adequate and timely warning of the approach of its train.
At the trial counsel for the Railway Company urged that the evidence on behalf of the plaintiff, and particularly his own testimony, viewed in the light of the physical defects, showed that he was guilty of contributory negligence as a matter of law in driving onto the track without exercising ordinary care for his own safety. The trial court expressed serious doubt as to the matter but finally concluded to submit that issue to the jury.
The position of counsel for the Railway Company should have been sustained. Since, as has been said, Code, | 56-414, as amended, requiring a crossing signal, is not applicable, the companion section, 56-416, substituting the doctrine of comparative negligence for that of contributory negligence, is likewise not applicable. Consequently, the contributory negligence of the plaintiff bars his recovery.
The plaintiff testified that he was familiar with the crossing and had been over it many times. The weather was clear and the visibility good. He was fully aware that his view of the track to the right, the direction from which the train came, was obscured until he had passed beyond the mountain. There was no obstruction to his left which impaired his view of the track or required his particular attention in that direction.
While his wife estimated that "from the edge of the road crossing" one could see "about 100 to 125 feet" in the direction from which the train came, the photographs offered in evidence by the plaintiff, as well as those by the defendant, show that this is not correct. The unchallenged testimony of E. E. Wiley, a witness for the Railway Company, supported by photographs and actual measurements, is that a person in a car 60 feet south of the crossing could see 69 feet up the track to the east, the direction from which the train came; *402 that 30 feet south of the crossing he could see 126 feet to the east; that 15 feet south of the crossing he could see 229 feet, and from the center of the crossing he could see 276 feet to the east. Thus from the edge of the crossing, that is, from the rail first reached by him, the plaintiff must have had an unobstructed view up the track for at least 250 feet.
It is manifest that at the speed the train was moving and that at which the plaintiff's car was moving, the on-coming engine must have been in plain view when the plaintiff drove onto the track. Therefore, his statement that just before going onto the track he looked and no train was in sight cannot be true. Either he did not look immediately before going onto the track or did not look effectively. If he had looked effectively he is bound to have seen the engine which was dangerously near, and yet by his own admission he did not see it until his wife warned him of the danger. It thus plainly appears that the plaintiff did not exercise ordinary care for his own safety before going onto the track.
In Norfolk & Western Ry. Co. Epling, 189 Va. 551, 557, 53 S.E.2d 817, 820, we said, "If a traveler on a highway drives blindly upon a grade crossing, whether his view is obstructed or unobstructed, and takes no precaution for his own safety and is injured, his negligence precludes recovery, if, as in this case, the doctrine of comparative negligence" is not applicable. Such is the situation in the present case.
The view we have taken of the matter makes it unnecessary to consider whether the plaintiff was negligent in attempting to operate the car in his disabled condition across the track, and if so, whether that was a proximate cause of the collision.
The judgment is reversed, the verdict set aside, and a final judgment will be here entered in favor of the defendant Railway Company.
Reversed and final judgment.
NOTES
[1] Norfolk & Western Ry. Co. White, 158 Va. 243, 163 S.E. 530, holds that section 56-414 must be read in connection with section 56-416, which is expressly made applicable to "a grade crossing of a public highway." Compare section 56-414 as amended by Acts 1956, ch. 164, p. 167. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318727/ | 723 P.2d 288 (1986)
301 Or. 339
McKEE ELECTRIC COMPANY, INC., West American Insurance Company, a corporation, John A. McKee and Elenore B. McKee, Respondents on Review,
v.
CARSON OIL COMPANY, a corporation, Petitioner on Review.
No. A8108-04708; CA A29903; SC S31235.
Supreme Court of Oregon.
Argued January 30, 1985.
Submitted on Requested Supplemental Briefs March 18, 1985.
Decided July 29, 1986.
*289 Timothy N. Brittle, Portland, argued the cause for petitioner on review. With him on the briefs was Acker, Underwood & Smith.
Richard L. Grant, Portland, argued the cause for respondents on review. With him on the briefs were James K. Buell and Buell, Black & Dupuy.
LENT, Justice.
The issue is whether on the pleading and evidence the plaintiff[1] was entitled to an instruction on res ipsa loquitur. We hold that the plaintiff was entitled to the instruction.
This is an action to recover damages for physical harm to property and consequential damages incurred in repairing the property. The plaintiff contends that negligence of the defendant caused a fire that resulted in physical harm to the plaintiff's property. The defendant denied that it was negligent or that it caused the fire. The defendant counterclaimed for damages, contending that the plaintiff's negligence caused the fire and the resulting physical harm to the defendant's property.
The jury decided that the plaintiff was 20% at fault and defendant was 80% at fault; consequently, the plaintiff had judgment on its claim. The defendant's assignments of error on appeal went only to the verdict for the plaintiff. On appeal the defendant contended that it was entitled to favorable rulings on its motion for directed verdict against the plaintiff's claims, its motions to withdraw the plaintiff's specifications of negligence and its motion against the plaintiff's claim for consequential damages. Defendant also claimed error because the trial court instructed on the doctrine of res ipsa loquitur, contending not that it was improper to instruct at all on the doctrine but only that it was improper on the pleading and evidence in this case.
The Court of Appeals held that there was no error with respect to the trial court's denial of the motion for directed verdict, its rulings on withdrawal of the specifications of negligence and its instructions on res ipsa loquitur. McKee Electric Co. v. Carson Oil Co., 70 Or.App. 1, 688 P.2d 1360 (1984). The Court of Appeals remanded for a new trial on the issue of consequential damages.
The defendant petitioned for review, contending only that the Court of Appeals erred in concluding that "expert testimony was not necessary to enable plaintiff to establish negligence" and in concluding that "the issue of res ipsa loquitur was properly submitted to the jury." We allowed that petition for review.
Defendant's petition for review was timely filed. The plaintiff did not timely file a petition for review but filed a response. ORAP 10.05(5) allows a response to be filed within 21 days after the petition for review has been filed. The plaintiff filed its response almost seven weeks after the petition for review had been filed, although within 21 days after this court had allowed the defendant's petition for review. In its *290 response, without any indication whatsoever on the cover, the plaintiff included a petition for review of the Court of Appeals' decision on consequential damages. This was untimely as a petition for review; it was untimely as a response. We never allowed it as a petition for review. In our supplemental questions to the parties after allowance of the defendant's petition for review, we did not address the plaintiff's contentions raised in the petition for review buried in its response.
Under ORAP 10.05(5) the winning party's brief in the Court of Appeals is considered as a response to the losing party's petition for review if no response is filed in this court. The defendant's petition for review is completely silent on the issue of the plaintiff's claim for consequential damages; therefore, we do not consider the plaintiff's brief in the Court of Appeals to be a response to any issues other than those raised in the defendant's petition for review.
In these circumstances, despite ORAP 10.15(2), we choose not to consider the plaintiff's contentions of error with respect to the issue of consequential damages.[2] We express no opinion on the validity of those contentions.
THE COMPLAINT
The plaintiff's claim for relief is for negligence. The complaint alleges that the defendant made a delivery of gasoline to an underground tank on the plaintiff's premises and
"in a reckless, careless and negligent manner caused the gasoline being delivered to ignite, spread and damage the building located thereon, the personal property located therein, and the motor vehicles located thereon as will be more fully described hereafter."
The plaintiff then pled that the cause of the damage was the negligence of the defendant in certain particulars and described the damage in detail. Of the particular charges of negligence, the following four were eventually submitted to the jury:
"Defendant's driver was standing on an elevated loading dock away from his truck so that he could not quickly get to the pump controls and shut off the pump.
"In positioning its truck in close proximity to the fill pipe and vent pipe of the underground tank which was being filled.
"In overfilling the tank causing the nozzle of the delivery hose to come out of the fill pipe and discharge gasoline.
"In causing gasoline to discharge from the vent pipe."
THE FACTS
There was evidence from which the jury could have found the following.
On the east side of the plaintiff's building was a paved area. Extending from the south wall of the building in an easterly direction was a concrete ledge about two feet high separating the paved area east of the building from another parking area south and southeast of the building. The paved area north of the ledge sloped away from the building to the east. Underneath the paved area was the tank.
The fill pipe for the tank was located about six feet from the east wall of the building and about eight to ten inches north of the ledge. About 24 to 28 feet north of the ledge and two or three feet east of the building was the vent pipe, which was about 11 feet high and had a "cap," which would cause escaping vapor to deflect downward. Immediately east of the vent pipe was a gasoline pump used to dispense gasoline from the tank.
*291 The underground tank had a capacity of 2,000 gallons. The tank had an offset fill pipe, and there was no way to measure how much gasoline was in the tank. The defendant had filled the tank on many prior occasions. Sometimes the plaintiff had allowed the tank to run dry before ordering a fill. On other occasions the plaintiff had ordered a specified amount of gasoline to be delivered. On this occasion the plaintiff had simply ordered the tank to be filled, not indicating whether or not it was empty.
On prior occasions the defendant's drivers had sometimes positioned the delivery truck north of the ledge and sometimes south of the ledge. On this occasion the driver positioned his vehicle parallel to and north of the ledge with the front of the truck facing west and about two feet from the east wall of the building. He so positioned the truck because if he had parked it either south of the ledge or farther east he could not completely drain his truck's tanks.
The driver hooked up his delivery hose, inserted the hose's metal nozzle into a rubber cone and pushed the rubber cone into the fill pipe, thus making an airtight seal. This positioning of the truck meant that the fill pipe was between the driver's side of the truck and the ledge.
In order to discharge gasoline from the truck's tanks into the fill pipe, it was necessary to keep the truck engine running. The power takeoff unit was located at the driver's side of the truck. The driver engaged the unit and emptied one of his truck tanks, putting about 1,050 gallons of gasoline in the plaintiff's tank. While doing so, the driver moved to a place near the ledge to see the vent pipe, which he could not see from the driver's side of the truck where his controls were located.
After emptying his first tank, the driver disengaged the unit and made ready to draw from another of his tanks. He engaged the unit and moved back onto the ledge about 20 feet from his controls. At that time he was pumping about 140 gallons per minute, thus not using the full capacity of the system, which could pump about 2,300 gallons per minute.
After about 300 gallons had been pumped, the diesel engine of the truck began to race. This would have the effect of pumping more gasoline per minute. As he started down from the ledge to go to his controls, the driver saw gasoline coming from the fill pipe area. He shut off the pumping. There was then an explosion, and a fire began. About 10 to 15 seconds elapsed from the time the engine began to race to the time of the explosion.
The purpose of the vent pipe is to vent gasoline vapor and air from the tank while it is being filled. Gasoline vapor is heavier than air; therefore, the cap on the vent, the slope of the area and a strong east wind if blowing at the time could cause any vapor from the vent pipe to move toward the truck engine and produce the racing. On the other hand, if gasoline were coming from the fill pipe, vapor from that gasoline could reach the engine and cause the racing.
After the fire, there was gasoline in the fill pipe about eight inches from the top.
At no time during the delivery and the start of the fire was any employee of the plaintiff present. The only eyewitness was the defendant's driver.
THE COURT'S JURY INSTRUCTIONS
The defendant objected to the court instructing the jury concerning the doctrine of res ipsa loquitur:
"In any event, our objection to Res Ipsa Loquitur is that it's not pleaded, number one; and, number two, that it has no application to this case in any event, when we talk about exclusive control in the context of the cases cited, among others, in the ALR 3d citation [32 A.L.R. 3rd 1169] which I referenced.
"There is a split in the application of these types of case, depending on whether there is any element of causation attributable to anyone other than the party delivering the gasoline. And in this case, there is certainly an element of causation *292 attributable at least factually to the Plaintiffs by virtue of possible Code violations.
"The exclusive control aspect of it, therefore, is not present in this case and Res Ipsa should not therefore apply."
After remarks by the court concerning the relaxation of the requirement of control by a defendant, counsel continued his objection:
"There are other aspects that isthis is the type of situation that doesn't happen in the absence of someone's negligence. We have a rather unique set of circumstances here in which wind contributed apparently, according to the testimony, at least to the vent coming down into the engine and the engine running away. The engine running away increasing pump pressure, popping the nozzle out, gasoline spewing around.
"I don't agree that this is the type of situation that necessarily or even impliedly happens through someone else's negligence, and it's another reason why Res Ipsa, I believe, would not apply in the facts of this case.
" * * *
"Again I draw the Court's attention to the fact that we are talking about the standard of care of someone who is in the field, not known in general to the jury, and that in such cases such as medical malpractice or lawyer malpractice, whatever the field of specialty may be, but there is a requirement in our law that there be an expert in that field who can come in and testify that the individual concerned did something which was not within the recognized standard of that particular provision."
The trial court informed the defendant's counsel that the court did not believe that it was necessary to plead res ipsa loquitur.
After a recess, the defendant's counsel cited to the court Thorp v. Corwin, 260 Or. 23, 488 P.2d 413 (1971), stating that the case stood for the proposition that where specific allegations of negligence are pleaded, the doctrine of res ipsa loquitur is limited to those specific allegations. Counsel continued:
"Now, I don't know what the Court's intent was. If the Court's intent was to simply say that Res Ipsa may apply to the specific allegations of this case as they are left in the case, then I think Thorp vs. Corwin could be consistent with that. I had some trouble framing the language, but that's my intent, and I believe that's the current state of the law. That the Res Ipsa Loquitur, for a specific act of negligence to be pled, the Res Ipsa Loquitur has to arise out of those acts of conduct."
Counsel then renewed his argument that expert witness opinion evidence was necessary to make a jury question on negligence in this case and for the doctrine to apply.
After the lawyers had argued to the jury, the trial court instructed in part as follows:
"The fact that there was this explosion and this fire or that a person was injured or damaged is no indication that anyone was at fault. However, you may find that the Defendant was at fault if you find all the four elements are provenexcuse me, all of the four following elements are proven.
"First, that the fire damage was caused by igniting spilled gasoline. Secondly, at the time of the incident, the delivery truck and discharge of gasoline was under the control or management of the Defendant.
"Third, the Plaintiff's contribution to the incident did not preclude negligence on the part of the Defendant as alleged in Plaintiff's complaint.
"Fourth, in the normal course of events, the incident would not have occurred unless the Defendant was at fault.
"In this case, in order for either party to prevail on their claim for money damages, that party must prove by a preponderance of the evidence that the other party was at fault in at least one of the ways alleged in their pleadings which was a cause of damage to that party, and that such fault upon the part of that *293 party was at least equal to or greater than any fault of the other party. * * *
"Now, that applies to the specific acts of negligence which are contained in pleadings and which I'll review with you shortly. [Emphasis added.]
" * * *
" * * * Well, you might say to yourselves: If they [the pleadings] are not in evidence, why is the Judge going to take our time to review the pleadings. Well, jurors, the pleadings do play a very important function in a trial, and that is that in your deliberations you may not go outside of the issues raised in the pleadings."
The trial court then went on to review the claims of the plaintiff that were being submitted to the jury, telling the jury that the plaintiff contended that the negligence of the defendant consisted of the four specifications set forth above (slip op at 4). The trial court concluded this aspect of the instructions as follows:
"Now, it's the Plaintiffs' contention that those acts of negligence caused the damage that the Plaintiffs complain of."
The defendant's counsel excepted as follows:
"We would except to the instruction based on our belief that this is not a case drawing into applicability the Doctrine of Res Ipsa, particularly as related in the fourth of the elements of the instructions as given to the jury that this is the type of accident that wouldn't have happened except for Defendant's fault. And based upon the absence of any negligence, any proof in this case that is in fact the situation, any expert witness to that effect."
BASIS IN THE COMPLAINT TO APPLY RES IPSA LOQUITUR
We shall first consider whether the plaintiff's complaint permitted an instruction on res ipsa loquitur. The doctrine is nothing but a Latin phrase that recognizes a possible effect of circumstantial evidence. It is a rule of evidence. Watzig v. Tobin, 292 Or. 645, 648, 642 P.2d 651 (1982). A rule of evidence should not be pleaded in a claim for relief. "A pleading which asserts a claim for relief * * * shall contain: A. A plain and concise statement of the ultimate facts constituting a claim for relief without unnecessary repetition." ORCP 18 A. It would not be proper to label the claim as being dependent on application of the doctrine of res ipsa loquitur. A plaintiff need only plead ultimate facts that, if true, show that an injury occurred in circumstances that more probably than not would not have occurred in the absence of negligence on the part of the defendant.
The defendant's argument, however, is that the plaintiff pleaded only specific allegations of negligence and that the defendant did not receive notice that the plaintiff intended to rely on res ipsa loquitur. A second argument by the defendant is that because the complaint contained only specific charges of negligence, the court could instruct on res ipsa loquitur only as it applied to those specifics, but the court here did not limit application of the doctrine to the specific charges of negligence.
The general rule of pleading to invoke the doctrine is set forth in Short v. D.R.B. Logging Co., 192 Or. 383, 393, 232 P.2d 70, 235 P.2d 340 (1951):
"The rule in Oregon is that, where a plaintiff makes specific allegations of negligence in his complaint, he may invoke res ipsa loquitur, if applicable, as to such specific acts. * * * [citations omitted.] Lest we be misunderstood, we hasten to add that, of course, he may if he wishes, allege negligence both generally and specifically, and invoke res ipsa, if applicable, as to either or both."[3]
In this case the plaintiff argues that it pleaded negligence both generally and specifically. It points to its allegation quoted above that the defendant "in a reckless, careless and negligent manner caused the gasoline being delivered to ignite, spread and damage" the plaintiff's property. Taken alone this might be considered a general *294 allegation of negligence, but at the end of the paragraph in which those words appear the plaintiff has added "as will be more fully described hereafter." It might be considered that these last words apply only to the claims of injury, but it is just as logical to infer that they apply both to the allegation of negligence and the claims of injury. We shall, arguendo, resolve that issue against the plaintiff and therefore hold that the plaintiff relies on specific charges of negligence.[4]
We conclude that a fair reading of the instructions reveals that the trial court limited the jury's consideration of the rule of res ipsa loquitur to the four specific allegations of negligence submitted to the jury and forbade consideration of any general charge of negligence.
NEED FOR EXPERT OPINION TESTIMONY
We now consider the defendant's contention that the plaintiff was not entitled to the benefit of the rule of res ipsa loquitur for want of opinion evidence by an expert that the defendant's conduct fell below the standard of care for delivery of gasoline. The defendant argues that the testimony of an expert was necessary because "only with such testimony can a juror conclude that a reasonable delivery person would have anticipated that a diesel truck so positioned would be affected by vapors leading to a fire." The defendant cites for this argument Hall v. State, 290 Or. 19, 619 P.2d 256 (1980); Lynd v. Rockwell Manufacturing, 276 Or. 341, 554 P.2d 1000; and Getchell v. Mansfield, 260 Or. 174, 489 P.2d 953 (1971).
In Hall v. State, supra, the defendant had contended on appeal that "expert testimony"[5] was necessary for the plaintiff to establish what would be a reasonable time for the removal of sand from a highway and on review had contended that expert opinion was required to prove that the sand should have been removed earlier than the plaintiff's accident. We said that the rule was otherwise:
"Expert testimony is an indispensable part of plaintiff's case only when the average juror cannot be expected to understand the issues without that kind of assistance. It is not required simply because the circumstances are outside the average juror's experience if the other evidence is such as to present the issue in terms which the jury can be expected to understand. Lynd v. Rockwell Manufacturing, 276 Or 341, 349, 554 P2d 1000 (1976); Simpson v. Sisters of Charity of Providence, 284 Or 547, 557, 588 P2d 4 (1978)."
290 Or. at 27, 619 P.2d 256. We held that expert testimony was not essential to the plaintiff's case.
In Lynd v. Rockwell Manufacturing, supra, a product liability design defect case concerning a saw, the defendant contended that an expert's opinion would be necessary to establish that the design was defective. The opinion states:
"Admittedly, design defect cases sometimes involve technical, scientific issues which cannot be fully understood by the average juror without some expert assistance. In such cases, expert testimony as to the defective nature of defendant's design will be an indispensable element of plaintiff's case. However, when the issues presented relate to matters which require only common knowledge and experience to understand them, the testimony of experts is not essential. See generally VII Wigmore 453, § 2090 (3d ed 1940) and cases cited therein. This is the same rule which is applied in other cases which frequently involve technical, scientific issues such as medical malpractice cases. See, e.g., Getchell v. Mansfield, 260 Or 174, 489 P2d 953 (1971); Nation v. Gueffroy, 172 Or 673, *295 142 P2d 688, 144 P2d 296 (1943); Annot., 40 ALR3d 515 (1971); Annot., 81 ALR2d 597 (1962)."
276 Or. at 341, 554 P.2d 1000. The opinion held that from the evidence as to the working of the saw and its components the jury could understand the issue without the opinion evidence of an expert.
In Getchell v. Mansfield, supra, a medical malpractice case, the plaintiff had suffered injuries when wires used in surgery to join separated parts of her shoulder had broken. The plaintiff alleged negligence in failing to advise her of the risk of breakage and that therefore she did not give informed consent. The opinion held that the jurors could not comprehend the issue without help from experts and therefore expert opinion evidence that the defendants' conduct fell below the standard of care in the community was necessary. We have no reason to question that decision, but we do not perceive it as helping this defendant.[6]
Just as in Hall v. State, supra, and Lynd v. Rockwell Manufacturing, supra, we find that there was evidence from which the jury in the case at bar could understand the issues of negligence and causation without the assistance of opinion evidence. We agree with the statement by the Court of Appeals:
"The average juror does not need an expert to explain that it is more likely than not negligence to overfill an underground tank and cause gasoline to spill on the surface. A juror can understand, without expert testimony, that a reasonably prudent person would not park a delivery truck with the engine running where it is reasonably foreseeable that gasoline vapors will be present and that the truck would be affected by, or ignite, those vapors."
70 Or.App. at 5, 688 P.2d 1360.
BASIS IN THE EVIDENCE TO INSTRUCT ON RES IPSA LOQUITUR
For decision of this case we have one final inquiry whether an instruction on res ipsa loquitur was appropriate in light of the evidence that was adduced. It should be kept in mind that the defendant's driver was the only eyewitness to the historical facts, i.e., what transpired. From the driver's *296 account, which was direct evidence, the jury is entitled to draw inferences based on any of the logical inductive or deductive processes by which the brain arrives at reasoned conclusions from given data.
There was sharp dispute about the cause of the gasoline vapors reaching the truck's engine and producing the racing that, in turn, resulted in acceleration of the pumping process. The defendant charged the plaintiff with negligence in having a vent pipe that was shorter than allowed by code and having a cap that deflected vapors downward where east wind trapped them against the building so as to reach the truck's engine. The jury could have rejected the driver's testimony that the east wind was blowing so as to trap the vapors in that manner. The driver did not notice gasoline spewing from the fill pipe until after the engine began to race, but because the driver did not know when the tank would be full with normal pumping, it could be found that the gasoline began to spill from the fill pipe by overfill and produced the vapors. Such a finding would be supported by the fact that gasoline came out of the fill pipe and that the pipe was still filled to within eight inches of the top even after the fire.
The doctrine of res ipsa loquitur may be invoked to establish both negligence and causation.
"In many cases the inference to be drawn is a double one, that the accident was caused in a particular manner, and that the defendant's conduct with reference to that cause was negligent. The inference of negligence may arise either where a definite cause is known, or where the accident is more or less a mystery, with no particular cause indicated. When a gasoline filling station mysteriously explodes, many possible explanations can be suggested, but the most likely one may be negligence on the part of those in charge. The plaintiff is not required to eliminate with certainty all other possible causes or inferences, which would mean that the plaintiff must prove a civil case beyond a reasonable doubt. All that is needed is evidence from which reasonable persons can say that on the whole it is more likely that there was negligence associated with the cause of the event than that there was not." (Footnotes omitted.)
Prosser & Keeton, Torts 247-48, § 39 (5th ed 1984). That the inferences permissible under the doctrine go to causation as well as negligence was recognized in DeWitt v. Rissman, 218 Or. 549, 559, 346 P.2d 104 (1959), where it is stated:
"Thus, a party who depends upon the doctrine of res ipsa loquitur must establish facts from which the good sense of the jury can draw a conclusion that the alleged wrongdoer was negligent and in that manner caused the injury."
We believe that the key question to be asked by a court is that which we recently approved:
"Could it have been reasonably found by the jury that the accident which occurred in this case is of a kind which more probably than not would not have occurred in the absence of negligence on the part of the defendant?"
Watzig v. Tobin, supra, 292 Or. at 649, 642 P.2d 651. Asking that question about the evidence in this case leads us to conclude, as did the trial court and the Court of Appeals, that the plaintiff was entitled to the benefit of the doctrine of res ipsa loquitur and that in instructing the jury the trial court did not err in any respect covered by the defendant's objections before the charge or exceptions after the charge.
PROPRIETY OF SUBMITTING THE DOCTRINE BY JURY INSTRUCTION
After oral argument in this case, we addressed questions to counsel for the respective parties and asked that they submit supplemental briefs. One of the questions we addressed to counsel was whether the inference permitted by res ipsa loquitur should be the subject of a separate instruction. This question was prompted by our attention to the function that the doctrine serves as discussed in Watzig v. Tobin, supra, where we pointed out that res ipsa *297 loquitur is merely a rule of circumstantial evidence. We drew the attention of counsel to Powell v. Moore, 228 Or. 255, 269, 364 P.2d 1094 (1961), in which this court held that it is permissible to instruct the jury on res ipsa loquitur. We there said:
"Defendant reminds us that in Ritchie v. Thomas et al., 190 Or 95, 113, 224 P2d 543 (1950), a question was raised as to whether it is ever permissible to instruct the jury on res ipsa loquitur. In that case it was said:
"` * * * Since the effect of the rule is merely to take the plaintiff's case to the jury, we see no more reason for requiring the court to comment on this type of circumstantial evidence than upon any other type. Whether it would be reversible error for a trial court to instruct on the inference which arises in this type of case is a matter which need not now be decided.'
"We believe that it is proper for the court to instruct the jury with respect to the permissibility of drawing the inference of defendant's negligence from the facts of the occurrence in appropriate cases. It is true, as the quotation from the Ritchie case indicates, that res ipsa loquitur is simply a rule relating to a particular kind of circumstantial evidence. However, res ipsa permits the drawing of an inference which rests upon no specific causative circumstance in the case; and it is quite possible that without an instruction the jury would not realize that it is permissible to draw the inference of defendant's negligence from the fact that in common experience the accident in question would not ordinarily occur in the absence of negligence on the part of the defendant. `[T]he jury cannot pass intelligently upon the question whether the inference of negligence should be drawn, unless, in language which it can understand, it receives an explanation of why the evidence would permit an inference of negligence, and why the jury may reject such inference if it sees fit.' Foltis, Inc. v. City of New York, 287 NY 108, 124, 38 NE2d 455, 464, 153 A.L.R. 1122 (1951)."
228 Or. at 269-70, 364 P.2d 1094.
We have not uniformly held that rules of circumstantial evidence are proper subjects of jury instructions. In State v. McCormick, 280 Or. 417, 571 P.2d 499 (1977), in dealing with a permissible inference of consciousness of guilt arising from flight from the scene of a crime, we stated that the inference should not ordinarily be the subject of instruction; rather, the significance of flight is better addressed in argument to the jury.
Should there be a different rule with respect to the permissible inference where res ipsa loquitur is applicable? Our sister state of Washington is apparently convinced that there should not.
"Res ipsa is properly treated the same as other circumstantial evidence in instructions to the jury. The remaining question is whether, instead of or in addition to these instructions, the so-called `res ipsa instruction' should be given. We are of the opinion that such instructions should not be given. To do so is to emphasize one particular inference over others which may be, and usually are, in the case. When added to other, general instructions which inform the jury of what they may or should do with the evidence before them, such particularized instructions are unnecessary and redundant. We agree with the statement that `in keeping with the modern thinking on the subject, giving slanted or formula instructions should be avoided wherever possible. They should be given only where a general instruction would clearly be inadequate or would confuse or mislead the jury.' * * *
"`Proposed instructions advising the jury that it may or should consider certain specific evidence in arriving at certain conclusions or findings or in arriving at a verdict should ordinarily be rejected. They are often proposed in negligence cases where one party wish [sic] to call attention to certain facts in evidence as indicative of distance *298 or speed. While such instructions may be legally correct and, if worded properly, may not technically be a comment on the evidence, they approach `comment' since they intimate to the jury that the judge thinks that particular evidence commands special attention or has more weight than the other evidence. They tend to `highlight' or `pinpoint' certain evidence to the detriment of other evidence in the case. In that way they do constitute `comment.' Such instructions are ordinarily needless since the jury will consider all evidence not stricken by the court, and it is the attorneys' function to (and they undoubtedly will) call attention to such evidence in their argument. The only time they should be given is when some other instruction or some special quirk in the case may lead the jury to believe that it should ignore such evidence, even though not specifically told to do so.'"
Zukowsky v. Brown, 79 Wash.2d 586, 488 P.2d 269, 279 (1971). See also Mobile Chemical Company v. Bell, 517 S.W.2d 245, 252-53 (Tex.1974), for a similar discussion and holding.
On the other hand, as recently as 1971 this court addressed this question with respect to res ipsa loquitur in Dacus v. Miller, 257 Or. 337, 341, 479 P.2d 229 (1971). Footnote 4, 257 Or. at 341-42, says:
"In a line of cases beginning in 1950 we took the position that the trial court is not required to instruct on res ipsa, Ritchie v. Thomas et al, 190 Or 95, 224 P2d 543 (1950), but that such an instruction may be given, Powell v. Moore, 228 Or 255, 364 P2d 1094 (1961), and that it is `preferable' to instruct on the doctrine in a case in which it applies. Centennial Mills, Inc. v. Benson, 234 Or 512, 383 P2d 103 (1963). Without citing these cases, however, we said in Waterway Terminals v. P.S. Lord, 242 Or 1, 53, 406 P2d 556, 13 ALR3d 1 (1965), that in a res ipsa case an instruction on the doctrine should be given if requested.
"It appears that the position taken in the Waterway Terminals case is in accord with the modern decisions in other states. See, e.g., Ryan v. George L. Lilley Co., 121 Conn 26, 183 A 2 (1936); Merriman v. Kraft, [144 Ind.App. 33] 242 NE2d 526 (Ind App 1968) (dictum); Vespe v. DiMarco, 43 NJ 430, 204 A2d 874 (1964); Tuso v. Markey, 61 NM 77, 294 P2d 1102 (1956); George Foltis, Inc. v. City of New York, 287 NY 108, 38 NE2d 455 (1941); Fink v. New York Cent. R. Co., 144 Ohio St 1, 56 NE2d 456 (1944); Turk v. H.C. Prange Co., 18 Wisc 2d 547, 119 NW2d 365 (1963); North Central Gas Company v. Bloem, 376 P2d 382 (Wyo 1962) (dictum). Contra, Chase v. Beard, 55 Wash 2d 58, 346 P2d 315 (1959)."
We have come to the conclusion that in the case at bar we should not attempt a final answer to the question of the propriety of ever instructing on res ipsa loquitur, for the issue was not presented in the trial court or on appeal. Anything we might say would be only dictum.
The decision of the Court of Appeals is affirmed.
NOTES
[1] There are actually four named plaintiffs. They are a closely held corporation, Mr. and Mrs. McKee, the two principal shareholders of the corporation, and the corporation's insurer. We have no occasion to refer to the insurer. Where we speak of plaintiff, we mean the corporation.
[2] ORAP 10.15(2) provides:
"If the Supreme Court accepts review, it may limit the questions on review. If review is not so limited, the questions before the Supreme Court include all questions properly before the Court of Appeals that the petition or the response claims were erroneously decided by that court. The Supreme Court's opinion need not address each such question. The court may consider other issues that were before the Court of Appeals."
[3] Followed in Waterway Terminals v. P.S. Lord, 256 Or. 361, 371, 474 P.2d 309 (1970).
[4] It is arguable that two of the four charges of negligence submitted to the jury are only charges of general negligence.
[5] "Expert testimony" is often used by courts and lawyers as a short expression for opinion evidence given by a witness who has qualified as an expert in the particular field of inquiry involved in the litigation. See OEC 702.
[6] Dean Prosser discussed various kinds of medical malpractice in an article he wrote about res ipsa loquitur:
"This question of duty has arisen frequently in malpractice cases. The obligation of a physician, surgeon or dentist is merely one of minimum skill common to the profession and reasonable care in using it; he does not undertake to cure. Consequently the mere fact that his treatment has been unsuccessful, or that something has gone wrong with it, permits no inference of his negligence. There is not enough in a mistaken diagnosis alone, or the unfortunate choice of a wrong method of treatment, or the kind of accident that occurs in a substantial percentage of similar cases in spite of all reasonable precautions, to show the necessary lack of either skill or care. What this means is that in the ordinary malpractice case laymen are not qualified to say that a good doctor would not go wrong, and that it is only where there is expert testimony that proper skill and care would have done better that the conclusion is open.
"In a large number of cases the California courts have held that in the absence of such expert evidence negligence cannot be found. These decisions, together with the notorious unwillingness of the medical profession ever to testify against one another, may impose an insuperable handicap upon the plaintiff in cases where there has been real butchery but he lacks the proof. As medical science approaches a greater degree of perfection and common knowledge of its principles and methods increases, it seems reasonable to expect that the rule will be limited to fewer situations.
"Even today, however, there are some medical and surgical errors on which any layman is competent to pass judgment, and common experience tells all of us that such things do not happen unless there is incompetence or want of care. To these cases res ipsa loquitur may apply. When a dentist drops a tooth down a patient's windpipe or it is knocked out in the course of a tonsillectomy, when instruments are not sterilized, when a ligament is torn during treatment or an operation leaves sponges in the victim's interior or removes an inappropriate part of his anatomy, or when there are serious burns from hot water bottles, chemicals, or infra-red or X-rays during either diagnosis or treatment, the thing speaks for itself without the aid of any expert's voice." (Footnotes omitted.)
Prosser, Res Ipsa Loquitur in California, 37 Cal. L.Rev. 183, 210-212 (1949). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318742/ | 94 Ga. App. 219 (1956)
94 S.E.2d 100
GOLDSTEIN
v.
THE STATE.
36294.
Court of Appeals of Georgia.
Decided July 16, 1956.
Wilbur B. Nall, W. George Thomas, for plaintiff in error.
George D. Lawrence, Solicitor-General, contra.
CARLISLE, J.
To an indictment (or more accurately a special presentment) in nine counts charging him with making, possessing, and uttering certain forged negotiable instruments, the defendant filed his plea in abatement to the first six counts upon the ground, among others, that the witnesses named on the indictment (or special presentment) had not appeared and testified under oath before the grand jury. The solicitor-general filed various demurrers to the plea in abatement, some of which were sustained and others overruled. Upon the hearing of evidence and argument of counsel upon the plea in abatement, the trial court overruled the plea in abatement. In his bill of exceptions in this court the defendant assigns error upon the trial court's sustaining certain of the solicitor-general's demurrers to the plea, assigns error upon the rejection of certain evidence upon the hearing of the plea, and upon the trial court's overruling the plea. Insofar as it appears from the record, the defendant has never been tried under the indictment and there has been no final judgment in the case.
1. "Save as to cases specially provided for by law, it is well settled that no case can be brought to this court so long as it is pending in the court below unless the judgment complained of, if it had been rendered in favor of the plaintiff in error, would have been a final disposition of the case. Tallapoosa v. Brock, 143 Ga. 599 (85 S.E. 755); Baldwin v. Lowe, 129 Ga. 711 (59 S.E. 772); Pattison v. Davis, 56 Ga. App. 801 (194 S.E. 222). It is equally well settled that a judgment sustaining or striking *220 a plea in abatement is not a final judgment within the meaning of Code § 6-701, and that such a judgment can not be reviewed by a direct bill of exceptions to the appellate court. Pattison v. Davis, supra; Cooper v. Vanhorn, 58 Ga. App. 446 (198 S.E. 794); English v. Rosenkrantz, 150 Ga. 745 (105 S.E. 292). Even a judgment sustaining a plea of res judicata or a plea in abatement to a suit, though generally controlling, is not `final' within the meaning of Code § 6-701. English v. Rosenkrantz, supra. Of course the same principle applies where the plea is submitted to the jury and a verdict against the plea is returned, and a motion for a new trial, based solely upon the issues raised by the plea, is denied, and that judgment is assigned as error. Such judgment is not final judgment within the meaning of the Code section. Pattison v. Davis, supra; Cooper v. Vanhorn, supra." Harris v. State, 64 Ga. App. 281 (13 S.E.2d 42).
2. Applying the foregoing principles of law to the facts of the present case, the writ of error must, on motion of the solicitor-general, be dismissed as premature. The judgments to which exceptions are taken are not final within the meaning of Code § 6-701 and would not have been final even if the trial court had ruled as the defendant contends it should have.
Writ of error dismissed. Gardner, P. J., and Townsend, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318873/ | 212 Ga. 596 (1956)
94 S.E.2d 379
CALLAWAY
v.
FAUST.
19423.
Supreme Court of Georgia.
Submitted July 9, 1956.
Decided September 7, 1956.
Clement E. Sutton, for plaintiff in error.
Kay Tipton, Tipton & Tipton, Erwin, Nix, Birchmore & Epting, contra.
MOBLEY, Justice.
Mrs. J. G. Faust owned a 1/4 undivided interest in certain real property located in Greensboro, Georgia. She and her husband executed a joint will, item 3 of which reads as follows: "The testator herein first dying wills and bequeaths to the survivor all the property belonging to such deceased testator (except such as has been disposed of in Items 1 and 2 above) of whatever sort or nature in fee simple, and to be used and owned fully in any way such survivor may desire. With the express provision however, that at the death of such survivor, all property then owned or held by such survivor however acquired passes to and becomes the property of said Henrietta Smith Sisk, such property being hereby willed and bequeathed to her." Mrs. J. G. Faust died, the joint will was probated as her will, and Mr. Faust subsequently married the defendant, Mrs. Karl G. Faust. J. G. Faust conveyed by deed his interest in said property to the defendant. Subsequently, J. G. Faust died intestate. The plaintiff, Mrs. Henrietta Sisk Callaway, formerly Henrietta Smith Sisk, filed an action for a declaratory judgment, contending that, under item 3 of the will quoted above, J. G. Faust took a life estate in said property and she took a remainder. The defendant contends that J. G. Faust took a fee-simple estate in the property, which he conveyed to her by deed. The case was heard by the judge without a jury upon an agreed statement of fact. The judge found that, under item 3 of the joint will, J. G. Faust took a fee-simple estate in the 1/4 undivided interest of his wife in said property, and that the deed of J. G. Faust to Mrs. Karl G. Faust conveyed his interest in said property *597 to her; and a judgment was entered declaring the title to the property to be vested in the defendant. The plaintiff excepts to this judgment. Held:
1. Where, under a joint will of a husband and wife, the survivor is expressly devised a fee-simple estate in the property of the testator first dying, and following such a devise are the words, "to be used and owned fully in any way such survivor may desire," these words are clearly not a limitation upon the fee and do not show an intention of the testator to reduce the estate of the survivor from a fee-simple to a life estate. Thomas v. Owens, 131 Ga. 248, 255 (62 S.E. 218); Nicholls v. Wheeler, 182 Ga. 502 (185 S.E. 800).
2. Following the above devise to the surviving spouse, this proviso appears: "With the express provision however, that at the death of such survivor, all property then owned or held by such survivor however acquired passes to and becomes the property of said Henrietta Smith Sisk, such property being hereby willed and bequeathed to her." We think it manifest that this provision was not intended to limit the fee to a life estate. It does not propose to deal with the individual property of either testator. It refers only to the property of the survivor, and states that, at the survivor's death, all property then owned by him, whether acquired before, at the time of, or subsequently to the death of the testator first dying, should become the property of Henrietta Smith Sisk. The plaintiff's contention, that the proviso quoted above limited the fee and created a life estate in favor of J. G. Faust with a remainder to her, is without merit. "A court will not by construction reduce an estate devised absolutely in fee unless the intent to limit the devise is clearly and unmistakably evidenced by subsequent language of the will. . . Doubtful expressions relied upon to impose a limitation should be resolved in favor of the absolute estate." Davant v. Shaw, 206 Ga. 843 (59 S.E.2d 500).
3. The trial court properly held that J. G. Faust took a fee-simple estate in the property involved in this litigation, that the deed of J. G. Faust to Mrs. Karl G. Faust conveyed such estate to her, and that the plaintiff had no interest in said property.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260941/ | 632 F. Supp. 463 (1986)
S.D. WARREN CO., A DIVISION OF SCOTT PAPER COMPANY, Petitioner,
v.
UNITED PAPERWORKERS INTERNATIONAL UNION, AFL-CIO LOCAL 1069, Respondent.
Civ. No. 85-0321 P.
United States District Court, D. Maine.
April 2, 1986.
S. Mason Pratt, Elizabeth S. Pearce, Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Portland, Me., for petitioner.
Stephen P. Sunenblick, Sunenblick, Fontaine & Reben, Portland, Me., for respondent.
OPINION
GENE CARTER, District Judge.
INTRODUCTION
In this action, S.D. Warren Company seeks to overturn, and the United Paperworkers Union seeks to enforce, an Arbitrator's decision to reinstate three employees who were discharged by the Company. The employees, Kimberly Denis, Deborah Graham and Linda Willoughby, were discharged in connection with an undercover investigation conducted at the Company, for violation of a rule contained in the Collective Bargaining Agreement prohibiting the possession, use or sale of marijuana on mill property. The Arbitrator sustained the grievances of these employees and directed the Company to reinstate them with full back pay, seniority and benefits but imposed unpaid suspensions of seven *464 months, nine months and four months, respectively.[1] After reviewing the submissions regarding the Company's Motion to Vacate the Award, the Magistrate issued a Recommended Decision finding that while enforcement of the award did not violate public policy, the Company's Motion should be granted on the basis that the Arbitrator had exceeded her authority. Both parties filed objections to the Recommended Decision, the Union in regard to the Magistrate's determination that the Arbitrator had exceeded her authority, and the Company in regard to the Magistrate's finding that the award did not violate public policy. After reviewing the record, the Court has determined that it must enforce the Arbitrator's award.
STANDARD OF REVIEW
This matter is not a pretrial motion and it is dispositive of the parties' dispute. Therefore, in reviewing the Magistrate's Recommended Decision this Court must make a de novo determination upon the record under 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). See, e.g., Aluminum Company of America v. United States Environmental Protection Agency, 663 F.2d 499 (4th Cir.1981).
The standard under which a United States District Court may review an arbitration award is extremely narrow. In accordance with established policy, "[w]here parties to a collective bargaining agreement have provided for arbitration as the final and binding method for settling grievances the arbitration award is normally non-reviewable by a court." Bettencourt v. Boston Edison Company, 560 F.2d 1045, 1048 (1st Cir.1977), citing United Steelworkers v. Enterprise Wheel and Car Corporation, 363 U.S. 593, 599, 80 S. Ct. 1358, 1362, 4 L. Ed. 2d 1424 (1960) (herein Enterprise Wheel & Car). See also 29 U.S.C. § 173(d); 9 U.S.C. § 10. Therefore, a Court is bound to enforce an arbitral award unless the decision does not "draw its essence from the collective bargaining agreement." W.R. Grace & Company v. Local Union 759, 461 U.S. 757, 764, 103 S. Ct. 2177, 2182, 76 L. Ed. 2d 298 citing Enterprise Wheel & Car, 363 U.S. at 597, 80 S. Ct. at 1361.
In order to overturn an arbitration award, this Court must find, at a minimum, that the decision is "unfounded in reason and fact," "based on reasoning `so palpably faulty that no judge, or group of judges, could ever conceivably have made such a ruling,'" or "mistakenly based on a crucial assumption which is `concededly a nonfact.'" Bettencourt, 560 F.2d at 1050 (citations omitted). Apart from matters specifically excluded by the parties "all of the questions on which the parties disagree must ... come within the scope of the grievance and arbitration provisions of the collective agreement." United States v. Warrior & Gulf Navigation Company, 363 U.S. 574, 581, 80 S. Ct. 1347, 1352, 4 L. Ed. 2d 1409 (1960) (herein Warrior & Gulf).
I. Did the Arbitrator Exceed Her Authority Under the Collective Bargaining Agreement?
The Collective Bargaining Agreement between the parties sets out a dispute resolution process at Article 12, Section 4. The disputes to be covered by this process are "differences ... as to the meaning or application of the provisions of th[e] Agreement." The Agreement provides that, if such a dispute is not resolved by several levels of internal procedure,
the matter may be referred by either party to an arbitrator for decision, but it is agreed that the matter thus referred shall be concerned solely with the interpretation on and/or application of th[e] collective bargaining Agreement ... The decision of the arbitrator shall be final and binding on the parties.
The Agreement further states that "the arbitrator shall have no power to render a decision which in any way adds to, subtracts *465 from, or modifies any provision of the Agreement."
The Agreement also includes a "Management Rights" clause which states:
The Company reserves the sole right to manage the business of the Company and its Cumberland Mills operation and to direct the working force. This right includes but is not limited to ... the right to select, hire, assign, promote, demote, transfer, discipline, suspend or discharge employees for proper cause or to relieve them from duties because of lack of work or for other legitimate reasons.
The Agreement includes an employees' seniority provision stating that mill seniority ends upon "discharge for proper cause." The final provision relevant to this case is Mill Rule 7(a), which is included in Appendix A of the Agreement. It states:
7. Causes for Discharge
In any organization, certain rules of conduct must be observed by the members for the good of all.
Violation of prescribed rules are cause for disciplinary action of varying degrees of severity.
Violations of the following rules are considered causes for discharge.
a) Possession, use or sale on Mill property of intoxicants, marijuana, narcotics or other drugs. The possession or use of a specific narcotic or drug properly prescribed by a licensed physician is the only exception to this rule.
The Arbitrator conducted a hearing in this case and found the following facts: In October 1983 Agent Timothy Berry was hired by the Company under name "Al" Berry as an entry-level employee at the mill. Agent Berry was, in fact, acting as an undercover agent for the State Police Drug Unit. That agency reached an arrangement with S.D. Warren, prior to Agent Berry's employment at the mill, that he would make himself available to the Company for any administrative matter resulting from his work at the completion of the investigation. During this undercover operation, Agent Berry kept written reports which were eventually turned over to the Company and which formed the basis for the termination of twelve employees, including the grievants. The Reports disclosed, and the Arbitrator found to be proved beyond a reasonable doubt, that all three employees violated Mill Rule 7(a).
The Arbitrator found what might be termed "extenuating circumstances" in each of the three grievances she sustained. She found that Linda Willoughby was the first and only female employee out of fifty-two employees in the "winder room," and was under continual pressure from the men to do her work faster. The Award states that, after five years of working under these circumstances Ms. Willoughby was advised by the Company physician to take an extended leave. Upon return, she was diagnosed as suffering from anorexia nervosa and was enrolled in the Company's Employee Assistance Program, designed to assist employees with personal problems. The Arbitrator found that Ms. Willoughby was approached by Agent Berry eight to twelve times in the eight-to-twelve-week period she knew him, and approached an additional four times in her work area on January 30, 1984. Prior to the last approach on January 30th, she was reprimanded by her foreman in regard to Berry's repeated visits during a period of time when Ms. Willoughby was supposed to be working. On the last approach, the Arbitrator found, Willoughby took a bag from her pocket, gave Agent Berry a small amount of marijuana, about enough for one marijuana cigarette, refused payment, and told him to leave her alone. The Company terminated her employment for possession of marijuana. The Arbitrator found credible Ms. Willoughby's testimony that she never used marijuana at work, noting her service on the Safety Committee and that she had previously suffered a work injury.
The Arbitrator found that Kimberly Denis was the only female employee in her area and that, while any coworker could make life difficult for her, she was especially dependent on her truck driver for a period, Agent Berry whose work could affect her bonus. The Arbitrator found that, *466 after being approached three times, Ms. Denis agreed to try to get Agent Berry $20.00 worth of marijuana and to act as a "go-between," finding the marijuana for Berry from another employee at the plant. The Arbitrator stated, "Granted, Ms. Denis was in a vulnerable position. She was a woman half Berry's age working alone in an overwhelmingly male environment. She was in no position to risk alienating him, and she could not avoid him. But she had not exhausted her alternatives ..." Arbitrator's Award. (herein "Award") at 33.
The Arbitrator found that Agent Berry approached Deborah Graham six or seven times about drugs and that she was justified in concluding that reporting Berry would accomplish little other than making an enemy of someone she would continue to have to work with. The Arbitrator characterized her position as a "damned-if-you-do-damned-if-you-don't" situation. The Arbitrator found that Ms. Graham sold Agent Berry four grams of marijuana for $30.00.
The Arbitrator determined that, although the employees had violated Rule 7(a), the Company was not justified in terminating their employment. In her conclusion, the Arbitrator explained that she was imposing heavy suspensions upon these three grievants in order to impress upon them the seriousness of their misconduct, but that in light of past disciplinary practice for similarly serious Mill Rule 7 violations, it was her determination that discharge was an excessively harsh punishment.
The Arbitrator rejected the Company's position that the plain meaning of the contract provides for immediate discharge in the instance of a violation of Mill Rule 7(a), Award at 19, and found that the Company's decision to terminate these employees was subject to arbitral review. The Arbitrator found that the contract did not unequivocally state that the conduct listed in Mill Rule 7(a) was proper cause for discharge as required by the Management Rights and Seniority Provisions. She reasoned that, while Rule 7 is entitled "Causes for Discharge," it does not say whether such cause "will be" or "may be" grounds for termination. She found that the explanatory sentences following the Rule 7 heading heightened, rather than clarified, the ambiguity of the title (e.g., violation of prescribed rules are cause for disciplinary action of varying degrees of severity," etc.). She further found that the Company's position was not supported by a reading of Mill Rule 7 in conjunction with Mill Rule 8. Mill Rule 8 states that certain violations, other than those listed in Rule 7, are "Causes for Discharge after Appropriate Warning." The Arbitrator found that Rule 8 simply guaranteed a warning before an employee could be terminated for violating its provisions. It did not make clear that a warning would never be the appropriate discipline under the contract for a violation of Rule 7.
The Arbitrator also found that the Company's Safety Policy handbook, albeit a unilateral statement of the Company, did not remove the ambiguity of the Agreement. The handbook states:
... violations of rules printed in red may mean immediate discharge. Violations of other rules may be cause for discharge after appropriate warning.
(Emphasis added.) Language tracking both Mill Rules 7(a) and 8(a), the latter of which, according to the Agreement, requires at least a warning prior to discharge, are printed in red.
Consequently, the Arbitrator concluded that Mill Rule 7 was ambiguous as to whether employees must be terminated and that it did not clearly state the agreement of the parties as to what constitutes proper cause for discharge. Since she found that the Rule was not an expression of the parties' agreement on what constituted proper cause, the Arbitrator determined that it was not an express exemption from the arbitral review process set out in the contract.[2]
*467 The Magistrate found that the Arbitrator's conclusion ignored the plain meaning of the Agreement and therefore recommended that this Court vacate the award. See Hoteles Condado Beach, L.A. Concha and Convention Center v. Union de Tronquistas Local 901, 763 F.2d 34, 41 (1st Cir.1985) quoting Detroit Coil Company v. International Association of Machinists & Aerospace Workers, Lodge No. 82, 594 F.2d 575, 579 (6th Cir.1979) (an arbitrator is without authority to disregard or modify plain and unambiguous provisions). The Magistrate determined that through the Management Rights clause of the Agreement the Company reserved the sole right to discharge employees for proper cause, and that Rule 7 unequivocally makes clear that a violation of its provisions, including subsection (a), is adequate cause for discharge, despite the use of differing language. In recommending vacation of the Arbitrator's award, the Magistrate rejected the union's reliance on Super Tire Engineering Company v. Teamsters Local Union No. 676, 721 F.2d 121 (3d Cir. 1983), and Kewanee Machinery Division v. Teamsters Local 21, 593 F.2d 314 (8th Cir. 1979), which tended to support the Union's position that the Company's decision to terminate these grievants was subject to arbitration.
After careful consideration the Court has determined that under the appropriate standard of review, as articulated by the United States Supreme Court, the First Circuit and other Circuit Courts of Appeal, this Court cannot accept the Magistrate's Recommended Decision to vacate the Arbitrator's award.
The issue here is whether, once the Arbitrator determined that the grievants had violated Mill Rule 7(a), she had authority under the contract to review the Company's chosen disciplinary action. It is the Court's task to determine whether the Arbitrator's construction of the contract provisions, and her resulting determination that the Company's penalty decisions are subject to arbitration, are contrary to the plain meaning of the contract.
The dispute resolution process in this Agreement covers "differences ... as to the meaning or application of the provisions of this Agreement." Thus, the scope of the arbitration clause is broadly defined. In the context of ordering an employer to arbitrate a dispute, the United States Supreme Court has made clear that exclusions from the arbitration process must be specific and unambiguous.
An order to arbitrate ... should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage ... "[S]trictly a function of management" must be interpreted as referring only to that over which the contract gives management complete control and unfettered discretion.
Warrior & Gulf, 363 U.S. 582-83, 584, 80 S. Ct. 1353-54.
The Company argues that the parties have agreed, as evidenced by Mill Rule 7, that the conduct of the grievants in this case constitutes proper cause for discharge. The Union argues that the contract provides that such conduct may be proper cause. The Arbitrator resolved this conflict by concluding that Mill Rule 7 does not unambiguously require dismissal or reserve penalty decisions to the Company. See supra at 465-66. In her discussion of whether she had authority to reduce the Company's chosen penalty, the Arbitrator relied on her lengthy discussion of the ambiguity of the relevant contract provisions. She concluded that based on the ambiguity of Mill Rule 7, there was no express restriction in the Agreement limiting her authority under the arbitration clause. Award at 30.[3] Under these conditions, she stated "it *468 is well established that ... [an arbitrator] has the authority to fashion a lesser penalty[.]" Id. This Court cannot say her reasoning was "so palpably faulty that no judge, or group of judges, could ever conceivably have made such a ruling." Bettencourt, 560 F.2d at 1050.
In fact, the Court of Appeals for the Eighth Circuit did reach similar results in Kewanee and Super Tire. Although the contract in Super Tire did not include the exact language of the "management rights" clause in this case, it did provide that the offense committed by the employee in that case would be "cause for dismissal." In Kewanee, in addition to construing a shop rule and a contract provision, the arbitrator in Kewanee construed "Management Rights" and "proper cause" provisions, both part of the contract, which were very similar to those presented in this case. The Eighth Circuit held that the arbitrator had authority to construe the Management Rights provision, reserving to the company the "sole right to ... discharge employees" as subject to arbitral determination of proper cause. In contrast, in Mistletoe Express Service v. Motor Expressmen's Union, 566 F.2d 692 (10th Cir.1977), relied on by the Company, the contract specifically states that the parties had agreed, prior to the fact, on what conduct constituted "just cause" for termination, exactly the term employed in describing the Company's rights under the contract.[4]
In the instant case, the Court cannot vacate the Arbitrator's award because it would construe "cause" as equivalent to "proper cause," but must enforce the award if the Arbitrator's determination that the contract does not require dismissal or remove this issue from her jurisdiction is conceivably correct. In light of the conflicting authority on this issue, the Court must find that it is at least that.
II. Does the Award Violate Public Policy?
This Court accepts that portion of the Magistrate's recommendation (appended hereto as Exhibit "A") which concludes that the enforcement of this arbitration award does not violate public policy. In accepting the Recommended Decision, the Court also notes Premium Building Products Company v. United Steelworkers of America, AFL-CIO, 616 F. Supp. 512, 516 (N.D.Ohio 1985) (court cannot establish an across-the-board ruling that public policy requires that anyone caught smoking marijuana at their workplace is subject to discharge in all cases), which was issued a few days prior to Misco, Inc. v. United Paperworkers International Union, 768 F.2d 739 (5th Cir.1985). In addition, the Court notes the dissenting opinion in Misco, 768 F.2d at 743 (Tate, J.).
Accordingly, the Company's Motion to Vacate the Award of the Arbitrator is hereby DENIED.
So ORDERED.
EXHIBIT A
PUBLIC POLICY
If the district judge rejects the recommendation of the previous section that the arbitrator's interpretation of the contract is within her authority, such a conclusion would ordinarily end the matter and the *469 arbitration award would be enforced. In a narrow class of cases, however, the courts have declined to enforce an arbitrator's interpretation of a contract because the contract as interpreted would be contrary to public policy. The United States Supreme Court has identified the standards for application of this narrow exception:
If the contract as interpreted by [the arbitrator] violates some explicit public policy, we are obligated to refrain from enforcing it. Such a public policy, however, must be well defined and dominant, and is to be ascertained "by reference to the laws and legal precedents and not from general consideration of supposed public interests."
W.R. Grace & Co., 461 U.S. at 766 [103 S.Ct. at 2183] (citations omitted). The Fifth Circuit Court of Appeals has applied this principle to deny enforcement of a contract interpreted by an arbitrator to require reinstatement of an over-the-road tractor-trailer driver who admitted drinking liquor on the job. Amalgamated Meat Cutters v. Great Western Food Co., 712 F.2d 122 (5th Cir.1983). Federal Motor Carrier Safety Regulations explicitly prohibited the driver's conduct and required the employer to prevent it. This court, affirmed by the First Circuit Court of Appeals, declined to enforce a contract interpreted by an arbitrator to require reinstatement of a postal employee who admitted embezzling over $4,000 worth of money orders. U.S. Postal Service v. American Postal Workers Union, 736 F.2d 822 (1st Cir.1984). In that case, the First Circuit pointed to several federal statutes exemplifying a federal policy regulating the conduct of postal employees and protecting the public in its use of the postal service. In Local 453 v. Otis Elevator Company, 314 F.2d 25 (2d Cir.1963), on the other hand, the court enforced a contract interpreted by an arbitrator to require reinstatement of a company employee who had violated a company rule against gambling on the premises and who was convicted of a misdemeanor. The court found that the public policy represented by the New York statutory prohibition was vindicated by the criminal conviction and further vindicated by a 7-month uncompensated layoff upheld by the arbitrator. The court found that no "greater vindication of the public condemnation of gambling" was required. 314 F.2d at 29.
The issue in these cases is most specifically not whether the court approves the employee's conduct or the arbitrator's remedy ordering reinstatement, but whether enforcing a contract between the parties that requires such reinstatement (for the arbitrator's decision is the binding interpretation of what the contract requires) violates an "explicit," "well defined and dominant" public policy exemplified by "laws and legal precedents." W.R. Grace & Co., supra.[9]
In that connection, Maine State law provides that possession of a "usable" amount of marijuana is a civil violation, subject to a fine of up to $200. 22 M.R.S.A. § 2383. Trafficking and furnishing, which in this case would amount to selling or giving away the marijuana, are Class D crimes, 17-A M.R.S.A. §§ 1103(2)(C), 1106(2)(B), subject to imprisonment for less than one year and a fine of up to $1,000, 17-A M.R.S.A. § 1252(2)(D), 1301(B). Under federal law, possession is a misdemeanor with a penalty of imprisonment of not longer than one year, a fine of $5,000 or both, 21 U.S.C. § 844(a). Sales are felonies with penalties of up to five years imprisonment, up to $50,000 in fines, or both, 21 U.S.C. § 841(b)(1)(C), but a first offender possessing or distributing a small amount may avoid an adjudication of guilt and obtain probation for not longer than one year, 21 U.S.C. §§ 841(b)(4), 844(b)(1).
Thus, state and federal law provides only light penalties in connection with possession, furnishing, or distributing a small *470 quantity of marijuana as is the case here. In Maine, possession is not even criminal, but a civil infraction. As a matter of federal law, if it is a first offense, an adjudication of guilt can be avoided. It is clear, moreover, that the policy of these statutes is directed to the public at large, not as in the Amalgamated Meat Cutters case to the specific category of over-the-road truckdrivers or as in the U.S. Postal Service case to the specific category of postal employees. Although the public policy of discouraging marijuana usage is clear, these statutes do not demonstrate a clear public policy preventing a company from agreeing with a union that it will discipline employees with lengthy periods of unpaid suspension but not outright dismissal if they violate a company rule on the subject.
I recognize that this conclusion is contrary to the decision reached recently by the Fifth Circuit Court of Appeals in Misco, Inc. v. United Paperworkers International Union, 768 F.2d 739 (5th Cir.1985).[10] There, the court declined to enforce an arbitration award interpreting the collective bargaining agreement to require reinstatement of an employee found in possession of marijuana and in the atmosphere of marijuana smoke in another person's car on the company lot. The court found the award to be "against well defined public policy the Louisiana law against possession of marijuana and the public policy, embodied in the employer's rule, against introduction of drugs into the workplace and consequent operation of dangerous machinery by persons under their influence." 758 F.2d at 741. With all due respect to the Fifth Circuit's conclusion, I believe it fails to follow the standards set forth in W.R. Grace, supra. As stated in Muschany v. United States, 324 U.S. 49, 66 [65 S. Ct. 442, 451, 89 L. Ed. 744] (1945) (a case referred to in W.R. Grace, supra), "[a]s the term `public policy' is vague, there must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy." Thus, even though there may be a general state law against marijuana possession or usage, that does not demonstrate a well defined and dominant explicit public policy to prevent employers from agreeing that they will discipline their employees who violate that law in some way other than outright termination. Misco's description of the risks to workplace safety when the dangerous machinery involved in that case and this case is used by those under the influence of drugs or alcohol involves "general consideration of supposed public interest" rather than the explicit laws and legal precedents required by W.R. Grace. The parties here have not cited the court to any statutory or regulatory statements requiring termination of employees like these. Indeed, Rule 8 of the Agreement, which is not challenged here, clearly provides that the Company has explicitly agreed to give a warning to an employee who reports to duty under the influence of alcohol or narcotics rather than immediately terminate him or her. If a court's analysis of workplace safety is to govern the outcome, a court would have to be prepared to invalidate the explicit discipline provided by a rule like Rule 8 since an employee under the influence is far more imminently dangerous to workplace safety than the incidents here. Other caselaw from the Fifth Circuit has recognized that the duty or public policy of providing a safe workplace is not alone sufficient to justify a court in voiding a collective bargaining agreement as interpreted by an arbitrator. Johns-Manville Corp. v. International Ass'n of Machinists, 621 F.2d 756 (5th Cir.1980).
I, therefore, conclude that the contract as interpreted by the Arbitrator is not contrary to public policy.[11]
*471 DATED at Portland, Maine, this 17th day of January, 1986.
/s/ D. Brock Hornby
D. Brock Hornby
United States Magistrate
NOTES
[1] Marshall Buhelt, who was also a grievant in this proceeding, is now deceased. The Arbitrator denied his grievance and the Union did not seek to vacate the Arbitrator's decision.
[2] The Arbitrator further determined that past practice and bargaining history also did not support the Company's position that the meaning of the agreement plainly mandated discharge, and that the Company had not given sufficient notice of a change in policy.
[3] This finding is predicated on a determination that Mill Rule 7 does not require the Company to discharge an employee who violates its provisions. The Arbitrator made such a finding based on her determination, inter alia, that the language of the Rule is ambiguous. See supra at 466. The same ambiguity which formed the basis for the Arbitrator's determination that the Rule does not require termination, provides the grounds for a finding that Rule 7 does not expressly remove a termination decision from arbitration.
[4] The Court notes that in the context of determining the ambiguity vel non of the contract, the Arbitrator stated that the Company, by choosing to retain discretion over discipline, gave "a third party neutral the same discretion when reviewing the propriety of those decisions." Award at 20. This statement, taken alone, is not necessarily correct. An employer may specify in a collective bargaining agreement that it has discretion over the degree of punishment warranted by employee violations and that such decisions are not subject to arbitral review (unless arbitrary and capricious). See, e.g., Mistletoe, 566 F.2d 692. However, this sentence does not invalidate the rest of the Arbitrator's analysis regarding the ambiguity of the contract or her reasoning that if Mill Rule 7 does not expressly provide that possessing or selling marijuana on the job is proper cause for discharge, it is not an express exemption from arbitration of the Company's termination decision. See Award at 30.
[9] The Union attempts to have the court consider the conduct of the police undercover operation in its analysis of public policy. That conduct, however, plainly has no bearing on whether enforcement of the collective bargaining agreement, as interpreted by the Arbitrator, is contrary to public policy.
[10] Misco failed even to cite the W.R. Grace decision and based its analysis solely upon that provision of Amalgamated Meat Cutters which dealt with the danger of the truckdriver's conduct rather than the specific laws which had been violated.
[11] I would reject the Company's argument, Petition for Vacation of Award of Arbitration, ¶ 15, that the award must be vacated because "the Arbitrator refused to accept and consider relevant judicial precedent published after filing of post hearing briefs with the Arbitrator (and also refused to consider S.D. Warren's reply brief)...." The Arbitrator like a court, must be able to invoke cloture on proceedings so that she may issue a decision.
I have not addressed the argument whether the Arbitrator improperly declined to consider certain evidence or whether she properly interpreted the so-called Greenlaw award, a previous arbitral decision involving the Company and the Union. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260947/ | 632 F. Supp. 306 (1986)
Clifford LOVELACE
v.
Raymond LOPES.
Civ. No. H-84-735 (TEC).
United States District Court, D. Connecticut.
March 18, 1986.
*307 Jon C. Blue, Asst. Public Defender, Office of the Chief Public Defender, New Haven, Conn., for petitioner.
John Massameno, Asst. State's Atty. Office of the Chief State's Attorney, Wallingford, Conn., C. Robert Satti, State's Atty. for the Judicial Dist. of New London, New London, Conn., for respondent.
RULING ON APPEAL FROM THE JUDGMENT OF THE MAGISTRATE
CLARIE, Senior District Judge.
Clifford Lovelace is an inmate at the Connecticut Correctional Institution at Somers, Connecticut. He petitioned this federal court for a writ of habeas corpus on March 30, 1984, complaining that his state court conviction and confinement were illegal. He represents that his conviction of the crime of murder, Connecticut General Statutes Sec. 53a-54a was obtained in violation of his federal constitutional rights. The Court referred the matter to United States Magistrate F. Owen Eagan for a hearing, and the parties agreed that it could be heard for all purposes. By ruling dated July 15, 1985, Magistrate Eagan held that "[t]he trial court's order of a mid-trial psychiatric examination of the petitioner denied the petitioner his right to due process of law, in violation of the fifth and fourteenth amendments." Pursuant to this finding, the Magistrate granted the petition, but stayed execution of judgment pending an appeal and review by this Court.
After studying the trial transcript and the entire record of the proceedings before the Magistrate the Court sustains the Magistrate's finding that the petitioner's privilege against self-incrimination was not violated. However, the Court overrules the Magistrate's finding that the trial court's order for the mid-trial psychiatric examination deprived the petitioner of a fundamentally fair trial. Therefore, the judgment of the Magistrate is reversed and the petition for a writ of habeas corpus is denied.
I. Facts
A. Procedural History
The petitioner was found guilty by a jury of the crime of murder, Conn.Gen.Stat. *308 § 53a-54a, in Connecticut Superior Court for the Judicial District of New London on March 19, 1981. On June 22, 1981, he was sentenced to a term of imprisonment of eighteen years to life, which term he is currently serving at the Connecticut Correctional Institution, at Somers. The conviction was affirmed on appeal by the Connecticut Supreme Court on December 13, 1983. State v. Lovelace, 191 Conn. 545, 469 A.2d 391 (1983). The United States Supreme Court denied the petition for writ of certiorari on March 19, 1984. Lovelace v. Connecticut, 465 U.S. 1107, 104 S. Ct. 1613, 80 L. Ed. 2d 142 (1984).
On March 30, 1984, pursuant to 28 U.S.C. § 2254, Clifford Lovelace filed a petition for a writ of habeas corpus with this Court. Under the provisions of 28 U.S.C. § 636(c) and Rule 4(A)(1) of this District's Local Rules for United States Magistrates, the parties agreed to proceed to a hearing and judgment before United States Magistrate F. Owen Eagan; however, any appeal by either party would be reviewed in this Court. See Rule 4(A)(2), Local Rules for United States Magistrates. An evidentiary hearing was held before the Magistrate on April 9, 1985. The Magistrate rendered a "Recommended Decision" on July 15, 1985, in which he found that the petitioner's right to due process of law had been violated by the trial court's decision to grant the state's motion to compel the defendant to submit to an additional psychiatric examination during trial. In light of this finding, the Magistrate granted the petition and ordered that the writ issue. Judgment was entered on July 19, 1985. The Magistrate stayed execution of the judgment pending appeal to this Court. See Rule 4(B)(3), Local Rules for United States Magistrates. The State filed a timely notice of appeal, the parties filed briefs, and the Court heard oral argument of counsel on January 21, 1986.
B. The Petitioner's Trial
The trial of Clifford Lovelace began on April 29, 1981. The state presented evidence of three confessions of the petitioner. He admitted in those confessions that on April 4, 1980 he shot and killed his wife, Linda Sue Lovelace, in their home. Indeed, the petitioner concedes that "the only real issue at the trial was his mental state at the time of the homicide."
The confessions and the testimony of witnesses who had seen Mr. Lovelace before and after the shooting revealed that the petitioner was distraught because his wife had told him that she had been unfaithful to him. The confessions also described the events of the fateful morning of April 4, 1980. It was then that the victim returned from her mother's home to get some clothes. The couple argued about the victim's infidelity. The petitioner sought to discover the identity of his rival. He then shot his wife twice, first in the leg and then in the chest, with a 12-gauge shotgun at close range.
The petitioner began presentation of his defense on the afternoon of May 5, 1981. Counsel focused on the issue of the petitioner's mental state, at the time of the incident. He called two psychiatrists in support of his claim that he had acted under the influence of an extreme emotional disturbance. This defense, if proved, could serve to mitigate his liability for murder to the lesser crime of manslaughter. See State v. Elliot, 177 Conn. 1, 411 A.2d 3 (1979).
The nature of the pretrial psychiatric examinations and discovery conducted in the case are important elements of the petitioner's claim. Dr. Hans Langhammer was the first psychiatrist to examine the petitioner. Dr. Langhammer, at the request of the public defender, performed the first of his two examinations of Mr. Lovelace on April 8, 1980four days after the homicide. On June 6, 1980, the State of Connecticut moved, pursuant to § 760 of the Connecticut Practice Book, for a psychiatric examination of the petitioner. The motion was granted and Dr. Robert Miller was appointed by the trial court for this purpose. Dr. Miller's attempt to examine Mr. Lovelace was frustrated, however, because the petitioner was under the impression that he *309 was not required to discuss the case with the court appointed psychiatrist.
The court on August 19, 1980, granted the state's "Motion for Further Order Re: Psychiatric Examination." Since Dr. Miller felt that he was not "in a position to complete the examination," in light of the initial unsuccessful attempt, the court appointed Dr. Alexander Parthenis. This examination took place on September 9, 1980. Pursuant to Connecticut Practice Book §§ 758-759, the defendant filed notice of his intent to introduce expert testimony at trial concerning his mental state at the time of the crime.
Dr. Langhammer testified so as to support his conclusion that the petitioner had acted under the influence of an extreme emotional disturbance. Dr. Parthenis testified that he had reached the same conclusion. The defense rested on May 6, 1981.
The state had planned to call Dr. Miller as an expert witness to testify in response to hypotheticals.[1] Dr. Miller was ill, however, and trial was recessed until Tuesday, May 12, 1981. When it became clear that Dr. Miller's illness was serious and he would be unavailable, the state moved for another psychiatric examination. Over the petitioner's objections, the motion was granted on May 12 and Dr. James Alexander was appointed to examine the petitioner. The examination took place on May 13 and Dr. Alexander testified on Friday, May 15. Dr. Alexander testified that although the petitioner suffered from an emotional disturbance at the time of the homicide, he could not characterize it as "extreme."
The case went to the jury on May 19, 1981 and the jury found the defendant guilty of murder.
C. Appeal to the Connecticut Supreme Court
The petitioner raised "a single claim in three parts" before the Connecticut Supreme Court. State v. Lovelace, 191 Conn. 545, 548, 469 A.2d 391 (1983). First, he argued that "[t]he trial court's order compelling the defendant to submit to a second psychiatric examination was not permitted by the Practice Book." He also raised two constitutional claims. He argued that the trial court's order violated the petitioner's Fifth and Fourteenth Amendment right not to incriminate himself and that it violated his Fourteenth Amendment right to due process of law.
The State's Supreme court, in a unanimous decision, rejected all three arguments. As to the claimed violation of the Connecticut Practice Book, the Supreme Court held that "[t]he inability of an expert witness to testify due to illness is sufficient `good cause' to permit the court to exercise its discretion in favor of ordering an additional psychiatric examination during the trial." Id. at 550, 469 A.2d 391. The question of state law is not now before the Court.
More pertinent to the instant petition for a writ of habeas corpus are the two constitutional issues ruled upon by the Connecticut Supreme Court. As to the petitioner's claimed denial of his privilege against selfincrimination, the Connecticut Supreme Court noted that once the petitioner raised the issue of his mental state he "expose[d] his mental processes to reasonable examination by the state." Id. at 552, 469 A.2d 391. The court rejected the petitioner's claim that, despite the initial waiver, his privilege was renewed after the state's first examination. Id. at 550-51, 469 A.2d 391. Instead, the court held that the propriety of an additional examination would be governed "by the exercise of judicial discretion and the requirements of due process." Id. at 552, 469 A.2d 391.
As to the claimed due process violation, the Connecticut Supreme Court initially noted that such claims necessarily must be decided on a case by case basis. Id. Characterizing the petitioner's "objection as one of timing," the court concluded that the trial court's order authorizing the midtrial examination did not "unconstitutionally *310 tip" the "balance of forces between the accused and his accuser." Id. at 552-53, 469 A.2d 391, quoting Wardius v. Oregon, 412 U.S. 470, 474, 93 S. Ct. 2208, 2212, 37 L. Ed. 2d 82 (1973). The court reasoned that "[a]t some point, ordering repeated examinations will deprive a defendant of a fair trial," and that a trial court should, before ordering such an examination, consider as relevant factors "the potential for harassment, the invasiveness of the examination and unfair surprise." 191 Conn. at 553, 469 A.2d 391. Under the facts of the petitioner's case, specifically the absence of a claim of harassment or undue burden and the "emergency created by Dr. Miller's unforeseen illness," the Connecticut Supreme Court held that the petitioner had not been denied a fair trial. Id. at 554, 469 A.2d 391.
II. Proceedings Before the United States Magistrate
The Magistrate held an evidentiary hearing on April 9, 1985 and rendered his decision on July 15, 1985. The petitioner raised before the Magistrate the two constitutional claims that had been rejected by the Connecticut Supreme Court.
As to the claimed infringement of the petitioner's privilege against self-incrimination, the Magistrate concluded that "multiple examinations are not prohibited." Citing Estelle v. Smith, 451 U.S. 454, 465, 101 S. Ct. 1866, 1874, 68 L. Ed. 2d 359 (1981), the Magistrate noted that "it would be unfair to permit the defendant to introduce an issue into the case but, by his silence, to prevent the government from gathering evidence on the issue from the best, perhaps only, source." The Magistrate did not find any support for the petitioner's claim that the state should be limited to one examination, but found that the "prosecution is entitled to a fair opportunity to obtain evidence on the issue."
On the due process question, the Magistrate found that "the illness of a non-examining psychiatric expert [did not] necessitate [] a mid-trial psychiatric examination of the petitioner." Specifically, the Magistrate held that the trial court "undermined the purpose of the disclosure rules" and "gave a positive advantage to the State." He concluded that the trial court's order was "fundamentally unfair." Once the Magistrate found what he believed to be an error of constitutional dimensions, he determined that the error was not harmless under Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).
III. Standard of Review
Under 28 U.S.C. § 636(c)(4) and Rule 4(B)(2) of the Local Rules for United States Magistrates, the instant matter is before this Court in the form of an appeal. "The district court may affirm, reverse, modify, or remand the magistrate's judgment." 28 U.S.C. § 636(c)(4). Moreover, "[t]he scope of an appeal to the referring Judge shall be the same as on appeal from a judgment of this Court to the Court of Appeals." Rule 4(B)(2) of the Local Rules for United States Magistrates. Hence pursuant to Fed.R. Civ.P. 52(a) "[f]indings of fact shall not be set aside unless clearly erroneous."
IV. Discussion of Law
On appeal from the judgment of the United States Magistrate, the respondent-appellant (hereinafter respondent), the State of Connecticut, urges two closely related grounds for reversal. First, the respondent urges the Court to "correct the factual inaccuracy that has plagued this case from the outset." The respondent argues that the Connecticut Supreme Court and the United States Magistrate "analyzed the petititioner's claim under an inaccurate representation of the underlying facts." Specifically, this claim involves characterizing the testimony that would have been offered at trial by Dr. Robert Miller. The State argues that Miller's initial attempt to interview Mr. Lovelace was not entirely unsuccessful and provided him with sufficient information about Mr. Lovelace's personal history and background that Miller's testimony could not fairly be characterized as being based entirely on hypothetical questions. Since this Court *311 disposes of this appeal in the respondent's favor "even without correction of the record," it is unnecessary to pass on the propriety of such a correction at this late stage in the proceedings. The Court notes, however, not only that the State Supreme Court's factual findings are entitled to substantial deference, 28 U.S.C. § 2254(d), but also that the Magistrate's findings of fact cannot be disturbed unless "clearly erroneous." Fed.R.Civ.P. 52(a).
The respondent's second, and persuasive, claim is that the trial court's order did not deprive the petitioner of a fundamentally fair trial. Although the Magistrate found that the petitioner's due process rights had been violated and that the order had rendered the petitioner's trial "fundamentally unfair," the Magistrate did not clearly outline the standard by which claims such as the petitioner's must be judged. Only when the stringency of that standard is fully borne in mind does it become apparent that, whatever might be said about the propriety of the trial court's order, it was not an error of constitutional dimensions depriving the defendant of his right to a fundamentally fair trial.
A federal court, in reviewing a habeas petitioner's claim that his state court conviction was obtained in violation of his federal constitutional rights, has a narrowly circumscribed role. It is not the province of the federal court to overturn a state court conviction if the petitioner's trial was imperfect or even if the trial court committed an error or an abuse of discretion. The habeas court's limited role is to determine whether the proceedings in the state court contravened the petitioner's federal constitutional rights.
That role is even more narrow where, as here, the petitioner's due process claim does not involve the denial of a specific guarantee of the Bill of Rights but, more generally, the denial of his right to a fundamentally fair trial. Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 1871, 40 L. Ed. 2d 431 (1974). For the petitioner to prevail in such a case "[i]t must be established not merely that the [trial court practice or ruling complained of] is undesirable, erroneous, or even `universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 146, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973). In determining whether the petitioner was deprived of a fundamentally fair trial, the "entire proceedings" in the state court must be examined to see whether the alleged error "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly, 416 U.S. at 643, 94 S. Ct. at 1871.
Due process is a flexible concept. In order to determine whether a criminal defendant has been deprived of a fair trial, and of due process of law, the court must confine itself to the case before it. The narrow inquiry, then, is whether, "under the facts and circumstances of this case the rulings of the trial court deprived [the petitioner] of a fair trial." Chambers v. Mississippi, 410 U.S. 284, 303, 93 S. Ct. 1038, 1049, 35 L. Ed. 2d 297 (1973).
In order to establish that any error of the trial court "so infected the trial with unfairness," Donnelly, 416 U.S. at 643, 94 S. Ct. at 1871, as to rise to the level of constitutional error, the petitioner must go beyond mere "speculation" and make out a claim of "demonstrable reality." Beck v. Washington, 369 U.S. 541, 558, 82 S. Ct. 955, 964, 8 L. Ed. 2d 98 (1962), quoting United States ex rel. Darcy v. Handy, 351 U.S. 454, 462, 76 S. Ct. 965, 970, 100 L. Ed. 1331 (1956). That is, the petitioner must establish some harm or prejudice resulting from the claimed error. This case does not involve a state court ruling or procedure that can be characterized as "presumptively prejudicial," nor does the petitioner claim that it does. Instead, the parties agree that "the true measure of prejudice in this case must look to any advantage an erroneous ruling gave the State that it would not otherwise have had." Specifically, that "advantage" consisted of the difference between the rebuttal expert testimony of a psychiatrist who testifies in response *312 to hypothetical questions and the rebuttal expert testimony of a psychiatrist who testifies on the basis of an examination. This difference is the crux of the petitioner's claim. He concedes that under the extenuating circumstances of Dr. Miller's illness the State would have been entitled to obtain another expert psychiatrist to testify in response to hypothetical questions. He also concedes that a second examination of the petitioner, if conducted pretrial, would not have violated his due process rights. Thus the difference in "credibility" and "effectiveness" of the two types of witnesses, along with the timing of the order, is claimed to amount to an error of constitutional dimensions. Under the circumstances of this case the trial court's decision did not tip the "balance of forces between the accused and his accuser." Wardius v. Oregon, 412 U.S. 470, 474, 93 S. Ct. 2208, 2212, 37 L. Ed. 2d 82 (1973).
The Magistrate ruled that considerations of fairness in the discovery process and the intrusive nature of psychiatric examinations dictated that a trial court must consider various factors before authorizing an additional examination. The Magistrate criticized the trial court in this case for having considered, in the Magistrate's view, only the "asserted need for the additional examination." He concluded that there was no "compelling reason" to order the examination and that Dr. Miller's illness did not "necessitate" the midtrial examination. Though the trial court's ruling may have been "undesirable, erroneous, or even `universally condemned.'" Cupp, 414 U.S. 146, 94 S. Ct. 400, "not every trial error or infirmity which might call for supervisory powers correspondingly constitutes a `failure to observe that fundamental fairness essential to the very concept of justice.'" Donnelly, 416 U.S. at 642, 94 S. Ct. at 1871, quoting Lisenba v. California, 314 U.S. 219, 236, 62 S. Ct. 280, 290, 86 L. Ed. 166 (1941). Thus the mere fact that the procedure followed by the trial court could have, in the Magistrate's view, been improved upon, does not elevate the error to the level of a due process violation.
The petitioner had an opportunity, which he exercised, to cross-examine the state's rebuttal witness. This cross-examination was thorough. Whether the difference between Dr. Alexander's testimony and that of another psychiatrist, who would have testified only in response to hypothetical questions, prejudiced the defendant does not rise above speculation. The state trial court's order, which was precipitated by the unforeseen unavailability of the expert psychiatric witness it had planned to call at trial, was an attempt to provide the State with a "fair opportunity to obtain evidence on the issue" of the defendant's mental state. Whether it was proper or improper, the decision was not so egregious as to deprive the petitioner of a fundamentally fair trial.
Having disposed of the petitioner's due process claim, it is appropriate for the Court to consider the petitioner's self-incrimination claim of error. He argued before the State Supreme Court, the Magistrate and to this Court, that the second compelled psychiatric examination violated his privilege against self-incrimination. The Connecticut Supreme Court and the United States Magistrate have both rejected the petitioner's contention on this issue. The Court adopts the Magistrate's findings that nothing "in the rationale offered by the Supreme Court in Estelle v. Smith [451 U.S. 454, 465, 101 S. Ct. 1866, 1874, 68 L. Ed. 2d 359 (1981)] ... indicate[s] that when a defendant raises the issue of his mental state at the time of the offense charged, the prosecution becomes entitled to one, but only one, examination."
Conclusion
For the foregoing reasons, the judgment of the United States Magistrate is reversed and the petition for a writ of habeas corpus is denied.
SO ORDERED.
NOTES
[1] This fact was disputed for the first time at this stage of the proceedings. For the reasons stated infra, at 309-310, it is unnecessary to consider disturbing the Magistrate's finding of fact. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260955/ | 632 F. Supp. 9 (1986)
MAIN LINE FEDERAL SAVINGS AND LOAN ASSOCIATION
v.
Frederick P. JOYCE and Helen B. McHugh a/k/a Helen Joyce
v.
Samuel PIERCE, Secretary of Housing and Urban Development
and
United States Department of Housing and Urban Development.
Civ. A. No. 85-6830.
United States District Court, E.D. Pennsylvania.
April 8, 1986.
*10 Frank Federman, Philadelphia, Pa., for plaintiff.
Serena Dobson, Asst. U.S. Atty., Philadelphia, Pa., for Federal defendants.
Henry J. Sommer, Community Legal Services, Philadelphia, Pa., for Joyce, et al.
MEMORANDUM and ORDER
JOSEPH S. LORD, III, Senior District Judge.
Plaintiff, a residential mortgage lender, filed this mortgage foreclosure action in the Philadelphia Court of Common Pleas against defendants Frederick and Helen Joyce, residential mortgage debtors. Additional defendant Department of Housing and Urban Development removed this suit to federal court. Defendant Helen Joyce has filed a motion to dismiss. For the reasons that follow defendant's motion will be granted.
Before a residential mortgage lender may commence any legal action to recover under a residential mortgage obligation it must make certain specific disclosures to the residential mortgage debtor. 41 Pa. S.A. § 403 (1985). Giving proper notice pursuant to § 403 is a jurisdictional prerequisite to the mortgage lender's suit, and failure to do so deprives the court of subject matter jurisdiction. See Delaware Valley Sav. & Loan Ass'n v. Mullin, No. 3150, November Term, 1984 (C.P.Phila. County, December 17, 1985).
Defendant raises numerous alleged defects in plaintiff's notice. I need only consider one to determine that I lack subject matter jurisdiction to hear this suit.
Proper notice must "clearly and conspicuously state ... [t]he right of the debtor to cure the default ... and exactly what ... sum of money, if any, must be tendered to cure the default...." 41 Pa.S.A. § 403(c)(3).
Plaintiff's notice informed the defendants that they were in default because they had failed to make four monthly payments of $221.00 each and six monthly payments of $227.00 each. It also informed defendants that they were liable for late and other charges totaling $78.16. When the proper calculations are made from the information provided in the notice it is apparent that the defendants owed the plaintiff $2,324.16. Plaintiff, however, informed the defendants that in order to cure their default they would be required to tender $2,623.60. The notice lacks any explanation as to how plaintiff arrived at this figure.
"[E]very debtor is at least entitled to know precisely how the total amount required to cure his default has been calculated." Fidelity Consumer Discount Co. v. Staton, No. 3847, May Term, 1981, slip op. at 5 (C.P.Phila.County, January 18, 1982). Inexplicable calculations or mathematical errors constitute improper notice and are grounds for dismissal. See id.; Credico Consumer Discount Co. v. Jones, No. 1129, November Term, 1982 (C.P.Phila. County, October 21, 1983).
Plaintiff's notice to the defendants was deficient in this respect and its complaint, therefore, will be dismissed. I express no opinion concerning the other alleged defects in plaintiff's notice raised by the defendants. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260968/ | 632 F. Supp. 503 (1986)
Gerald M. SMITH, By and Through Eugene SMITH, Jr., as his Next Friend, Petitioner
v.
William ARMONTROUT, Respondent.
No. 85-4647-CV-C-5.
United States District Court, W.D. Missouri, C.D.
April 5, 1986.
*504 Richard Sindel, Sindel, Sindel & Sindel, St. Louis, Mo., for petitioner.
Kelly Mescher, Asst. Atty. Gen., Jefferson City, Mo., for respondent.
ORDER
SCOTT O. WRIGHT, Chief Judge.
Gerald Smith, a death row inmate at the Missouri State Penitentiary, has stated that he does not want to pursue his post-conviction remedies and that he wants to proceed *505 with his execution. The issue before the Court is whether Smith has the capacity to make a rational choice with respect to continuing or abandoning further litigation or whether he is suffering from a mental disorder which substantially affects his ability to make a rational decision. For the reasons set forth below, the Court finds that Smith's decision is based on rationality and is not the product of a mental disorder. Accordingly, the next-friend habeas corpus petition filed by Gerald Smith's brother must be dismissed for lack of standing.
I. Background
In 1981, Gerald Smith was convicted and sentenced to death for the 1980 bludgeoning of one Karen Roberts. On direct appeal, Smith's conviction and death sentence were affirmed. See State v. Smith, 649 S.W.2d 417 (Mo.1983) (en banc). Smith next commenced a collateral attack on his conviction in the Circuit Court for the City of St. Louis pursuant to Mo.S.Ct.R. 27.26. Smith subsequently moved to dismiss that proceeding. On October 5, 1984, the state circuit court sustained that motion and dismissed the 27.26 proceeding without conducting a formal hearing on the issue of Smith's competency to waive his post-conviction remedies.[1] On October 9, 1984, the Missouri Supreme Court held a special session and summoned Smith to appear before it. At that time, Smith advised the judges of that court of his wish to abandon further appeals.[2] The Missouri Supreme Court granted Smith's wish and set his execution for November 9, 1984.
On November 5, 1984, Gerald Smith's brother, Eugene, filed a next-friend petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 6, 1984, this Court found that a legitimate issue had been raised concerning Gerald Smith's competency[3] and, accordingly, entered an order staying Smith's execution pending resolution of the competency issue. See Smith v. Armontrout, 604 F. Supp. 840 (W.D.Mo. 1984). By agreement of the parties, Smith was transferred to the Federal Medical Center in Springfield, Missouri, for a comprehensive psychiatric examination and evaluation.[4] A hearing on the issue of Smith's competency was set for March 5, 1985.
Before the competency hearing took place, however, Smith changed his mind and announced that he wished to pursue his post-conviction remedies. Consequently, the competency question became moot *506 and Gerald Smith was substituted for his brother as the sole petitioner. The Court thereupon treated Smith's case like any other habeas corpus proceeding. Several months later, it became apparent that Smith had not exhausted his state court remedies with respect to each of his claims for relief. Accordingly, pursuant to the rule of Rose v. Lundy,[5] this Court had no choice but to dismiss Smith's petition without prejudice and turn the matter over to state courts.
In the meantime, Gerald Smith once again announced that he wanted to abandon all further attacks on his conviction and death sentence. The Missouri Supreme Court promptly set January 6, 1986 as Gerald Smith's execution date. Eugene Smith quickly responded by filing a next-friend petition pursuant to Missouri Supreme Court Rules 27.26 and 52.02 on behalf of his brother in the Circuit Court for the City of St. Louis. In his petition, Eugene Smith alleged that Gerald Smith was not competent to make a rational decision about abandoning further appeals. At the same time, Eugene Smith filed a motion in the Missouri Supreme Court to stay Gerald Smith's execution pending a current evaluation of his competency. That motion was denied in one line and without any explanation.
Eugene Smith then went back to the Circuit Court for the City of St. Louis and obtained a ruling from Judge Hamilton of that court that a next-friend 27.26 petition was a viable procedure under Missouri law.[6] With Judge Hamilton's ruling in hand, Eugene Smith returned to the Missouri Supreme Court and renewed his motion for a stay of execution until the circuit court had a chance to resolve the question of Gerald Smith's competency. The Missouri Supreme Court, on its own motion, postponed the execution date until January 15, 1986. On January 8, 1986, however, the Missouri Supreme Court issued an order which held that the next-friend 27.26 proceeding in state court was a legal nullity and that no further extensions of Gerald Smith's execution date would be granted. The Missouri Supreme Court explained that, in its view, the October, 1984 state court ruling that Gerald Smith was competent foreclosed all further inquiry into the matter. Significantly, the Missouri Supreme Court did not hold a hearing or invite oral argument before handing down its decision.
In view of the Missouri Supreme Court's statement that there were no longer any state remedies available to Gerald Smith or his next-friend, the battleground returned to this Court. On December 27, 1985, Eugene Smith filed a brand-new next-friend petition in this Court. Once again, the threshold question before the Court was whether Gerald Smith was competent to waive his post-conviction remedies. On January 9, 1986 the day after the Missouri Supreme Court washed its hands of the Gerald Smith case this Court was called upon to stay Smith's execution pending an up-to-date determination of his competency.[7] At the same time, the Court ordered *507 that Smith be transferred to the Federal Medical Center in Springfield, Missouri, for an updated examination and evaluation. A hearing was set for February 18, 1986.
The hearing commenced on schedule. The testimony of six expert witnesses was received in evidence.[8] The Court also received written reports compiled by three non-testifying experts Dr. Daniel, Dr. Harry, and a clinical psychologist, Richard Fontana as well as the written reports of the testifying experts, numerous medical records concerning Gerald Smith, and a variety of other documentary exhibits. In addition, two of Gerald Smith's fellow inmates testified specifically concerning Smith's behavior on death row and more generally about the conditions of confinement encountered by death row inmates. Finally, Gerald Smith testified in person for approximately three hours. The bulk of *508 Smith's testimony came during cross-examination by petitioner's counsel.
Overall, the adversary hearing lasted approximately three full days. The testimony of the witnesses covered Gerald Smith's entire life, from his early childhood to his very recent past. Although some of the evidence received was not particularly helpful, the hearing demonstrated that the question of Smith's competency was a close one. More importantly, perhaps, the hearing also demonstrated the irreplaceable value of the adversary system as a tool for ascertaining the "truth."[9] Although no one will ever be able to say with absolute certainty whether or not Gerald Smith is competent to waive his post-conviction remedies, this Court is now prepared to tackle this threshold question with the confidence that its decision is based upon complete information.
II. The Issue
As noted above, the issue presently before the Court is whether Gerald Smith has the capacity to make a rational choice with respect to continuing or abandoning further litigation or whether he is suffering from a mental disorder which substantially affects his ability to make a rational decision. According to the Court's research, this standard was first articulated by the United States Supreme Court in Rees v. Peyton, 384 U.S. 312, 314, 86 S. Ct. 1505, 1506, 16 L. Ed. 2d 583 (1966) (per curiam). Since Rees, several federal courts have been confronted with the situation now facing this Court and, in each instance where there was at least some evidence of incompetence, the court has faithfully analyzed the issue after conducting an evidentiary hearing.[10] Over the last twenty years, the courts have come to describe the issue as whether or not the death row inmate is "competent" to forego his post-conviction remedies.[11]
Although the issue has been phrased in terms of "competency," it is important to note that the applicable standard is not the same as the standard for determining whether a criminal defendant is competent to stand trial.[12] Nor is the crucial issue whether or not Gerald Smith can be classified as "mentally ill."[13] Instead, the central question is whether Gerald Smith's decision to forego further appeals *509 is based on a rational thought process or whether his decision is a product of a mental disorder. It bears emphasis that the key to this issue is the rationality underlying Gerald Smith's decision.[14] In order to find that Smith's decision is rational, however, this Court need not agree that Smith's decision is the "correct" one or the "best" one; the question is only whether or not his decision is based on a rational understanding of the circumstances before him.
III. The Evidence
The story of Gerald Smith is a true-life tale of a boy who never grew up. Smith was born in St. Louis, Missouri, on October 7, 1958. He was the third of nine children. As a young child, Smith sustained several serious head injuries. When he was less than two years old, he was admitted to St. Louis City Hospital for lead poisoning. The lead level in his body was dangerously high. No one knows if that incident had any long-term effects.
Smith's family life was disruptive and unstable. His father was an alcoholic who frequently beat both mother and children. On several occasions, Smith's mother would take the children and move away from the father, only to later return. Once, the mother ran away with the children to California. The father found them in a motel and there was a reconciliation. The mother and father left the motel for a while. Meanwhile, someone reported to the authorities that a group of children had been left unattended at the motel. The police picked the children up. They remained in the custody of the State for a week before being reunited with their parents. The family returned to St. Louis. They continued to change addresses every six months.
Smith began playing hookey from school and running away from home at age 7. At age 10, he became a petty thief. At age 13, he began using drugs and alcohol. He quit going to school after the eighth grade.
At age 15, Smith began getting into more serious trouble and was sent to the Missouri Hills School for Boys, a juvenile detention facility. After being released, Smith floated along aimlessly. He continued to steal to earn money. He never worked a steady job. He had a girlfriend whom he abused physically. He never had a stable relationship with his girlfriend even though she bore his child, Tina, on July 23, 1979.
Smith was arrested on eight separate occasions between September, 1979 and August, 1980. He was admitted to the Alexian Brothers Hospital in St. Louis in 1980 after he threatened to commit suicide by jumping off a three-story building. Smith was diagnosed as suffering from depression and a personality disorder. One examiner noted that Smith's "chronic obsessive thinking of hostile thoughts and activity is a problem of mammoth proportions." Another stated that Smith was "really a total catastrophe." He was finally released from the hospital, despite the fact that his prognosis was extremely poor.
On September 8, 1980, Smith committed the murder for which he now faces the death penalty. He killed the victim, Karen Roberts, with a heavy iron bar. Smith said he killed her because she gave him a dose of the clap which caused his fiance (and the mother of his child) to leave him.
According to the testimony at the competency hearing, Smith's attorney and the St. Louis City prosecutor were on the brink of striking a deal for a second-degree murder guilty plea. Before the plea bargain was finalized, however, a devastating admission by Smith came to light. In a letter to the St. Louis Globe-Democrat, which at that time was a major St. Louis newspaper, Smith wrote:
"I Gerald Smith killed Karen Roberts. I have been looking for her for 4 months so I could kill her. On September the 8, 1980, I finally got my chance to kill her *510 and I done just that. I had a gun on me at the time but I thought shooting her would be to damn good for her. I wanted her to feel some pain so I beat her little lousy head in. If she were living now I would do it all over again."
The letter was signed "Gerald Smith, the cold blooded killer." After learning about the letter, the prosecutor called off all plea negotiations. Smith was charged with and convicted for capital murder.
At the competency hearing, Smith testified that, in fact, he had not planned to kill Karen Roberts. He also stated that he did not really have a gun on him at the time. When asked why he wrote those things in the letter which effectively sealed his fate, Smith testified that he did not know.[15]
Smith's pattern of self-defeating behavior continued after his conviction. At first, he announced that he did not want to pursue a direct appeal. He wrote several letters to the Missouri Supreme Court in which he called them a variety of vulgar names and dared them to execute him before hearing his appeal. He even threatened to kill his attorneys and prison guards if the Missouri Supreme Court did not allow him to forego the appellate process.
After the Missouri Supreme Court ruled that an appeal was mandatory in all death penalty cases, however, Smith's attitude softened. As long as he was being forced to appeal, he wanted the appeal to be successful. It was not. Smith then authorized his attorneys to file a 27.26 motion on his behalf. Approximately one year later, he changed his mind again and dismissed the 27.26 proceeding. Since then, he has flip-flopped once more: on March 5, 1985, Smith stated that he wished to pursue his federal post-conviction remedies, but some three months later, he changed his mind again.
All of the experts who examined Smith noted that this pattern of impulsive and erratic behavior is one of the earmarks of his personality. Another primary characteristic of Smith's personality is low self-esteem which has manifested itself in self-mutilating behavior and four suicide attempts.[16] A third dominant personality trait of Smith is that he likes to present a macho image, one that is invulnerable to fear, compassion, or remorse.[17]
Petitioner's theory is that these three personality traits prevent Smith from making a rational decision concerning his appeals. Petitioner characterizes Smith's decision as an impulsive one, a self-destructive one, and one that he cannot back down from without showing fear. In contrast, respondent's position is that, notwithstanding Smith's mental and emotional difficulties, his decision is based on a rational assessment of his circumstances. At the competency hearing, Smith stated that he preferred the death penalty over life imprisonment. He acknowledged that the United States Supreme Court is presently considering a case[18] which, if affirmed, *511 might entitle him to a new trial; but he also noted that, even with a new trial, there is no realistic chance of avoiding a guilty verdict. Consequently, he stated that he might as well accept his death sentence, since his only real options are the gas chamber or life in prison.
IV. The Experts
To a surprising extent, the experts who examined Gerald Smith are in agreement as to the nature and severity of Smith's basic psychological problems. For example, all of the experts agreed that Smith does not suffer from a mental disease[19] or defect.[20] Similarly, all of the experts found that Smith suffers from a borderline personality disorder.[21] That disorder is marked by Smith's impulsivity, his inability to control himself, and his dependence on others for guidance. In Freudian terms, this condition can be described as an inability to control one's "Id." It is similar to childishness, but it is exacerbated by the guilt and frustration that an adult feels over not being able to control oneself.
A second diagnosis cited by most of the experts is that Smith suffers from an antisocial personality disorder. As a result of this disorder, Smith does not feel bound by society's rules. Indeed, he often feels compelled to break the rules and seems to enjoy thumbing his nose at "the system." As Dr. Foster explained, this disorder can trace its roots back to Smith's history of truancy, drug use, and juvenile delinquency.
The third diagnosis mentioned by virtually every expert is that Smith has a history of depression. This condition is closely related to Smith's low level of self-esteem and has been overtly manifested in his self-mutilating behavior and suicide attempts. The experts were not able to agree, however, on the degree and permanence of Smith's depression. For example, petitioner's experts characterized Smith's depression as a chronic condition of moderate severity, while Drs. Foster and Pettipiece felt that Smith seemed to be moderately depressed during the December, 1984 examination, but showed no signs of clinical depression during the most recent examination.[22]
A fourth area of agreement among the experts is their common conclusion that borderline personality disorders, antisocial personality disorders, and depression are all "mental disorders" within the meaning of Rees v. Peyton.[23] Despite this agreement, however, there was a sharp disagreement in the experts' assessments of the relationship between Smith's mental disorders and his decision to forego further appeals: Drs. Daniel, Harry, Perlswig, and Ratner were of the opinion that Smith's decision is a direct result of his mental disorders, while Drs. Ajans, Foster, Parwatikar, and Pettipiece felt that, notwithstanding *512 Smith's problems, his decision is based on rationality.
Drs. Daniel and Harry both examined Smith in May and June of 1983. Dr. Daniel reported that Smith was an impulsive, impatient, and immature individual who often says and does things for no apparent reason and then stubbornly stands by them. For example, Smith said of his decision to forego further litigation, "I don't think [my decision] is the right one; I know it ain't the right one. I just gone so far already. I would rather let them kill me than say I was scared." Dr. Daniel noted that Smith had started down a self-destructive path by writing the Globe-Democrat letter in which he described himself as a "cold blooded killer," and concluded that Smith's latest decision was merely the final step down that path. Similarly, Dr. Harry found that Smith's decision to abandon his appeals was based not on rationality but on "his need to self-destruct, stubbornness, and failure to plan ahead."
Significantly, the reports of Drs. Daniel and Harry were compiled shortly after Smith's drug overdose suicide attempt. Neither of these experts examined Smith after June of 1983. The Court has considered these reports as important background information. They were not given great weight, however, because they may well have been colored by Smith's suicide attempt and are quite remote in time from Smith's present mental status.
Dr. Ratner, a Washington, D.C. psychiatrist, testified by way of a videotape deposition. He examined Smith in person for two hours on February 15, 1986. His initial clinical impressions were that Smith is immature, impulsive, and distant. His current diagnosis is that Smith suffers from chronic depression and a borderline personality disorder. Dr. Ratner testified that Smith has a general feeling of worthlessness, a feeling which is exacerbated by the miserable living conditions on death row.[24] Smith is not the type of person who ruminates over his depression, however. Instead, Dr. Ratner noted, Smith tends to "act out" that is, he tends to respond instinctively and impulsively to his depression by engaging in overt actions such as his self-mutilating behavior and suicide attempts.
Dr. Ratner also felt that Smith tends to engage in extreme, dramatic behavior in an effort to draw attention to himself. In Dr. Ratner's opinion, Smith is so psychologically weak and so dependent on others for support that he would rather gain their attention by doing something bad than risk being ignored. At the same time, Dr. Ratner stated, Smith is so afraid of his dependency on others that he projects an exaggerated macho persona in order to avoid dealing with his fear. Dr. Ratner explained that there was a strong parallel between Smith's self-mutilating behavior and his decision to abandon his appeals: in each instance, the action is motivated by a very low sense of self-worth yet is legitimized by Smith's feeling that he has thereby shown the world that he "can take it like a man." This decision-making process, Dr. Ratner concluded, is not a rational one.
Dr. Perlswig, a psychiatrist from New Haven, Connecticut, similarly concluded that Smith's decision was not based on *513 rationality. Dr. Perlswig noted that Smith, who has never really been in control of his own life, seems to enjoy controlling the situation for a change. Dr. Perlswig also felt that Smith's decision is based, at least in part, on an "I dare you to kill me" mentality.[25] Like Dr. Ratner, Dr. Perlswig believed that Smith was a weak and dependent individual who covered up for his inadequacies by projecting an exaggerated macho personality. Smith's decision, Dr. Perlswig concluded, was not based on rationality but instead was based on his perception of appealing as a form of "begging for mercy" and on the fear that he would be seen as a weakling if he pursued an appeal.
The State's experts are in essential agreement with the notion that Smith suffers from various mental disorders; however, they disagree with the conclusion that Smith's decision is a product of those disorders. Dr. Ajans first examined Smith in October, 1984, and found that Smith suffered from an anxiety and depression disorder, a borderline personality disorder, and an antisocial personality disorder. Dr. Ajans re-examined Smith in February, 1986, and found that Smith's mental condition had improved dramatically. Dr. Ajans felt that Smith was no longer depressed and that, despite his antisocial and borderline personality disorders, Smith's decision to abandon his appeals was based on a rational appreciation of his situation. Dr. Ajans observed that, in Smith's mind, life in prison is not worth living. In making this observation, Dr. Ajans acknowledged that the conditions on death row probably had some effect on Smith; still, the expert testified, it is the fact of confinement, not the conditions of confinement, that is motivating Smith. Since Smith's only realistic hope is to receive a life sentence instead of the death penalty,[26] Dr. Ajans concluded, his decision to get the matter over with is a rational one.
Dr. Parwatikar, who has examined Smith on four separate occasions, also concluded that his decision was a rational one. Dr. Parwatikar acknowledged that Smith had a history of acting impulsively and dramatically in order to get attention. Dr. Parwatikar also noted that Smith had considerable mental and emotional problems, including chronic mild depression, a borderline personality disorder, and a tendency to act out in a self-destructive manner. Nevertheless, he found that Smith's decision was based on the realization that he had no chance of avoiding a minimum sentence of life imprisonment[27] and that the death penalty was preferable to spending a minimum of fifty years in jail. Dr. Parwatikar emphasized that, while others may disagree with Smith's decision, it is based on a rational thought process of recognizing his options and making a choice based on available information.
Drs. Foster and Pettipiece the two independent experts from the Federal Medical Center in Springfield, Missouri[28] also *514 found that Smith was competent to forego his post-conviction remedies. Dr. Foster testified that Smith was cognitively aware of his legal situation. As evidenced by his above-average scores on the Wexler Adult Intelligence Test and the Sentence Completion Test, Smith clearly has the ability to take in and assimilate information. Moreover, with respect to the specific issue at hand, Dr. Foster found that Smith has a good understanding of the appellate process and of his future prospects in that process. For example, Smith understands that the most he can hope for from this Court is a new trial. Smith also is aware that the result of any new trial is not likely to be different from the result of his first trial.[29] Dr. Foster emphasized that Smith likes being free and hates being confined. Consequently, he concluded, Smith's decision to accept the death penalty is a rational response to his situation.[30]
Dr. Foster acknowledged that he could not be absolutely certain if the reasoning Smith has articulated accurately reflects his actual thought process. For example, Dr. Foster noted that Smith has a long history of impulsive, erratic, and self-destructive behavior. In Dr. Foster's opinion, however, Smith's decision to abandon his appeals was qualitatively different. Dr. Foster observed that Smith had to be very certain of and committed to his decision in order to endure the humiliation and public spectacle of a competency hearing in which every detail of his life would be analyzed by a group of strangers. Consequently, deferring to Smith's essential dignity as a human being, Dr. Foster concluded that he was competent to abandon his appeals.
V. Findings of Fact
1. Gerald Smith does not suffer from any mental disease or defect.
2. Gerald Smith does suffer from three mental disorders: an antisocial personality disorder, a borderline personality disorder, and chronic mild-to-moderate depression.
3. Notwithstanding his mental disorders, Gerald Smith is competent to forego further review of his capital murder conviction and death sentence. As noted above, the crucial question is whether Smith's decision is based on a rational thought process on the one hand or whether it is a product of his mental disorders on the other hand. Necessarily, this issue cannot be resolved with absolute certainty: no one can be sure of what goes on in the human mind. Nevertheless, after hearing all of the evidence and reviewing all of the documents submitted by the parties, the Court has the firm belief that Smith's decision is based on rationality.
The Court acknowledges that Smith has made a number of rash, irrational, and self-destructive decisions in the past most notably, his decision to send the Globe-Democrat letter. The Court also observes that there is a great temptation to draw a strict analogy between Smith's past irrational acts and Smith's present decision to abandon his appeals. In the Court's view, however, such an analogy is not warranted by the record. There was no rational basis whatsoever underlying Smith's decision to send the Globe-Democrat letter; Smith himself admitted that he sent the letter to make sure that he would receive the maximum penalty. In sharp contrast, Smith has shown that he has a good understanding *515 of his present legal position.[31] Smith also has indicated that he has considered the matter and would rather accept the death penalty than continue struggling for a life sentence. Although the Court does not necessarily agree with Smith's choice, it cannot say that his choice is irrational.
In short, Smith has dug himself into a hole so deep that it is now rational for him to give up the fight. The critical distinction is that, while a false sense of hopelessness is a sign of a mentally disturbed individual, Smith's present sense of hopelessness is a reasonable assessment of his situation. It is true that Smith has acted self-destructively in the past; nevertheless, the Court is convinced that Smith's present decision is based on a rational evaluation of his own best interests. In essence, Smith feels that it is better to accept the sentence imposed on him rather than engage in a stressful and futile struggle against the inevitable. While most death row inmates choose to fight their sentences to the bitter end, the Court will not rule that Smith is incompetent merely because he sees things differently.
4. Gerald Smith's decision to forego his post-conviction remedies is a voluntary one. Although there was considerable evidence showing that life on death row is dismal, the Court finds that the conditions of Smith's confinement do not render his decision involuntary for two reasons.[32] First, he has stood by his decision even though he has been incarcerated in the Special Management Unit (SMU) of the Missouri State Penitentiary since November, 1985. As noted by Dr. Foster, the conditions in SMU are much better than the conditions on death row. The fact that Smith has not renounced his decision since his transfer to SMU indicates that his decision is not significantly affected by the conditions on death row.
Second, the Court is inclined to agree with Drs. Foster and Ajans that it is the fact of confinement, not the conditions of confinement, which Smith finds most oppressive. Dr. Foster noted that Smith's philosophy is similar to the New Hampshire motto, "Live Free or Die." While many inmates seem to thrive in an institutional environment, Smith is the type of individual who finds it intolerable to be physically confined under any circumstances.[33] Thus, while the deplorable conditions on death row undoubtedly have had some effect on Smith, they do not render his decision to abandon his appeals involuntary.
VI. Conclusions of Law
1. The Court has jurisdiction to determine whether it has jurisdiction over this cause. United States v. United Mine Workers of America, 330 U.S. 258, 67 S. Ct. 677, 695, 91 L. Ed. 884 (1947).
2. In analyzing the competency issue, the Court has assigned the burden of persuasion to the State.[34]
*516 3. Because the Court finds that Gerald Smith is competent to abandon his appeals, Eugene Smith lacks standing to bring a third-party habeas corpus proceeding. Accordingly, this case must be dismissed. See Gilmore v. Utah, 429 U.S. 1012, 97 S. Ct. 436, 439, 50 L. Ed. 2d 632 (1976) (Burger, C.J., concurring).
VII. Conclusion
In summary, the Court holds that Gerald Smith is competent to waive further review of his capital murder conviction and death sentence. As a personal matter, I regret that the path will be cleared for the State to execute Smith as a result of this ruling. Nevertheless, the constitutionality of the death penalty has already been decided and is not a matter for this Court to second-guess. The only issue before this Court is whether Smith's decision to abandon his appeals is a rational one.
The Court has struggled with this case for many hours indeed, for many weeks. The most regrettable aspect of this case is that, as a result of his parents' irresponsibility, Smith was never given a chance to develop into a mature, decent human being. I have often wondered what possesses people to bring children into this world only to abandon them, either physically or emotionally. I also wonder what will make them stop. In the meantime, the cycle of life goes on.
In accordance with the foregoing, it is hereby
ORDERED that the petition for a writ of habeas corpus filed by Eugene Smith on behalf of Gerald Smith is dismissed for lack of standing. Each party shall bear its own costs.
It is further
ORDERED that the stay of execution issued by this Court on January 9, 1986, shall continue with full force and effect until April 21, 1986, in order to permit petitioner to file an appeal.
NOTES
[1] According to certified transcripts and docket sheets from the Circuit Court for the City of St. Louis, the only psychiatric evaluation introduced into the record was a report by Dr. S.D. Parwatikar dated July 23, 1984. That report found Gerald Smith to be competent. Significantly, two psychiatric reports finding Smith to be incompetent one by Dr. Bruce Harry dated June 10, 1983, the other by Dr. Anasserial E. Daniel dated June 13, 1983 were not put before Circuit Judge Jean C. Hamilton, even though they were commissioned by and in the possession of the Missouri Department of Corrections.
[2] According to certified transcripts and docket sheets from the Missouri Supreme Court, there again was no formal adversarial hearing concerning the issue of Gerald Smith's competency. Mr. Morris of the Missouri Attorney General's office informed the Court that the circuit court had dismissed Smith's 27.26 motion after finding Smith competent on the basis of Dr. Parwatikar's 1984 report. Again, there was no mention of the 1983 reports by Drs. Harry and Daniel. Smith was then asked by Chief Justice Rendlen if there was any reason why the Supreme Court should not set an execution date. Smith stated that he had nothing to say. With that, the special session of the Missouri Supreme Court was adjourned.
[3] By that time, the 1983 reports of Drs. Harry and Daniel had come to light. Indeed, in a telephone conference conducted on November 6, 1984, Mr. Morris of the Missouri Attorney General's office conceded that it was appropriate to order a comprehensive psychiatric evaluation of Smith in view of the conflicting reports already in the record.
[4] The staff of the Federal Medical Center was directed to evaluate Smith under the standard articulated in Rees v. Peyton, 384 U.S. 312, 86 S. Ct. 1505, 16 L. Ed. 2d 583 (1966). The staff also was directed to administer eight specific tests: (1) Minnesota Multiphasic Personality Inventory; (2) Wexler Adult Intelligence Test; (3) Thematic Apperception Test; (4) Rorschach Test; (5) Sentence Completion Test; (6) EEG with photic stimulation and hyperventilation; (7) CAT scan; and (8) full neurological examination for organic brain disorder.
[5] 455 U.S. 509, 522, 102 S. Ct. 1198, 1205, 71 L. Ed. 2d 379 (1982) (federal court must dismiss a habeas corpus petition which contains one or more claims that had not been previously presented to the state courts).
[6] Mo.R.Crim.P. 27.26(a) provides that the procedures for a 27.26 motion are "governed by the Rules of Civil Procedure insofar as applicable." Mo.R.Civ.P. 52.02, in turn, provides that a next friend may be appointed to prosecute a civil action on behalf of an incompetent person. Thus, as a matter of Missouri law, there is no apparent procedural obstacle to a next-friend 27.26 petition.
[7] Significantly, during a telephone conference conducted that date with attorneys for the parties, the State did not suggest that this Court was bound by the Missouri Supreme Court's ruling that the issue of Gerald Smith's competency had been settled once and for all back in 1984. Nor would this Court have accepted such an argument. Under ordinary circumstances, a state court finding that Gerald Smith is competent would have been given full faith and credit by this Court. See 28 U.S.C. § 1738. Indeed, this Court would have been inclined to give an up-to-date competency determination by Judge Hamilton preclusive effect herein. See Restatement, Second, Judgments § 27 (stating the general rule of issue preclusion). However, there are four fundamental reasons why the October, 1984 state court competency finding cannot be given preclusive effect in this case. First, the 1984 state court determination is not sufficiently recent to be binding at the present time. The central issue is whether Gerald Smith is competent to forego his post-conviction remedies, not whether he was competent to do so at some point in the past. At the very least, the state courts should have inquired into whether any circumstances since October, 1984 have affected Smith's current mental condition.
Second, the Missouri Attorney General's office the authorized representative for the State in this litigation has not advanced an issue preclusion argument before this Court. Accordingly, any such argument has been waived by the State.
Third, the instant case falls within the exception to the general rule of issue preclusion set forth in the Restatement, Second, Judgments § 28(3) (new determination of an issue may be warranted by differences in the quality or extensiveness of the procedures followed in the two courts). As noted above, the state courts did not conduct formal adversarial hearings before concluding that Gerald Smith was competent to abandon further appeals, while this Court conducted a three-day adversarial hearing on the issue of Smith's competency. Similarly, there was no opportunity for discovery nor for the presentation of expert testimony in the state court proceedings, while this Court has allowed experts selected by the parties, as well as independent experts at the Federal Medical Center, to develop an extensive evidentiary foundation for evaluating Smith's competency. In view of the sharp contrast between the procedures used by this Court and those used by the state courts, this Court holds that the general rule of issue preclusion does not apply.
Fourth, and most important, the instant case also falls within a separate and distinct exception to the general rule of issue preclusion: relitigation of an issue is permissible where there is a transparent need for a new determination of the issue "because the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action." Restatement, Second, Judgments § 28(5)(c). It bears emphasis that the October, 1984 competency finding by Judge Hamilton was based on a record which contained only one psychiatric evaluation, even though two other reports which had found Smith to be incompetent were then in the possession of the Missouri Department of Corrections. This Court cannot say that the State intentionally withheld these two reports from Judge Hamilton. In any event, however, the omission of the two reports from the state court record constitutes "other special circumstances" which cast doubt upon the "fullness and fairness" of the state court competency determination. In addition, the Court notes that it has recently come to light that, while Gerald Smith's case was pending before the Missouri Supreme Court in January, 1986, one of the judges on that court initiated ex parte communications with one of the psychiatrists who had examined Smith. Such ex parte contact not only violates that court's own canons of ethics, see Mo.S.Ct.R. 2, Canon 3(A)(4) (prohibiting judges from initiating ex parte communications concerning pending proceedings), it also strikes at the very heart of the adversarial system. Nothing can undermine the fairness of a judicial proceeding more than when a judge turns his back on the adversary system where each side has an equal opportunity to test its opponent's evidence by means of cross-examination and conducts his own ex parte investigation of the facts. See Reserve Mining Co. v. Lord, 529 F.2d 181, 184-88 (8th Cir.1975). Under these extraordinary circumstances, it clearly appears that the state court's conclusion concerning Smith's competency was not the product of a full and fair hearing; accordingly, this Court is not bound by the state court's resolution of the competency issue.
[8] Two expert witnesses testified on behalf of Eugene Smith: Dr. Ellis A. Perlswig and Dr. Richard A. Ratner. Two experts testified on behalf of the State: Dr. S.D. Parwatikar and Dr. Z.A. Ajans. The last two testifying experts Dr. Clayton A. Pettipiece and Dr. Daniel V. Foster are on the staff of the Federal Medical Center and became involved in the case as a result of the Court's order transferring Smith to that facility.
[9] The adversary system is based upon the idea that, in an open forum where each party is allowed to present its own information and test the other's information, the "truth" will rise to the surface. The "truth" in this case, as in many cases, cannot be known with absolute certainty. In such a case, it is imperative that the factfinder refrain from adopting a partisan position and investigating the facts for itself. Those roles are for the advocates, not the Court. And, it is even more important that the factfinder base its decision on a complete record. For only after all of the evidence has been heard can a Court say with confidence that justice was done.
[10] See, e.g., Groseclose ex rel. Harries v. Dutton, 594 F. Supp. 949 (M.D.Tenn.1984); Rumbaugh v. Estelle, 558 F. Supp. 651 (N.D.Tex.1983).
[11] See, e.g., Rumbaugh v. Procunier, 753 F.2d 395, 398-99 (5th Cir.1985); Hays v. Murphy, 663 F.2d 1004, 1009 (10th Cir.1981).
[12] The standard for competency to stand trial is whether the defendant is "presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." 18 U.S.C. § 4241. That standard does not focus on the ability of the defendant to engage in a rational decision-making process; instead, it centers on the defendant's ability to appreciate his predicament. In contrast, the Rees standard deals with the death row inmate's decision-making process. In short, the "competency to stand trial" standard is a test of passive rationality, while the "competency to forego appeals" standard is a test of active rationality. Here, there is no dispute but that Gerald Smith is factually aware of his circumstances. He is at least factually aware that he is advancing his execution date by abandoning further appeals. Despite that factual awareness, however, Smith still may be "incompetent" to forego his post-conviction remedies if his decision is not a rational one.
[13] The term "mental illness" generally denotes a severe psychological disturbance characterized by hallucinations or other symptoms manifesting a substantial disassociation from reality. Under Rees, however, it is sufficient that the death row inmate "is suffering from a mental disease, disorder, or defect." 384 U.S. at 314, 86 S.Ct. at 1506. As all of the experts in this case agreed, a "mental disorder" is not nearly as severe as a "mental disease" or "mental illness."
[14] See Rumbaugh v. Procunier, 753 F.2d 395, 398 (5th Cir.1985); id. at 404 (Goldberg, J., dissenting).
[15] In 1983, Smith had told Dr. Harry that he wrote the Globe-Democrat letter "because I wanted to die. I made all those things up because I wanted to give them a reason to send me to the gas chamber."
[16] On February 23, 1981, a guard at the St. Louis City jail reported multiple self-inflicted lacerations on Smith's right wrist. On July 14, 1982, a guard at the Missouri State Penitentiary found a blood-soaked t-shirt and traced the garment to Smith. The guard went to Smith's cell and discovered that he had used pieces of a mirror to cut his right wrist and forearm numerous times. In addition, Dr. Harry reported that Smith confessed to burning his chest with cigarettes as a form of self-torture. Smith testified that he did those things when he felt down.
Although Smith was more reluctant to acknowledge his suicide attempts, Dr. Daniel reported that Smith had tried to kill himself at least three times before his arrest. On May 26, 1983, Smith tried a fourth time, this time by taking between 20 and 60 pills of Elavil. Although Smith now claims that he took the overdose "to get high," it is the Court's belief that this was a suicide attempt.
[17] For example, Dr. Daniel reported that Smith said of his decision to abandon further appeals, "I would rather let them kill me than say I was scared."
[18] See Grigsby v. Mabry, 758 F.2d 226 (8th Cir. 1985), cert. granted sub nom. Lockhart v. McCree, ___ U.S. ___ 106 S. Ct. 59, 88 L. Ed. 2d 48 (1985).
[19] The term "mental disease" was defined by the experts as a mental condition which causes a person to lose contact with reality and be unable to cope with day-to-day living. Mental diseases generally require hospitalization. Psychosis and schizophrenia are mental diseases. A severe form of depression, accompanied by hallucinations or delusions, also may be classified as a mental disease. Characterization as a mental disease is largely a matter of degree. None of the experts in the instant case felt that Smith's condition was severe enough to be categorized as a mental disease. Although he has been known to explode in fits of rage which might be classified as psychotic episodes, he is generally oriented to his surroundings and able to deal with his day-to-day existence.
[20] The term "mental defect" refers to conditions, such as mental retardation, which are directly linked to physical abnormalities in the brain.
[21] The term "borderline personality" derives from the fact that the subject is always very close to the edge of being out of control. One minute, the subject may appear to be a mature adult, while the next minute and at the slightest provocation, he may fly into a terrible rage.
[22] Dr. Foster explained that, during the earlier examination, Smith's appearance was unkempt, his speech was slurred, and he seemed despondent. In contrast, at the more recent examination, Smith was brighter and more alert, his appearance was much neater, and he seemed to have a better sense of humor.
[23] Only Dr. Pettipiece disagreed with this conclusion.
[24] According to the testimony of Dr. Foster and two inmates, A.J. Bannister and Emmet Nave, the conditions on death row are deplorable. Each inmate spends over twenty-three hours a day in an 8' × 9' cell. The inmates are allowed, at most, a 45-minute outdoor exercise period three times per week and a 45-minute exercise period on a weight machine on an alternating basis. They are allowed three showers per week. The poor drainage in the shower area causes a back-up of stagnant water. There is a constant stench on death row because raw human sewage backs up in the plumbing system and floods some of the cells on a daily basis. There is no ventilation and no natural light. Each cell is lit by a single low-wattage bare bulb suspended some thirteen feet from the ground. There is an infestation of rats, roaches, and other pests which prison officials allegedly have refused to control. The food served to death row inmates is usually served cold and often has roach parts and other foreign substances in it. For the purposes of evaluating the effect of death row living conditions on Gerald Smith, the Court has assumed that these conditions are violative of the Cruel and Unusual Punishment Clause of the Eighth Amendment.
[25] This defiant attitude was most clearly evidenced by Smith's letters to the Globe-Democrat and the Missouri Supreme Court. Dr. Perlswig hypothesized that this attitude developed when, as an abused and neglected child, Smith learned not to trust anyone and to always expect the worst.
[26] The minimum sentence for a capital murder conviction is life imprisonment with no possibility of parole for fifty years. Mo.Rev.Stat. § 565.008.
[27] Dr. Parwatikar explained that the inevitability of a lifetime in jail was based on two factors. First, the Globe-Democrat letter all but insures a capital murder conviction in any new trial concerning the Karen Roberts killing. Second, Smith has been implicated in the November, 1985 stabbing death of another death row inmate, Robert Allen. Thus, even if Smith could somehow avoid a capital murder conviction vis-a-vis the Karen Roberts killing, he still would face yet another capital murder prosecution in connection with the Robert Allen killing.
[28] The fact that these two experts became involved in this case at the request of the Court and not at the request of the parties greatly enhanced their credibility. Unfortunately, Dr. Pettipiece did not seem to have given this case much consideration and his testimony often was difficult to follow. Dr. Foster, on the other hand, was the most conscientious and helpful of all the experts. Dr. Foster testified that he had spent some 80 hours on this case, far more than any of the other experts. He also indicated that he did not enter the case with any preconceived notions and that he wrestled with the competency question for many hours. The Court is very appreciative of the effort put forth by Dr. Foster.
[29] Dr. Foster testified that Smith was keenly aware of the "bridges he has already burned." By this, Dr. Foster was referring to the Globe-Democrat letter and other inculpatory admissions by Smith which effectively render him defenseless against the death penalty.
[30] Dr. Foster explained that Smith's situation is analogous to the position of a terminally ill individual who must decide whether to undergo chemotherapy. Like the terminally ill person, Smith has an option available which might prolong his life. However, the treatment might be worse than the disease: just as chemotherapy can be excruciatingly painful, the uncertainty and delay of the appeals process can create tremendous stress in the mind of a death row inmate.
[31] It is beyond dispute that, at best, Smith can hope to obtain a life sentence instead of the death penalty.
[32] The State maintains that the Court should not address the voluntariness issue in the first place because a claim of involuntariness cannot be raised in a third-party habeas corpus petition. The Court does not agree. Smith's decision to forego his post-conviction remedies is, in effect, a waiver of his constitutional right to pursue a writ of habeas corpus. Before such a waiver can be accepted, the Court must make certain that it was given knowingly, voluntarily, and intelligently. Thus, if Gerald Smith's decision to abandon his appeals was coerced out of him as a result of unconstitutional conditions on death row, that fact would render his decision legally ineffective. The Court would never be able to make such a determination, however, if the State was correct in asserting that the voluntariness issue cannot be raised by a third-party. Therefore, the Court holds that it has jurisdiction to determine whether Smith's decision is a voluntary one, for only if his decision is free from coercion can it truly be his decision.
[33] This anti-institutionalization attitude goes back to Smith's early years when he frequently skipped school and ran away from home.
[34] The other courts which have considered this issue have held that the petitioner bears the risk of non-persuasion on the competency issue. See Groseclose ex rel. Harries v. Dutton, 594 F. Supp. 949, 953 (M.D.Tenn.1984). Nevertheless, this Court firmly believes that the burden of persuasion on the competency question must be allocated to the State, at least in a death penalty case. The primary function of allocating the burden of persuasion is to put the risk of error on one party on the other. In an ordinary civil case, the burden of persuasion is on the plaintiff because the plaintiff is the party seeking to alter the status quo. In a criminal case, the burden is on the government to prove the defendant guilty "beyond a reasonable doubt" because of the idea that it is better to acquit a hundred guilty men than to convict one innocent man. In the instant case, the Court similarly believes that it is better to err on the side of caution. Considering the irreversible nature of the death penalty, the Court has endeavored to resolve all doubts in favor of finding Smith incompetent. See generally Rumbaugh v. Procunier, 753 F.2d 395, 414-15 (5th Cir.1985) (Goldberg, J., dissenting). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260984/ | 632 F. Supp. 455 (1986)
Katherine PHELPS, et al., Plaintiffs,
v.
WASHBURN UNIVERSITY OF TOPEKA, et al., Defendants.
Civ. A. No. 84-4225-S.
United States District Court, D. Kansas.
April 1, 1986.
*456 *457 Fred W. Phelps, Sr., Phelps Chtd., Fred W. Phelps, Jr., Topeka, Kan., for plaintiffs.
Richard H. Seaton, Everett, Seaton & Knopp, Manhattan, Kan., Arthur E. Palmer, Marla J. Luckert, Goodell, Stratton, Edmonds & Palmer, Topeka, Kan., for defendants.
MEMORANDUM AND ORDER
SAFFELS, District Judge.
This matter is before the court on defendants' motion to dismiss. Defendants base their motion on two grounds. First, plaintiffs' complaint restates allegations previously made in two other suits before this court. Second, plaintiffs have failed to state a claim upon which relief can be granted.
This action involves allegations by plaintiffs that they have been discriminated against in denial of their application for law school admission on the grounds of reverse discrimination, plaintiffs' association with minorities, and in retaliation of a civil rights suit filed by plaintiffs against defendants. In the present suit, plaintiffs also allege that defendants wrongfully denied plaintiffs their right to a grievance process.
The court will first address defendants' contention that plaintiffs' claims should be barred by the doctrine of res judicata. The doctrine of res judicata includes both "claim preclusion" and "issue preclusion." Res judicata seeks to bar subsequent actions between parties on matters, the merits of which the parties have previously litigated. Guarantee Acceptance Corp. v. Fidelity Mortgage Investors, 544 F.2d 449 (10th Cir.1976); Thompson-Hayward Chemical Co. v. Cyprus Mines Corp., 8 Kan. App. 487, 660 P.2d 973, 975 (1983). This long-established doctrine is based on a policy of preventing endless or repetitive litigation by effectively coercing the plaintiff to present all of his grounds for recovery in the first proceeding. Spence v. Latting, 512 F.2d 93 (10th Cir. 1975). Res judicata bars relitigation of claims for relief by the parties which have once been litigated and resulted in a final judgment, as well as claims that should have been litigated in the first action but were not. Vance v. State of Utah, 744 F.2d 750, 752 (10th Cir.1984). The principle of res judicata bars relitigation of the same claim even where a new theory is advanced as a basis of relief in the second suit. United States v. Stuart, 689 F.2d 759, 762 (8th Cir.1982). See e.g. Brown v. Felsen, 442 U.S. 127, 131-32, 99 S. Ct. 2205, 2209-10, 60 L. Ed. 2d 767 (1978).
The court notes that in a prior action brought by the parties, Phelps v. Washburn University, No. 83-4198 (filed July 1, 1983) [hereinafter Phelps I], plaintiffs stated a cause of action for denial of admission to Washburn University School of Law in violation of 42 U.S.C. § 1981, § 1983, § 1985, and § 2000e and the first and fourteenth amendments. Specifically, plaintiffs claimed they were discriminated against in retaliation of plaintiffs' association with minorities. In paragraph 9(h) of the plaintiffs' previous complaint filed in Phelps I, plaintiffs stated that defendants utilized grievance procedures in bad faith. On June 5, 1984, a second complaint, Phelps v. Washburn, No. 84-4199 [hereinafter Phelps II], was filed against the same defendants alleging a cause of action pursuant to 42 U.S.C. § 1981, § 1983, § 1985(2), and the first and fourteenth *458 amendments. The basis for such claims was defendants' alleged denial of plaintiffs' admissions to law school on the basis of reverse discrimination, association with minorities, and retaliation for plaintiffs filing a lawsuit. No allegation as to the denial of a grievance procedure was contained in the complaint in Phelps II. A final judgment was entered by the Honorable Judge Theis in Phelps I on February 10, 1986, 632 F. Supp. 455, granting defendants' motion for summary judgment.
After comparing the complaint in Phelps I with the action filed in the present suit [Phelps III], the court finds that res judicata should bar plaintiffs from relitigating some of their claims. The defendants correctly state that with the exception of the allegation of the defendants' denial of a grievance process and an allegation of reverse discrimination in Phelps III, the complaints state virtually the same claim for relief. But plaintiffs state that the heart of this action (Phelps III), is the denial of the grievance process due to plaintiffs filing a lawsuit. Further, plaintiffs claim that their claims relating to discrimination in the admissions process should remain as a means of showing background for the denial of the grievance procedure. The court finds this argument to be meritless. The court finds that the doctrine of res judicata effectively bars all claims alleged by the plaintiffs relating to discrimination in the denial of plaintiffs' admissions to law school.
As to plaintiffs' claims of discrimination with regard to defendants' denial of the grievance procedure, the court, in an abundance of caution, finds that res judicata does not bar such a claim. When viewing plaintiffs' complaint in the most favorable light, the court cannot state with certainty that this cause of action accrued prior to Phelps I and could have been litigated at that time. The court is uncertain whether plaintiffs are claiming a denial of the grievance procedure based on plaintiffs' filing of the Phelps I case. Therefore, the court finds that plaintiffs' claim relating to the denial of a grievance process should not be barred by the doctrine of res judicata.
The court will next address defendants' contention that plaintiffs' claim for denial of a grievance procedure does not state a claim for relief. As a side note, the court would like to cite the discrepancy between plaintiffs' allegation in this action with the finding by the Honorable Judge Theis in his Memorandum and Order dated February 10, 1986. In his Memorandum and Order in Phelps I, Judge Theis made extensive factual findings as to the full and adequate opportunity that the plaintiffs had to take complete advantage of and participate in the grievance procedure offered by the defendants after their denial of admission into law school. See Phelps v. Washburn, 632 F. Supp. 455 (D.Kan.1986). The court finds Judge Theis' findings to be incongruous with the plaintiffs' allegations that they were denied access to the grievance process. Regardless, the court must not consider the merits of plaintiffs' claims at this time.
Plaintiffs claim that a denial of the grievance process violates the due process clause of the fourteenth amendment. To state a claim under the due process clause, the plaintiffs must allege a deprivation of life, liberty, or property. The courts are in agreement that an expectation of receiving process, is not, without more, a liberty or property interest protected by the due process clause of the fourteenth amendment. See Olim v. Wakinekona, 461 U.S. 238, 250 n. 12, 103 S. Ct. 1741, 1748 n. 12, 75 L. Ed. 2d 813 (1983). Therefore, plaintiffs must have a property or liberty interest to state a cause of action under the due process clause. As Judge Theis states in Phelps I, "[t]he admission to a professional school is a privilege and not, standing alone, a constitutional or property right, subject to the exception that the rules and regulations for admission are not discriminatory, arbitrary or unreasonable. Flemming v. Adams, 377 F.2d 975, 977 (10th Cir.), cert. denied, 389 U.S. 898 [88 S. Ct. 219, 19 L. Ed. 2d 216] (1967)." Id. at 41-42.
*459 The court finds that upon a review of the case law, denial of admission, and a resulting denial of a grievance process, without an underlying charge of dishonesty or publication of reasons for such denial, does not rise to a liberty interest. See Selman v. Harvard Medical School, 494 F. Supp. 603, 619 (S.D.N.Y.1980). Further, it is well settled that a person does not have a property interest in admission to law school. Id. at 619. The plaintiffs state, however, that they have property rights in participating in the grievance process because the existing rules and regulations of Washburn grant them a legitimate claim of entitlement to the grievance process. The plaintiffs cite case law to support their proposition that the existence of rules and regulations calling for a hearing may rise to a level stating a cause of action for a deprivation of plaintiffs' property interest. See Plaintiffs' Response to Defendants' Motion to Dismiss, slip op. at 6-7.
The court finds that the facts in the cases cited to be inapposite with the facts in the case at hand. A majority of the cases cited by plaintiffs dealt with a teacher's right to continued employment and that teacher's right to a pre-termination hearing. The court finds it cannot extend the holdings or dicta in those cases to a situation such as this involving a student's expectation of admittance to law school. The court finds that it would be stretching case law too thin to elevate a university's rules governing grievance procedures for denial of admission to the point where they create a property interest protected under the fourteenth amendment. Thus, the court finds that plaintiffs' complaint does not state a cause of action under the due process clause of the fourteenth amendment.
Plaintiffs allege a violation of 42 U.S.C. § 1981. Judge Theis in Phelps I held that the plaintiffs' claim of protected status under section 1981 due to plaintiffs' association with a protected class did not state a cause of action under section 1981. See Phelps v. Washburn, 634 F. Supp. 556, 570-71 (D.Kan.1986). Therefore, plaintiffs' section 1981 claim must be based on their race. The plaintiffs' complaint may be read to state that plaintiffs were denied the grievance process because of their race, and such conduct of defendants constituted invidious discrimination.
Section 1981 reads in part: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property...." Defendants claim that plaintiffs have made no allegations that they were denied the grievance process because of their race. In reading the plaintiffs' complaint in a light most favorable to plaintiffs, the court finds that plaintiffs' complaint can be read to state a claim for a denial of the grievance process due to plaintiffs' race. In making such a determination, the court notes that it makes no findings as to the merits of plaintiffs' claim. To state a cause of action for a section 1981, the plaintiff must allege some facts that demonstrate that his race was the reason for the defendant's inaction. See Jafree v. Barber, 689 F.2d 640, 643 (7th Cir.1982). The court finds that plaintiffs have sufficiently stated a cause of action pursuant to section 1981. Therefore, the plaintiffs' claim pursuant to section 1981 should not be dismissed for failure to state a claim.
In paragraph 7 of plaintiffs' complaint, plaintiffs allege that defendants have no right to short-circuit grievance procedures in violation of their own promulgated rules which they have established under color of state law, in compliance of federal guidelines for the securing of federal tax funds under Title VI. Said conduct of defendants constitutes invidious discrimination in violation of the equal protection and due process clauses of the fourteenth amendment. In reading the plaintiffs' complaint, and the case law cited by both defendants and plaintiffs, the court finds that plaintiff has not stated a cause of *460 action pursuant to Title VI. Specifically, the court finds that the decision in Serna v. Portales Municipal Schools, 499 F.2d 1147, 1154 (10th Cir.1974), to be controlling on this issue. In Serna the court stated, "only when a substantial group is being deprived of a meaningful education will a Title VI violation exist." Id. at 1154 (citing Lau v. Nichols, 414 U.S. 563, 94 S. Ct. 786, 39 L. Ed. 2d 1 (1974)). The court notes that plaintiffs have cited no case law to support the viability of their claim under Title VI. The court further finds that the regulations cited by the plaintiffs, 34 C.F.R. § 101.1 and § 101.3, do not conclusively grant them authority for bringing a Title VI action. The court therefore finds that plaintiffs' claim pursuant to Title VI should be dismissed for failure to state a claim.
Plaintiffs also claim a violation of 42 U.S.C. § 1983. A section 1983 action will only be viable where there has been a deprivation of constitutional right. See Selman v. Harvard Medical School, 494 F.Supp. at 618. Paragraph 7 of plaintiffs' complaint cites a violation of the equal protection clause of the fourteenth amendment for defendants' failure to grant grievance process pursuant to their own promulgated rules. Defendants refute plaintiffs' equal protection claim by stating that the rules and regulations providing for a grievance process are in actuality an "election of remedies clause."
Specifically, defendants cite language in the regulations which states, "[n]othing in these procedures shall be construed as preventing a grievant or potential grievant from pursuing any other action." The court is not convinced by this reading that this is an election of remedies clause. The court finds that a reasonable interpretation of such language would be to infer that a grievant can file suit or take other action in addition to requesting a grievance hearing. Therefore, the court finds that plaintiffs' complaint can be read to state a cause of action under the equal protection clause of the fourteenth amendment. In light of this finding, the court finds that plaintiffs' claims under 42 U.S.C. § 1983 should not be dismissed.
Defendants cite the case of Board of Education of Rogers, Ark. v. McCluskey, 458 U.S. 966, 102 S. Ct. 3469, 73 L. Ed. 2d 1273 (1982) for the proposition that this court should not interfere with Washburn's interpretation of its own regulations, specifically the election of remedies clause. The court finds that this case does indeed find that section 1983 did not extend the right to relitigate in federal court questions arising in the proper construction of school regulations. Id. at 969, 102 S. Ct. at 3471. The court notes however that the Supreme Court's decision did find that, "[a] case may be hypothesized in which a school board's interpretation of its rules is so extreme as to be a violation of due process...." Id. at 970, 102 S. Ct. at 3471. Under the standard enunciated by the court in ruling on a motion to dismiss, the court finds that plaintiffs' complaint could conceivably be read to state a cause of action under the equal protection clause. While the decision in McCluskey does limit the court's power to review a school's interpretation of its regulations, the court finds that a school's interpretation may rise to such a degree that a constitutional violation can be claimed.
The decision of Holt v. Wichita State University, No. 82-1172 (D.Kan., unpublished, June 29, 1984), also supports plaintiffs' claim under the equal protection clause. In Holt, the plaintiff complained not of the fact that her tenure application was not reviewed, but of the procedures used for review of her tenure application as a faculty member. The Wichita State University faculty had a handbook which provided that special review procedures would be developed for that department in which Holt was employed. The court found that the plaintiff's only equal protection right in that case was the right to be treated the same as anyone else in her position. The court found that in order for Holt to sustain her equal protection claim, she must show: (1) that she is an applicant at Wichita State University; (2) that her application was reviewed by a different procedure *461 than used to review other tenure applications; (3) whose tenure application was granted; and (4) who is of different race or sex than that of the applicant. The court found that while the facts proffered for purposes of that summary judgment motion did not show that such a person existed for the finding of a section 1983 claim, the court found that plaintiff should be given an opportunity to proffer such facts.
While this case is not identical to the case at hand, the reasoning of the court is clearly applicable. The court finds that while the plaintiffs' complaint does not state that other applicants of other races were granted a grievance procedure pursuant to the rules and regulations, plaintiffs should be given the opportunity to do so. Therefore, the court finds that the plaintiffs' claim pursuant to the equal protection clause of the fourteenth amendment should not be dismissed for failure to state a claim. Similarly, the court finds that plaintiffs' section 1983 claim should not be dismissed because of the court's finding that plaintiffs have stated a cause of action pursuant to the equal protection clause of the fourteenth amendment.
Plaintiffs also allege a claim that defendants' denial of the grievance procedure violated plaintiffs' first amendment rights. Upon a review of the plaintiffs' complaint, and the briefs of the parties, the court finds that plaintiffs have not stated a claim of action for a violation of their first amendment rights. The court cannot read plaintiffs' complaint to infer that defendants' rules and regulations as written providing for a grievance procedure and defendants' denial of that grievance procedure in any way infringed upon plaintiffs' first amendment rights. The court finds defendants' arguments in support of their motion to dismiss plaintiffs' first amendment claim persuasive. Defendants contend that plaintiffs have no right to a hearing simply because they asserted that they were denied admission because of their association with blacks, their father, and civil rights. Such an infringement of first amendment rights, if there is an infringement, does not give rise to a right to a due process hearing. See Memorandum in Support of Defendants' Motion to Dismiss, slip op. at 27. See also Board of Regents v. Roth, 408 U.S. 564, 575 n. 14, 92 S. Ct. 2701, 2708 n. 14, 33 L. Ed. 2d 548 (1972). In Roth the United States Supreme Court stated that, "[w]hatever may be a teacher's rights of free speech, the interest in holding a teaching job at a state university, simpliciter, is not itself a free speech interest." Similarly, while the plaintiffs do have a first amendment right of free speech, the denial of a grievance procedure is not in itself a free speech interest. Therefore, the court finds that plaintiffs' claim pursuant to the first amendment should be dismissed.
Finally, plaintiffs state a claim pursuant to 42 U.S.C. § 1985(2) which provides that the party may have an action for the recovery of damages:
If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, ... or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protections of the laws; ...
The allegations in plaintiffs' complaint can not be read to establish that defendants engaged in any action or conspired to engage in any action which had the purpose of impeding, hindering, obstructing, or defeating plaintiffs' access to the courts. The plaintiff's complaint does allege a violation of equal protection. The court notes, however, that plaintiff has not alleged any facts which tie the actions of the individual defendants and the university as a whole to a conspiracy to violate plaintiffs' individual rights.
*462 The Tenth Circuit has held that mere conclusory allegations of a conspiracy with no supporting factual averments are insufficient to state a claim under section 1985(3). See Barger v. State of Kansas, 620 F. Supp. 1432, 1436 (D.Kan.1985). See e.g. Sooner Products Co. v. McBride, 708 F.2d 510, 512 (10th Cir.1983); Clulow v. State of Oklahoma, 700 F.2d 1291, 1303 (10th Cir.1983).
The court in Barger also noted that government agencies and their employees cannot conspire for purposes of section 1985(3) because they constitute a single entity that cannot conspire with itself. Id. at 1435. The court found, however, that government employees acting in their individual capacities are an exception to the single entity rule. The court found that to the extent that plaintiff had alleged that defendants conspired in their official capacities, plaintiff had not stated a claim under section 1985(3). With respect to plaintiffs' conspiracy claims against the defendants in their individual capacities, the court found that a cause of action could be stated if plaintiff alleges facts to show an agreement or concerted action between the individual defendants. Id. at 1435-1436. In Barger, the court found that plaintiff had alleged no facts tending to show any agreement or concerted action between the individuals in their individual capacities. Based on the Tenth Circuit's warning that "caution is advised in any pretrial disposition or conspiracy allegations and civil rights actions," Clulow v. State of Oklahoma, 700 F.2d at 1303, the court in Barger granted plaintiff leave to amend her complaint to plead specific facts showing an agreement between the individual defendants in their individual capacities.
Reviewing the plaintiffs' complaint in the case at hand, the court finds that plaintiffs have failed to adequately allege whether defendants were acting in their individual capacities or in their capacities as officials of Washburn University. To the extent that plaintiffs' section 1985(2) claim is based on the defendants' actions in their official capacity, plaintiffs' complaint should be dismissed. Rather than totally dismissing plaintiffs' section 1985(2) claim, however, the court finds that plaintiffs should be given an opportunity to amend their complaint to allege facts which establish a concerted activity, if any, between the individual defendants in their individual capacities to violate plaintiff's right of equal protection.
Plaintiffs have filed a motion to list additional witnesses and exhibits. Specifically, plaintiff seeks to add ten additional witnesses and nine additional exhibits. The court finds that since no trial date has been set, the defendants will not be unduly prejudiced by the addition of these witnesses and exhibits. The court therefore finds that plaintiffs' motion to add ten additional witnesses and nine additional exhibits should be granted.
IT IS BY THE COURT THEREFORE ORDERED that defendants' motion to dismiss all of plaintiffs' claims with respect to denial of their admissions into law school is hereby granted. IT IS FURTHER ORDERED that defendants' motion to dismiss plaintiffs' claim pursuant to 42 U.S.C. § 1981 for denial of the grievance process on the basis of race should be denied. IT IS FURTHER ORDERED that defendants' motion to dismiss plaintiffs' § 1981 claim on the basis of their association with minorities is hereby granted. IT IS FURTHER ORDERED that defendants' motion to dismiss plaintiffs' § 1983 claim is hereby denied. IT IS FURTHER ORDERED that defendants' motion to dismiss plaintiffs' claim pursuant to the due process clause of the fourteenth amendment is hereby granted. IT IS FURTHER ORDERED that defendants' motion to dismiss plaintiffs' claim under the equal protection clause of the fourteenth amendment is hereby denied. IT IS FURTHER ORDERED that defendants' motion to dismiss plaintiffs' claims pursuant to 42 U.S.C. § 1985(2) is hereby denied. IT IS FURTHER ORDERED that plaintiffs shall be given ten days from the date this order is filed to amend their complaint to sufficiently state a cause of action under 42 U.S.C. § 1985(2). IT IS FURTHER *463 ORDERED that defendants' motion to dismiss plaintiffs' first amendment claim is hereby granted. IT IS FURTHER ORDERED that defendants' motion to dismiss plaintiffs' Title VI action is hereby granted. IT IS FURTHER ORDERED that defendants' motion to strike (or alternatively) reply to plaintiffs' supplement to plaintiffs' response to defendants' motion for summary judgment is hereby denied. IT IS FURTHER ORDERED that plaintiffs' motion for leave to file ten additional witnesses and nine additional exhibits is hereby granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260991/ | 632 F. Supp. 1426 (1986)
UNITED STATES of America, et al.
v.
DARWIN CONSTRUCTION COMPANY, INC.
Civ. No. Y-86-67.
United States District Court, D. Maryland.
April 16, 1986.
*1427 Breckinridge L. Willcox, U.S. Atty., Larry D. Adams, Asst. U.S. Atty., Baltimore, Md., and Robert L. Gordon, Washington, D.C., for plaintiffs.
Randall J. Turk, R. Stan Mortenson, Washington, D.C., and Price O. Gielen, Baltimore, Md., for defendant.
MEMORANDUM
JOSEPH H. YOUNG, District Judge.
This is a proceeding brought under 26 U.S.C. §§ 7402(a) and (b), and 7604(a), to judically enforce an Internal Revenue summons which was served on the Darwin Construction Company, Inc. ("Darwin") on May 2, 1985. A hearing on the issues was held on March 25, 1986. The summons requested "(a)ll records or documents pertaining to the above corporation" for the period including 1980-1983. The summons also contained a list of 25 specific records which were to be produced as partial compliance with the summons. Most of these itemized records are standard business records, such as the general ledger, cash receipts book, checking and savings account books, and articles of incorporation but the summons was not limited to these items. These records were requested to further an investigation of the liabilities of Lester J. Robinson for the same period, 1980-83, which could lead to either civil or criminal charges by the IRS. Robinson, as president and sole shareholder of Darwin, accepted service of the summons. Reluctant to comply with the summons, Robinson informed Special Agent Kohorst of the IRS on May 31, 1985, that he was invoking his right against self-incrimination and he refused to produce Darwin records. Presumably, because of the closely held nature of Darwin, Robinson is the only person who could provide these records to the IRS.
This enforcement action was filed on January 6, 1986, and on March 6, 1986, Robinson filed a motion to intervene so that his interests as the person who would be required to actually produce the corporate records may be protected. Also on March 6, 1986, Darwin and Robinson together filed a response to petitioners' petition to enforce IRS summons and order to show cause, which opposes the petition for three reasons: 1) that enforcement of the summons would violate Robinson's personal Fifth Amendment right against self-incrimination; 2) that the summons is too broad, not limiting the scope to relevant or material records; and 3) that the specific request for "a list of all employees" during the years prior to those under investigation are unrelated to the investigation.
*1428 INTERVENTION
It is established that a taxpayer under investigation has no right to intervene in an enforcement action of a summons for business records. Intervention may be allowed, however, when the circumstances are appropriate, such as where there is a significant protectable interest. Donaldson v. United States, 400 U.S. 517, 530-31, 91 S. Ct. 534, 542-43, 27 L. Ed. 2d 580 (1971). Examples of appropriate intervention include cases in which the taxpayer asserts that the material is sought for the improper purpose of obtaining evidence for use in a criminal prosecution, or that it is protected by the attorney-client privilege. Id. at 530, 91 S. Ct. at 542, citing Reisman v. Caplin, 375 U.S. 440, 449, 84 S. Ct. 508, 513-14, 11 L. Ed. 2d 459 (1964). In Donaldson, the Court concluded that the taxpayer's interest was of insufficient magnitude to allow intervention. Donaldson's interest was that the material in question could be damaging, but he stated no claim of a protectable interest.
This case significantly differs from Donaldson. Robinson and the corporation, Darwin, are so closely connected that Robinson received the summons and would be the appropriate corporate agent to produce the records. Because enforcement of the summons would compel Robinson, individually, to act, it appears entirely appropriate for intervention so that the issue of potential self-incrimination can be explored.
FIFTH AMENDMENT CLAIM
It is undisputed in this case that the contents of the requested documents are not privileged. Corporate papers generally are not viewed as "personal," and an officer holding the papers does so in a "representative" rather than a personal capacity. E.g., United States v. Malnik, 489 F.2d 682 (5th Cir.1974), cert. denied, 419 U.S. 826, 95 S. Ct. 44, 42 L. Ed. 2d 50. See Bellis v. United States, 417 U.S. 85, 88, 94 S. Ct. 2179, 2183, 40 L. Ed. 2d 678 (1974). When in that representative capacity, an individual may not assert a Fifth Amendment privilege on behalf of a corporation, partnership, or other collective entity. Bellis v. United States, 417 U.S. at 90, 94 S. Ct. at 2184. Of course, if the records are personal (and it would be respondents burden to prove that they are personal), then the documents are entitled to full Fifth Amendment protection. See In Re Grand Jury Investigation, 600 F. Supp. 436 (D.Md. 1984) (citing Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886); In re John Doe No. 462, 745 F.2d 834 (4th Cir.1984).
Robinson contends that he does have a Fifth Amendment claim in this case based upon the act of producing the documents.
The act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced. Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer. It also would indicate the taxpayer's belief that the papers are those described in the subpoena. Curcio v. United States, 354 U.S. 118, 125 [77 S. Ct. 1145, 1150, 1 L. Ed. 2d 1225] (1957). The elements of compulsion are clearly present, but the more difficult issues are whether the tacit averments of the taxpayer are both "testimonial" and "incriminating" for purposes of applying the Fifth Amendment.
Fisher v. United States, 425 U.S. 391, 410, 96 S. Ct. 1569, 1581, 48 L. Ed. 2d 39 (1976). Although in Fisher, the Court held that a subpoena served on taxpayers to produce their accountants' workpapers involved no Fifth Amendment violation because production was not testimonial in that case, the doctrine articulated in Fisher has successfully supported Fifth Amendment claims. See United States v. Doe, 465 U.S. 605, 104 S. Ct. 1237, 79 L. Ed. 2d 552 (1984). In Fisher, the Court concluded that producing the documents was not testimonial because the government in that case was not relying upon the taxpayer to prove the existence of, or his access to, the documents. Fisher, 425 U.S. at 411, 96 S. Ct. at 1581. Also, because the documents were prepared by the accountant rather than the taxpayer, *1429 the government was not relying upon the taxpayer to authenticate them. The accountant, rather than the taxpayer, would be the appropriate person to vouch for the authenticity and accuracy of the accountant's own work product. Id. at 413, 96 S. Ct. at 1582. Therefore, Fisher demonstrates that a taxpayer may be relieved from producing documents upon a showing that the documents are incriminating, and also that the act of producing the documents is communicative or testimonial.
In United States v. Doe, 465 U.S. 605, 104 S. Ct. 1237, 79 L. Ed. 2d 552 (1984), the IRS subpoenaed business records of a sole proprietorship. The contents of the records were unprotected because privilege may only be asserted to protect against compelled self-incrimination, whereas the Doe records were prepared voluntarily in the course of business. However, the Court upheld the District Court's explicit finding that the "enforcement of the subpoenas would compel respondent to admit that the records exist, that they are in his possession, and that they are authentic. These communications, if made under compulsion of a court decree, could violate respondent's Fifth Amendment rights."
Assuming, arguendo, that the "act of production" doctrine were applicable to this case, in order to prevail under that doctrine Robinson would have to prove: 1) that he would be incriminated by producing the documents, and 2) that the act of producing the documents would be communicative. The risks of incrimination must be shown to be "substantial and real," as in Doe, and not merely "trifling or imaginary." The government may then rebut the taxpayer's evidence by showing that possession, existence, and authentication of the documents are a "foregone conclusion." United States v. Doe, 465 U.S. at 614, n. 13, 104 S. Ct. at 1243, n. 13.
To date, Robinson has offered only broad conclusory assertions that production of the documents would be self-incriminatory. Absolutely no evidence has been offered to support these assertions and to explain how and why in his particular case he would be incriminated. Thus, Robinson's Fifth Amendment claim must be denied. In this factual and procedural setting, there is no need to reach the issue of whether the "act of production" doctrine does apply in this District to a corporate representative when the summons is served on the corporation.
BREADTH OF THE SUMMONS
Respondents argue that the summons is too broad because it encompasses all records or documents pertaining to the above corporation, and also because even the list of 25 kinds of records is based on no more than the "idle hope that something may be discovered." (quoting United States v. Harrington, 388 F.2d 520, 524 (2d Cir.1968)).
Under 26 U.S.C. § 7602, Congress authorized the use of the summons for any items "which may be relevant or material" to a particular tax inquiry. The Fourth Circuit has noted that the words "may be" were utilized, rather than "is" indicating that the IRS is not required to be certain that the documents are relevant in order to request their production. United States v. Richards, 631 F.2d 341, 345 (4th Cir.1980). Thus, the government need only to show that the inspection of the requested documents "might ... (throw) light upon the correctness of the taxpayer's return," or that the IRS has a "realistic expectation rather than an idle hope that something may be discovered." Id. at 345 (quoting Foster v. United States, 265 F.2d 183 (2d Cir.1959), and United States v. Harrington, 388 F.2d at 524).
Although the Fourth Circuit has acknowledged that the standard is lax, the government must make some showing of relevancy to prevent a fishing expedition through the taxpayer's records. United States v. Theodore, 479 F.2d 749 (4th Cir. 1973); United States v. Richards, 631 F.2d at 345. Limiting the scope of the government's intrusion is particularly important where the demand for records is directed not to the taxpayer who is the target of the investigation but to a third-party. United States v. Theodore, 479 F.2d at 754.
*1430 In this case, respondents have a legitimate objection to the general all-inclusive language utilized in the summons. By requesting "(a)ll records or documents pertaining to the above corporation," the IRS has acknowledged no limitations, and has imposed on respondents an unjustified burden of producing wholly irrelevant documents. Therefore, the Court limits the summons to the 25 specifically itemized requests. As to respondents objections to the 25 itemized requests, the Court will not limit the list further without a specific showing as to why the information or documents requested are not relevant to the IRS inquiry.
CONCLUSION
Darwin, in conjunction with Robinson, in the capacity of an intervenor, has not established that the enforcement of the May 2, 1985 IRS summons would compel Robinson to incriminate himself. Further, respondents have not shown that the summons, as limited to the 25 itemized requests, extends beyond the bounds of acceptable breadth. Therefore, the summons will be judicially enforced, as limited to the 25 itemized requests. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261197/ | 129 Cal. Rptr. 2d 923 (2003)
106 Cal. App. 4th 30
Glenda DEE, Plaintiff and Appellant,
v.
VINTAGE PETROLEUM, INC., Defendant and Respondent.
No. B155741.
Court of Appeal, Second District, Division Six.
February 6, 2003.
As Modified February 27, 2003.
As Modified on Denial of Rehearing March 5, 2003.
Review Denied May 14, 2003.
*924 Joseph M. Lovretovich, Woodland Hills, and Leonard Grayver, Palo Alto, for Plaintiff and Appellant.
Richard C. Turner, Agoura Hills, and J. Jane Fox for Defendant and Respondent.
Certified for Partial Publication.[*]
GILBERT, P.J.
An employee's supervisor asks her to he about company business, asks her to secretly take a document from the desk of another supervisor, insults her and uses profanity in her presence. On one occasion he makes a negative comment about her race. Here we conclude these circumstances coupled with a single ethnic remark is sufficient to create a triable issue of fact whether the employer has created a hostile work environment.
Glenda Dee appeals a summary judgment granted in favor of defendant Vintage Petroleum, Inc. (Vintage) on her employment discrimination lawsuit. We affirm in part, reverse in part, and remand with instructions.
FACTS
Dee began work as a production clerk for Vintage, in November 1993. In October 1998, Andy Marsh became her supervisor and Paul Strickland became Marsh's supervisor. Strickland changed Dee's working conditions. He required her to discuss "very personal matters" with him instead of bringing them to the attention of the personnel department as she had done in the past. He degraded and insulted her for following his orders and denied *925 responsibility when others criticized these orders. He called Dee a "bitch" and "constantly" used the word "asshole" in her presence. He told Dee the chairman of the board was a friend who would support his decision to terminate employees. He warned her that "if someone caused trouble for him . . . he'd drag that person down."
In March 1999, Strickland ordered Dee to secretly take a document from Marsh's desk and said, "Do not get caught." She complied, but while in Marsh's office Marsh walked in. When Strickland discovered what happened, he "scolded" her and said, "I told you not to get caught!"
In April 1999, Strickland told Dee that she should "make up stories" to hide information from Marsh. Dee stated, "My relationship with Andy is straightforward and honest, and I do not know how to lie to Andy." Strickland said, "Did I tell you to lie?" Dee replied, "Well, you did not tell me to he. You told me to make up stories. Isn't that the same as telling a lie?" Strickland said, "Well, what are you, a Filipino?" Dee said, "Yes, a Filipino." Strickland said, "Well, it is your Filipino understanding versus mine."
Dee left work on May 4, 1999, because of Strickland's conduct. Doctor Victor Contreras diagnosed Dee as suffering from a post traumatic stress disorder. In her deposition Dee admitted that she was able to work, continue a flower business, transport her children to school, take care of a baby, drive a car, walk, dress, sing, smile and go to PTA meetings. She admitted that she had hypertension but it was controlled by medication.
Dee went on disability leave, but offered to come back to work if Vintage would accommodate her disability by limiting her contacts with Strickland. Vintage refused and terminated Dee on August 20, 1999.
Dee sued Vintage alleging it violated the Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.) by 1) harassing her on the basis of "race [and] national origin" and refusing to accommodate her disability, 2) wrongfully terminating her, 3) breaching an implied contract which required good cause for termination, and 4) breaching the covenant of good faith and fair dealing. Vintage moved for summary judgment. Dee filed a timely opposition but shortly thereafter discovered additional evidence.
Dee's Supplemental Evidence
Christopher Olmstead, Dee's counsel, filed a declaration stating he was unable to file Marsh's deposition with the opposition to summary judgment. He took Marsh's deposition and, to his surprise, Marsh made admissions that were "essential" to Dee's case. Olmstead "expedited" the preparation of the transcript and attached it to a supplemental opposition he filed with the court on June 25. Marsh testified Dee was "visibly shaken" by Strickland's demands. He said Dee performed well on the job. He said Vintage needed good cause to terminate employees.
At the summary judgment hearing on June 28, Olmstead requested the court to either consider Marsh's deposition or "provide additional time for briefing on the issue." The court did not grant a continuance and did not consider Marsh's deposition. It granted summary judgment for Vintage. It stated, "One racial comment is insufficient as a matter of law to establish *926 a hostile environment" under FEHA. It found "[t]he evidence is undisputed that plaintiff is not disabled under FEHA." It ruled there was no contract which required Vintage to have good cause before terminating Dee.
DISCUSSION
I. Dee's Additional Evidence
Dee contends the trial court erred by granting summary judgment without considering her recently discovered additional evidence. We agree.
"`[A] summary judgment is a drastic measure which deprives the losing party of trial on the merits.'" (Bahl v. Bank of America (2001) 89 Cal. App. 4th 389, 395, 107 Cal. Rptr. 2d 270.) "To mitigate summary judgment's harshness, the statute's drafters included a provision making continuanceswhich are normally a matter within the broad discretion of trial courtsvirtually mandated. . .." (Ibid.; Code Civ. Proc., § 437c, subd. (h).) Where the opposing party submits an adequate affidavit showing that essential facts may exist but cannot be presented timely, the court must either deny summary judgment or grant a continuance. (Frazee v. Seely (2002) 95 Cal. App. 4th 627, 633, 115 Cal. Rptr. 2d 780.)
Olmstead's declaration explained why he was unable to file the deposition of Marsh within the deadline for opposing summary judgment. He stated that Marsh made admissions that were "essential" to Dee's case. Marsh's testimony was relevant as it supported Dee on such issues as a hostile working environment and whether there was a good cause requirement to terminate Vintage employees. Olmstead acted promptly so that the deposition transcript was available to the court before the summary judgment hearing.
At the hearing, he requested the court to either consider Marsh's deposition or "provide additional time for briefing on the issue." But the court did neither. It should have granted a continuance so it could consider the additional evidence. (Frazee v. Seely, supra, 95 Cal.App.4th at p. 633,115 Cal. Rptr. 2d 780.) Not doing so was reversible error. (Ibid.)
II. Hostile Work Environment
Dee contends the trial court erred because Strickland's ethnic slur combined with other evidence established a triable issue of fact on the issue of a hostile work environment. We agree. We review an order granting summary judgment de novo to decide whether there is a triable issue of fact. (Brantley v. Pisaro (1996) 42 Cal. App. 4th 1591, 1601, 50 Cal. Rptr. 2d 431.
"[California's] Fair Employment and Housing Act (Gov.Code, § 12900 et seq.) . . . explicitly prohibits an employer from harassing an employee on the basis of race, sex or [ethnicity.]" (Etter v. Veriflo Corporation (1998) 67 Cal. App. 4th 457, 464, 79 Cal. Rptr. 2d 33.) Harassment includes "epithets, derogatory comments or slurs. . .." (Ibid.) ". . . California courts have been guided in their interpretations of FEHA by the federal court decisions interpreting Title VII" of the federal Civil Rights Act (42 U.S.C. § 2000e-2(a)(l)). (Ibid.) To prove a claim under Title VII, the harassment must be "sufficiently severe or pervasive `to alter the conditions of [the victim's] employment and create an abusive working environment.'" (Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 67, 106 S. Ct. 2399, 91 L. Ed. 2d 49.)
*927 Vintage contends that the trial court correctly ruled that "[o]ne racial comment is insufficient as a matter of law to establish a hostile environment." But "there is neither a threshold `magic number' of harassing incidents that gives rise . . . to liability . . . nor a number of incidents below which a plaintiff fails as a matter of law to state a claim." (Rodgers v. Western-Southern Life Insurance Co. (7th Cir.1993) 12 F.3d 668, 674.)
In many cases, a single offensive act by a co-employee is not enough to establish employer liability for a hostile work environment. But where that act is committed by a supervisor, the result may be different. (Brooks v. City of San Mateo (9th Cir.2000) 229 F.3d 917, 927, fn. 9.) In Brooks, Selvaggio, a male employee, made improper advances and touched the breast of a female employee. The Ninth Circuit held that this single incident was insufficient to support a Title VII claim. But it also stated, "A different question would arise if Selvaggio were Brooks' supervisor, rather than her co-worker. Because the employer cloaks the supervisor with authority, we ordinarily attribute the supervisor's conduct directly to the employer." (Ibid.) "Thus, a sexual assault by a supervisor, even on a single occasion, may well be sufficiently severe so as to alter the conditions of employment and give rise to a hostile work environment claim." (Ibid.)
In other jurisdictions a single racial slur by a supervisor may also create a hostile work environment. (Rodgers v. Western-Southern Life Insurance, supra, 12 F.3d at p. 675.) The Seventh Circuit stated, "Perhaps no single act can more quickly 'alter the conditions of employment and create an abusive working environment' . . . than the use of an [unambiguous] racial epithet . . . by a supervisor in the presence of his subordinates." (Ibid.)
In Taylor v. Metzger (1998) 152 N.J. 490, 508 [706 A.2d 685, 694] the New Jersey Supreme Court reversed a summary judgment granted to an employer in an employment discrimination case. It concluded that where a supervisor makes a single racial slur, that exacerbates the severity of the remark and is sufficient to establish a triable issue of fact. (Id. at pp. 504, 508, 706 A.2d 685.)
Here Strickland's remark that "it is your Filipino understanding versus mine" is an ethnic slur, both abusive and hostile. Dee testified it was "very demeaning." Strickland's slur followed Dee's complaint that he told her to lie. A reasonable inference is that Strickland wished to intimidate her so that she would not complain to higher management about his conduct.
A reasonable trier of fact could infer that the racial slur was not an isolated event because it explained Strickland's motivation for creating an abusive working environment for Dee. Dee's evidence showed that Strickland called her a "bitch" and "constantly" used the word "asshole." He berated her, "harassed" her, ordered her to lie and blamed her for tasks he ordered her to perform.
Strickland warned Dee that the chairman of the board was a friend who would support his decisions. Dee left because of Strickland's conduct. His actions were stressful to her. We also note that Marsh's deposition testimony corroborates, to a significant extent, Dee's claims about an abusive working environment. He testified Strickland made unreasonable demands over "petty things" and Dee, a good worker, was "visibly shaken" by Strickland's conduct. It could infer that Strickland felt the company would not believe Dee because of her ethnicity.
*928 Vintage contends Dee has no discriminatory discharge claim because it replaced her with a person of Hispanic origin. But Dee's claim involved discrimination based on her Filipino ancestry. Vintage did not replace Dee with someone from that ethnic group. There was a triable issue of fact.
Disability Under FEHA[**]
IV. At Will Employment
Dee contends that Vintage needed good cause to terminate her employment. Vintage responds that Dee's evidence did not overcome the presumption that her employment was at will. (Lab.Code, § 2922.)
Whether there is an implied contract not to terminate an employee except for good cause "must be determined from the `totality of the circumstances.'" (Guz v. Bechtel National, Inc. (2000) 24 Cal. 4th 317, 337, 100 Cal. Rptr. 2d 352, 8 P.3d 1089.)
We have already ruled that the court should have considered the deposition of Marsh, Dee's supervisor, as additional evidence. In that deposition Dee's counsel asked him, "[Vintage] can't just fire you for no reason. They have to have good cause to fire you; is that right?" Marsh responded "That's my belief."
The judgment is affirmed as to the trial court's ruling that Dee did not have a disability under the FEHA. The judgment is otherwise reversed and remanded as to the court's ruling granting Vintage summary judgment. Costs to appellant.
We concur: YEGAN and COFFEE, JJ.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part III.
[**] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260822/ | 236 P.3d 4 (2010)
Denise BOORMAN, an individual and as the personal representative of Richard Leslie Francis Boorman; Billy Christian Boorman, a minor; Dean Alfred Boorman; Rita Van Ingen; Diane Goodwin; and Gemma Barker, Appellants,
v.
NEVADA MEMORIAL CREMATION SOCIETY, INC., a Nevada corporation formerly identified as Nevada Funeral Service; Steve Allen; Clark County; Clark County Coroner's Office; and Monique Beverley, Respondents.
No. 52492.
Supreme Court of Nevada.
July 29, 2010.
*5 John S. Rogers, Las Vegas; Capp & Marsh and Jonathan C. Capp, Oceanside, California, for Appellants.
David Roger, District Attorney, and Laura C. Rehfeldt, Deputy District Attorney, Clark County, for Respondents Clark County, Clark County Coroner's Office, and Monique Beverley.
Freeman Law Firm and Robert W. Freeman Jr., Henderson, for Respondents Nevada Memorial Cremation Society and Steve Allen.
Before the Court En Banc.
OPINION
By the Court, PARRAGUIRRE, C.J.:
The United States District Court for the District of Nevada certified ten questions relating to causes of action for the alleged negligent handling of a deceased person's remains.[1] The first three questions generally ask us to decide who may assert a cognizable emotional distress claim for the alleged negligent handling of a deceased person's remains and to determine the necessary requirements to assert such a claim, without distinguishing between the defendant actors involved in this action. Because our answer necessarily depends upon identifying the alleged negligent actor, we must re-craft those questions to focus on the two actors involveda mortuary and the county coroner. As a result of this re-crafting, we do not view it necessary to separately answer the questions relating to a county coroner's duty not to lose, misplace, or misappropriate the deceased person's organs. In our view, the question of whether a county coroner owes duty not to lose, misplace, or misappropriate a deceased person's organs is consumed within the question of whether the county coroner owes a duty not to negligently handle a deceased person's remains.
*6 We therefore rephrase the ten certified questions to focus on three primary inquires.[2]See, e.g., Palmer v. Pioneer Inn Assocs., Ltd., 118 Nev. 943, 945, 59 P.3d 1237, 1238 (2002) (rephrasing certified questions under NRAP 5).
The first primary inquiry focuses on the mortuary. Specifically, what relationship must a plaintiff have to a deceased person to assert a cognizable emotional distress claim related to the alleged mishandling of the deceased person's remains by a mortuary? Must the plaintiff observe or have some sensory perception of the act causing insult to their loved one's remains? And must the plaintiff demonstrate physical impact or serious emotional distress causing physical injury or illness?
The second primary inquiry is much like the first but focuses on the county coroner. Specifically, what relationship must a plaintiff have to a deceased person to assert a cognizable emotional distress claim related to the alleged mishandling of the deceased person's remains by a county coroner? Must the plaintiff observe or have some sensory perception of the act causing insult to their loved one's remains? And must the plaintiff demonstrate physical impact or serious emotional distress causing physical injury or illness?
The third primary inquiry is whether a claim for conversion of a deceased human body or its parts exist under Nevada law.
We answer these three questions as follows. First, close family members who were aware of the death of a loved one and to whom mortuary services were being provided may assert an emotional distress claim for the negligent handling of a deceased person's remains against a mortuary. Those persons do not need to observe or have any sensory perception of the offensive conduct, and do not need to present evidence of any physical manifestation of emotional distress. Second, the only person who may assert an emotional distress claim against a county coroner for the negligent handling of a deceased person's remains is the person with the superior right to dispose of the decedent's body. That person does not need to observe or have any sensory perception of the offensive conduct, and does not need to present evidence of any physical manifestation of emotional distress. Third, a claim for conversion of a deceased human body or its parts does not exist under Nevada law.
FACTS AND PROCEDURAL HISTORY
These certified questions arise from a federal district court action brought by appellants Denise Boorman (Richard Boorman's mother) and other family members (collectively, Boorman) against respondents Nevada Memorial Cremation Society (the mortuary), Clark County, and the employees of both entities, for returning Richard Boorman's (Richard) body to England without its internal organs.
Richard, a 29-year-old from London, England, died from what appeared to be an excessive consumption of alcohol and drugs while he was vacationing in Las Vegas for a bachelor party. Following his death, his body was transported to the Clark County Coroner for an autopsy, where the county coroner removed the internal organs for examination. The county coroner contends that the organs were then placed in a plastic bag between Richard's legs, and that after the autopsy was complete, Richard's body and its internal organs were sent to the mortuary. After the mortuary embalmed Richard's body, it sent his remains back to England.
Upon receipt of his body, Boorman contends that the English authorities opened up Richard's body cavity to discover that all the internal organs had been removed and replaced with a rolled up cloth sheet. To date, Richard's organs have not been located.
Based upon these facts, Boorman filed an action in United States District Court for the District of Nevada alleging, among other things, that respondents were liable for claims of emotional distress, breach of fiduciary duty, and conversion for the negligent handling of Richard's body. The federal district *7 court concluded that no controlling Nevada authority existed with regard to Boorman's claims and certified ten questions for this court to answer, which we accepted.[3]
DISCUSSION
Inquiry related to the mortuary
Boorman argues that close family members who are aware that mortuary services are being performed should have standing to assert an emotional distress claim for the alleged negligent handling of a deceased person's remains. Boorman further argues that those persons need not observe the offending acts or demonstrate any physical manifestation to succeed on such a claim. We agree.
This court has never had the opportunity to address the specific factual scenario raised in appellants' federal complaint. While we have recognized that an individual may have a cause of action for emotional distress in other contexts, see, e.g., Barmettler v. Reno Air, Inc., 114 Nev. 441, 447-48, 956 P.2d 1382, 1386-87 (1998) (concluding that direct victims of negligent conduct may bring a claim for emotional distress); Grotts v. Zahner, 115 Nev. 339, 340, 989 P.2d 415, 416 (1999) (recognizing witness-bystander claims for emotional distress), we have never been presented with the opportunity to discuss the scope of an emotional distress claim resulting from the alleged negligent handling of a deceased person's remains.
Although we have not addressed this issue in Nevada, the negligent handling of a deceased person's remains is a commonly recognized tort. For example, the California Supreme Court addressed this issue in Christensen v. Superior Court, which is helpful to our discussion. 54 Cal. 3d 868, 2 Cal. Rptr. 2d 79, 820 P.2d 181 (1991).
In Christensen, friends and relatives of the decedent brought an emotional distress cause of action against a mortuary and crematory for negligently and intentionally mishandling the deceased's remains. See id. at 184-85 (alleging that mortuary and crematory defendants harvested decedent's body parts and organs). In determining the class of persons who may assert such a claim, the California Supreme Court rejected the limitation that only those persons who have the statutory right to control the disposition of the body and who contract for its disposition may assert an emotional distress claim. Id. at 183. That class of persons "is not a reliable indicator of the family members who may suffer the greatest emotional distress if the decedent's remains are mishandled." Id. at 191.
Instead, the Court reasoned that "[o]ne of several children of the decedent may arrange for the services on behalf of all siblings, as well as a surviving spouse or parent of the decedent [and, i]f so, the crematory or mortuary assumes a duty to all of these family members."[4]Id. at 191. By undertaking such a duty, mortuary and crematory operators "create[ ] a special relationship obligating them to perform [funeral] services in the dignified and respectful manner the bereaved expect...." Id. at 193. Therefore, the Court concluded that such a defendant owes a duty to "close family members who were aware that funeral and/or crematory services were being performed, and on whose behalf or for whose benefit the services were rendered." Id. at 183.
We are persuaded by the California Supreme Court's reasoning in Christensen as it relates to what class of person may assert an emotional distress claim against a mortuary.
Unlike the duty of a county coroner, which we discuss in the next section, a mortuary voluntarily undertakes a duty to competently prepare the decedent's body for the benefit of the bereaved. See Christensen, 2 Cal. *8 Rptr.2d 79, 820 P.2d at 193. While we must limit liability at some point, and thus conclude that a mortuary's duty does not run to all persons potentially affected by the decedent's passing, such as close friends and distant relatives, we cannot conclude that a mortuary only owes a duty to the person with the right to dispose of the body.
Limiting recovery for emotional distress damages to the person with the right to dispose of the body would be an arbitrary delineation. See id. at 191. Certainly, in some instances the person with the right to dispose of the body would arguably suffer emotional distress upon learning about the negligent treatment of a loved one's body. However, in many other instances, a close family member who is not the person with the right to dispose of the body may be more affected by such negligent conduct. Therefore, we conclude that close family members who are aware of both the death of a loved one and that mortuary services were being performed may bring an action for emotional distress resulting from the negligent handling of the deceased's remains.
We further conclude that persons who may assert such a claim do not need to observe or perceive the negligent conduct, or demonstrate any physical manifestation of emotional distress. Requiring a potential plaintiff to observe or perceive the negligent conduct would essentially grant immunity to persons who negligently handle a deceased's remains in many instances because the activities of a mortuary mostly occur behind closed doors. See Contreraz v. Michelotti-Sawyers, 271 Mont. 300, 896 P.2d 1118, 1122 (1995) (requiring a potential plaintiff to be present or observe the offending act "is an unreasonable and arbitrary limitation" and "[u]pholding such a rule would create an immunity that could protect mortuaries from their egregious conduct while barring recovery to those persons possibly suffering the greatest harm").
Also, our historical concern that emotional distress must be demonstrated by some physical manifestation of emotional distress is not implicated in this context. We need not question the trustworthiness of an individual's emotional anguish in cases involving desecration of a loved one's remains. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 54, at 362 (5th ed. 1984) ("[A group of cases eliminating the physical manifestation requirement] has involved the negligent mishandling of corpses ... [because there is] ... an especial likelihood of genuine and serious mental distress, ... which serves as a guarantee that the claim is not spurious."); Allen v. Jones, 104 Cal. App. 3d 207, 163 Cal. Rptr. 445, 450 (1980) (concluding that "damages are recoverable... without physical injury for negligent mishandling of a corpse"); Brown v. Matthews Mortuary, Inc., 118 Idaho 830, 801 P.2d 37, 44 (1990) (exempting the physical manifestation of emotional distress requirement in cases involving the negligent handling of a deceased person's remains).
Therefore, while a plaintiff must allege some emotional disturbance resulting from the defendant's negligent conduct, there is no need to demonstrate any physical manifestation of that emotional distress. Ultimately, the determination of whether a close family member should be able to recover any damages in such an action is a question for the trier of fact.[5]
*9 Inquiry related to the county coroner
Despite our conclusion in the previous section, we cannot conclude that the duty of a county coroner is as expansive as the duty of a mortuary. Unlike a mortuary, which voluntarily undertakes a duty to perform funeral services on behalf of the bereaved, a county coroner is obligated by law to perform its services. See NRS 259.050(1) (requiring the coroner to "make an appropriate investigation" when there are "reasonable ground[s] to suspect that [a] death has been occasioned by unnatural means"). The county coroner does not create a special relationship nor does he or she undertake any particular duty to the bereaved to prepare the deceased's body for funeral services.[6] Rather, the county coroner's duty is to investigate the cause of death and, so performing its duty, there may be instances where a county coroner needs to examine the body or its parts.[7]
Nevertheless, a county coroner is not completely absolved from any liability. A county coroner has a narrow limited duty to account for a deceased person's remains and may be held liable for emotional distress to the person with the right to dispose of the deceased's body for negligently handling a deceased person's remains.
We find the Arizona Court of Appeals' decision in Morton v. Maricopa County, 177 Ariz. 147, 865 P.2d 808 (Ariz.Ct.App.1993), particularly helpful to our decision. In Morton, the court recognized that a county coroner owed a duty not to negligently prevent the proper interment or cremation of a deceased's body but that the duty was only owed to the person with the right to dispose of the deceased's body. Id. at 812. The Morton court quoted section 868 of the Restatement (Second) of Torts in recognizing that a county coroner could be held liable:
"One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body."
Morton. 865 P.2d at 812 (quoting Restatement (Second) of Torts § 868 (1979)). The Morton court further acknowledged that "`[t]here is no need to show physical consequences of the mental distress.'" See id. at 812 n. 2 (quoting the Restatement (Second) of Torts § 868 cmt. a).
We agree with Morton and the Restatement (Second) of Torts section 868 that the only person who can assert an emotional distress claim against a county coroner in this context is the person with the right to dispose of the body. While the only person who may assert this claim is the person with the right to dispose of the body, the remaining elements required to prevail on this claim are the same as those relating to an emotional distress claim against a mortuarythe person need not perceive the offending act or demonstrate any physical manifestations of emotional distress.
Does a claim for conversion of a deceased human body or its parts exist under Nevada law?
A claim for conversion of a deceased human body or its parts does not exist under Nevada law.
Conversion is defined as "a distinct act of dominion wrongfully exerted over another's personal property in denial of, or inconsistent with his title or rights therein or in derogation, exclusion, or defiance of such title or rights." Evans v. Dean Witter Reynolds, Inc., 116 Nev. 598, 606, 5 P.3d 1043, 1048 (2000) (internal quotations omitted). Thus, the essential question before us is whether a deceased human body or its parts *10 is "personal property" in order to support a claim for conversion.
Consistent with the majority of jurisdictions that have addressed this issue, we cannot conclude that there is a property right in a deceased human body or its remains. See, e.g., Shults v. U.S., 995 F. Supp. 1270, 1275-76 (D.Kan.1998) (construing that Mississippi law did not support a claim for conversion and noting that "the partial remains of a human body[ ] has no compensable value"); Culpepper v. Pearl Street Bldg., Inc., 877 P.2d 877, 882 (Colo.1994) ("We formally reject the fictional theory that a property right exists in a dead body that would support an action for conversion."); Walser v. Resthaven, 98 Md.App. 371, 633 A.2d 466, 477 (Md. Ct.Spec.App.1993).[8] Concluding otherwise may create morbid consequences, setting up an incentive for the person with the right to the disposition of the body to sell his or her loved one's remains for profit. We therefore answer this question, in the negative and conclude that Nevada law does not recognize a claim for conversion of a deceased human body or its parts.
We therefore answer the certified questions as set forth above.
We concur: HARDESTY, DOUGLAS, CHERRY, SAITTA, GIBBONS and PICKERING, JJ.
NOTES
[1] The ten certified questions were presented to us as follows:
1. What relationship must a plaintiff have to a deceased person to assert a cognizable emotional distress claim related to the alleged mishandling of the deceased person's remains?
2. In asserting such a claim, must the plaintiff demonstrate physical impact or serious emotional distress causing physical injury or illness?
3. In asserting such a claim, must the plaintiff observe or have some sensory perception of the act causing insult to their loved one's remains?
4. Does a county coroner's office owe a duty to the family members of a deceased individual not to lose, misplace, or misappropriate the deceased person's organs such that the county coroner's office could be liable for emotional distress claims?
5. If the answer to question four is yes, to what class of persons is such a duty owed?
6. Does a county coroner's office owe a fiduciary duty to the family members of a deceased individual not to lose, misplace, or misappropriate the deceased person's organs, or to inform the family members about the whereabouts of such organs?
7. If the answer to question six is yes, to what class of persons is such a duty owed?
8. Does a claim for conversion of a deceased human body or its parts exist under Nevada law?
9. If the answer to question eight is yes, what class of persons may bring such a claim?
10. If the answer to question eight is yes, may such a plaintiff recover emotional distress damages arising out of the conversion of the human remains?
[2] In its certification order, the federal district court noted that it did "not intend its framing of the questions to limit [this court's] consideration of the issues."
[3] We note that respondents Nevada Memorial Cremation Society and its employees have failed to participate in this matter.
[4] The Court further stated that
[t]here is no reason to assume that a person who makes the arrangements is any more susceptible to emotional distress if the services are not competently performed than are the other family members. Indeed, in light of the emotional impact of the death of a close family member of the bereaved, it may be the relative least affected who is chosen by the family to represent them in arranging for funeral and related services.
Id. at 191.
[5] Similar to our resolution of this issue, the American Law Institute is drafting a new section in the Restatement (Third) of Torts: Liability for Physical and Emotional Harm addressing this situation, which currently reads:
An actor whose negligent conduct causes serious emotional disturbance to another is subject to liability to the other if the conduct:
...
(b) occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional disturbance. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 46 (Tentative Draft No. 5, 2007). The tentative draft Restatement limits recovery under this tort to a class of persons "in the relationship or those for whom the undertaking or activity was being performed...." Id. § 46 cmt. b. The tentative draft does not mention any requirement that the person bringing the claim must observe or perceive the negligent conduct. This rule is not limited to cases in which there are physical manifestations; the only requirement is that the potential plaintiff demonstrate serious emotional distress. See id. § 46 cmt. g.
[6] Because a county coroner does not create a special relationship with family members of the deceased, we answer the question of whether a county coroner owes a fiduciary duty not to lose, misplace, or misappropriate a deceased person's organs, or to inform family members of the organs' whereabouts, in the negative.
[7] For example, a coroner may need to dissect a deceased's organs and dispose of body parts after the investigation. While a bereaved may be emotionally upset that the deceased body is not returned with all of its organs, the county coroner cannot be held liable for carrying out the duties of his or her job.
[8] While some jurisdictions have adopted the theory that a person has a "quasi-property" right to a deceased human body or its remains for burial purposes, most of those jurisdictions have refused to apply that theory to support a claim for conversion of a deceased human body or its parts. See, e.g., Colavito v. New York Organ Donor Network, Inc., 356 F. Supp. 2d 237, 244 (E.D.N.Y.2005); Bauer v. North Fulton Medical Center, 241 Ga.App. 568, 527 S.E.2d 240, 244 (1999). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260841/ | 632 F. Supp. 622 (1986)
UNITED STATES of America, Plaintiff,
v.
Ira SEINFELD, Defendant.
No. 85-CR-753.
United States District Court, E.D. New York.
April 15, 1986.
*623 U.S. Atty., E.D. of N.Y., Brooklyn, N.Y. by John Gleeson, for plaintiff.
Sercarz, Schechter & Lopez, Brooklyn, N.Y. by Maurice H. Sercarz, for defendant.
MEMORANDUM AND ORDER
WEINSTEIN, Chief Judge:
Defendant is charged in a five-count indictment with knowing and unlawful possession of firearms (26 U.S.C. §§ 5845(a), 5845(b), 5861(d), 5871), possession of a firearm from which the serial number had been removed (26 U.S.C. § 5861(h)) and the unlawful manufacture of silencers (26 U.S.C. §§ 5845(a), 5845(b), 5861(f), 5871). He has moved to suppress the firearms, silencers, gun parts and ammunition seized from his apartment and garage pursuant to search warrants. The search warrants were predicated on information that the defendant had revealed to a government agent; the government agent had answered the telephone during the execution of a search warrant at the place of business of a seller of silencer kits.
Presented is the question of whether the conduct of the government agent answering the telephone violated defendant's constitutional rights. As indicated below, his rights were not violated.
FACTS
Members of the Tucson police department and special agents of the Bureau of Alcohol, Tobacco and Firearms executed a search warrant at the residence of one Al Waddell in Tucson, Arizona. Waddell, doing business as "Sionacs" from his home, was selling kits to manufacture gun silencers. Seized under the warrant were a number of these kits and documents. During the course of the search Waddell's incoming telephone calls were answered by a member of the Tucson police department posing as an employee of Sionacs. Twelve calls, each placing orders for silencer kits, were received.
One call was from an individual identifying himself as Ira Seinfeld. It is not disputed *624 that the caller was the present defendant. Defendant believed that he was talking to an employee of Sionacs. He asked that Mr. Waddell be informed that the two .22 caliber silencer kits he had previously purchased worked well.
Based upon the information obtained during this phone conversation, federal agents procured a search warrant for defendant's residence in this district. Upon executing the warrant, the federal agents discovered a large quantity of illegal firearms and firearm components. Included among the items seized were a fully loaded Uzi semi-automatic carbine, conversion kits to modify Uzi semi-automatic carbines to fire automatically, empty boxes in which Uzi carbines had been sold, instructional material relating to the manufacture of firearms and documents indicating that additional firearms could be found at the defendant's garage. Based upon this information a search warrant was obtained for the garage and another large quantity of firearms, silencers, firearm parts and ammunition was found.
LAW
A police officer on the premises of an illegal business pursuant to a search warrant may answer the telephone. See United States v. DeLutis, 722 F.2d 902, 909 (1st Cir.1983); United States v. Vadino, 680 F.2d 1329, 1335 (11th Cir.1982), cert. denied sub. nom. Natale v. United States, 460 U.S. 1082, 103 S. Ct. 1771, 76 L. Ed. 2d 344 (1983); United States v. Gallo, 659 F.2d 110, 113-15 (9th Cir.1981); United States v. Campagnuolo, 592 F.2d 852, 861-64 (5th Cir.1979); United States v. Fuller, 441 F.2d 755, 760 (4th Cir.), cert. denied, 404 U.S. 830, 92 S. Ct. 73, 30 L. Ed. 2d 59 (1971).
Two rationales support this result. First, when the telephone calls are related to the purpose of the search the calls fall within the general language in a warrant regarding evidence of the crime and thus may be "seized." See, e.g., United States v. Fuller, 441 F.2d 755, 760 (4th Cir.), cert. denied, 404 U.S. 830, 92 S. Ct. 73, 30 L. Ed. 2d 59 (1971); United States v. Kane, 450 F.2d 77, 84-85 (5th Cir.1971). Illegal bookmaking and gambling activities are generally involved and the warrant authorizes the seizure of "wagering paraphernalia" arguably a category encompassing oral wagers. In the present case no such catchall phrase was present in the Tucson warrant.
A second theory supporting authority to answer telephones is that the calls are reasonably related to the purpose of the search so that there need not be explicit authority in the warrant for the "seizing" of the calls. See, e.g., United States v. Ordonez, 722 F.2d 530, 542 (9th Cir.1983), mod. on other grounds, 737 F.2d 793 (9th Cir.1984). That is to say, if the telephone is necessary for the illicit business being conducted on the premises, and the agents are there lawfully, they may answer the phone.
We can assume on this record that it was necessary for Sionacs, in Arizona, to use the telephone in selling silencer component parts to purchasers in New York. Selling illegal gun components is analagous to selling illegal drugs a business in which oral rather than written purchase orders are relied upon. See, e.g., United States v. Ordonez, 737 F.2d 793, 810 (9th Cir.1984) (telephone is necessarily related to the business of selling illegal drugs from home).
The Tucson officer who answered the phone took twelve calls and all related to the buying of silencer component parts. This is sufficient evidence that Waddell used the telephone in conducting his illegal business. Cf. United States v. Congote, 656 F.2d 971, 974 n. 5 (5th Cir.1981) (where only one call answered was related to cocaine and the rest were personal calls, the phone did not play an integral role in the crimes under investigation); United States v. Kane, 450 F.2d 77, 85 (5th Cir.1971) (standard of reasonableness would be transgressed if a number of calls were innocent).
*625 Defendant's own affidavit states that he believed he was calling the office of Sionacs. There is also some evidence, which the defendant does not dispute, that the defendant had made a number of previous calls to Waddell's home, all of which were related to the purchase of silencer kits. It seems clear that the telephone was a necessary part of Waddell's business and that the defendant was making a commercial, not a personal, call. It was reasonable for the agents to believe that the incoming calls would be related to the purpose of their search. The Tucson agents therefore acted within the scope of the warrant when they answered the telephone.
Unlike the cases cited above, here the information and evidence gathered by answering the telephone is being used against the person who placed the call, and not the possessor of the telephone, the intended recipent of the call. One court approving use against the telephone's possessor has relied upon the fact that the officer "had probable cause to believe that other evidence ... could be obtained by answering a ringing telephone in premises that had already yielded warrant-authorized evidence ...." United States v. Kane, 450 F.2d 77, 85 (5th Cir.1971). "Probable cause" in this context is cause to believe that the evidence sought [would] aid in a particular apprehension or conviction." Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 307, 87 S. Ct. 1642, 1650, 18 L. Ed. 2d 782 (1967). Cf. United States v. Zenni, 492 F. Supp. 464, 469 (E.D.Ky.1980) (utterances of the bettors "telephoning in their bets were nonassertive verbal conduct, offered as relevant [against the person whose premises were being searched] for an implied assertion to be inferred from them, namely that bets could be placed at the premises being telephoned").
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) does not apply because defendant was not in custody or charged when he called. See, e.g., Oregon v. Elstad, 470 U.S. 298, ___, 105 S. Ct. 1285, 1291, 84 L.Ed.2d 222(1985). Although admissions obtained through trickery or deceit are deemed involuntary, and cannot be used against the defendant, see, e.g., Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964); Spano v. New York, 360 U.S. 315, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1959), misrepresentations of identity of a policeman acting under cover are not such trickery. See United States v. Little, 753 F.2d 1420, 1438 (9th Cir.1984) (imposing affirmative duty on federal agents to identify themselves whenever questioned would effectively end all federal undercover operations).
Undercover operations have long been sanctioned by the courts. See, e.g., United States v. Walker, 760 F.2d 144, 146-47 (7th Cir.1985); United States v. Reynolds, 762 F.2d 489, 491-93 (6th Cir. 1985) (incriminating statements made to undercover agents did not involve compulsory self-incrimination in violation of the Fifth Amendment). The government has even gone so far as to set up "shop" to ensnare criminals. The most famous of such cases is the Abscam operation, in which the government created a fictitious Middle East corporation to uncover political corruption. See G. Caplan, Abscam Ethics (1983); Gershman, Abscam, the Judiciary and the Ethics of Entrapment, 91 Yale L.J. 1565 (1982). Establishment of such firms has been consistently upheld by the courts.
Subject to the defense of entrapment, the government could set up a fictitious firm, as it did in the Abscam operation, in order to sell illegal firearms to defendant. If defendant had called such a fictitious firm in order to purchase guns and if the government procured a warrant and searched his premises based on that phone call, any evidence so seized would be admissible against him. A fortiori, the relatively minor trickery by the Tucson policeman posing as an employee of Sionacs does not create a constitutional impediment to use of defendant's voluntary statements as a basis for a search warrant.
Defendant's claim that the agent's answering of Waddell's telephone during *626 the execution of a search warrant violated his rights under the Fourth Amendment is also without merit. Some telephone conversations are protected by the Fourth Amendment. See Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967). The person relying on this protection must show a legitimate expectation of privacy in the telephone call. See Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). There is a lesser expectation of privacy in a business as compared to a home.
The greater latitude to conduct warrantless inspections of commercial property reflects the fact that the expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual's home....
Donovan v. Dewey, 452 U.S. 594, 598, 101 S. Ct. 2534, 2539, 69 L. Ed. 2d 262 (1981). There may be occasions when a caller to a business phone has an expectation of privacy, but this is not one of them.
Even less expectation of privacy exists in the premises of an illegal business. Cf. United States v. White, 401 U.S. 745, 752, 91 S. Ct. 1122, 1126, 28 L. Ed. 2d 453 (1971) ("Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police."); United States v. Napolitano, 552 F. Supp. 465, 483 (S.D.N.Y.1982) (defendant has "no justifiable expectation "that confidence regarding criminal activities will be kept").
Although the telephone in question was located in the home of Waddell, the defendant believed that he was calling the firm of Sionacs. Defendant did not have a privacy interest in Waddell's apartment or telephone. See United States v. Congote, 656 F.2d 971 (5th Cir.1981). He did not terminate the call when informed that Waddell could not come to the telephone. After being informed that he was speaking to an employee of Waddell, defendant spoke freely and without hesitation. It seems clear that defendant intended to make a business call and not a personal call. Obviously he wanted to keep his conversations about his illegal business secret, but he had no justifiable expectation of constitutionally protected privacy.
United States v. Congote, 656 F.2d 971 (5th Cir.1981), a case quite similar to the one now before the court, held that a defendant has no legitimate right of privacy in either the apartment in which he had no interest or in a phone call to that apartment. The Fifth Circuit refused to suppress evidence obtained from the call, even though it held that the underlying search of the premises, the arrest of the occupants of the premises, and the actions of the officers in answering the phone call were all illegal since they had no search warrant.
In the case at hand neither the government nor the defendant is questioning the validity of the Tucson warrant. Defendant, as did Congote, instituted the calls and spoke freely with the agents.
Defendant's attempt to distinguish Congote on the ground that he "manifested his subjective expectation of privacy by seeking to ascertain the person with whom he was speaking" is unpersuasive. The agents in this case and in Congote did not impersonate the intended recipient of the call; instead they pretended to be the recipient's agent. Both Seinfeld and Congote spoke freely to someone they had never met before. The expectation that the stranger with whom a criminal is conversing about illegal activities is not a government agent does not convey standing to raise a Fourth Amendment claim.
CONCLUSION
Defendant's motion to suppress is denied.
So ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260846/ | 632 F. Supp. 1082 (1986)
MAURICE ELECTRICAL SUPPLY COMPANY, INC., Plaintiff,
v.
ANDERSON SAFEWAY GUARD RAIL CORPORATION, Defendant.
Civ. A. No. 85-0152.
United States District Court, District of Columbia.
March 26, 1986.
*1083 Saul M. Schwartzbach, Washington, D.C., for plaintiff.
Jack K. Segal, Flint, Mich., pro hac vice, and Richard H. Gordin, Washington, D.C., for defendant.
MEMORANDUM
GASCH, Senior District Judge.
I. INTRODUCTION
This breach of contract case was brought by plaintiff Maurice Electrical Supply Company, Inc. ("Maurice Electric") against defendant Anderson Safeway Guard Rail Corporation for its alleged failure to perform a contract to supply high mast lighting poles to be used in the construction of the Ft. McHenry Toll Plaza in Maryland. The Court's jurisdiction over the matter is based on diversity, plaintiff being a Delaware corporation whose sole place of business is the District of Columbia, defendant being a Michigan corporation.
*1084 The lighting poles were to have been manufactured by Skyline Structures ("Skyline"), a former subdivision of defendant Anderson that has since been sold to Valmont Industries. The other significant players in this action are Potomac Lighting Associates ("Potomac" or "Potomac Lighting"), the Baltimore-Washington area manufacturer's representative for Skyline, and Snowden River Corporation ("Snowden River"), a subsidiary of the Walter Truland Corporation ("Walter Truland"), which was the electrical subcontractor on the toll plaza project. However, neither Potomac, Snowden River or Walter Truland is a party to this suit.
This case was tried to the bench October 21-22, 1985. Based on the findings of fact and conclusions of law announced below, the Court will enter judgment for the defendant.
II. FINDINGS OF FACT
Plaintiff Maurice Electric is in the business of selling electrical fixtures for use in construction projects. In mid-November, 1983, Snowden River contacted plaintiff to obtain price quotes on electric fixtures to be used in the construction of the Ft. McHenry Toll Plaza. Snowden River's parent corporation, Walter Truland, was hoping to win the electrical construction subcontract on the plaza, to be built for the Maryland Department of Transportation. In order to furnish Snowden River's needs, Maurice Electric contacted several electrical manufacturer's representatives to obtain price quotations on, inter alia, high mast lighting poles and luminaires. One of those contacted was Potomac Lighting, representative for defendant's Skyline subdivision.
Potomac obtained a bill of materials and specifications for the high mast poles directly from Walter Truland. These were forwarded to Skyline by overnight courier service. However, pages from Skyline's own catalogue, depicting standard lighting poles, were also attached to the specifications and bill of materials sent to Skyline. Def's Exh. U. The information packet did not include a line drawing depicting the length of the individual segments or shafts that would make up each lighting pole. A few days later, Helen Hart, a Skyline quotation clerk, called Fred McGiffin, general partner of Potomac, with price quotes on individual items for Maurice Electric. McGiffin transmitted the price quotes to Marvin Kogod, an official of Maurice Electric. They were notably lower than any other price quotes Maurice Electric received for the items,[1] and therefore Maurice relied upon the Skyline price quotes when it submitted its price bid for resale to Snowden River shortly thereafter.
Unfortunately for all concerned, it appears the prices quoted to Maurice Electric were based on standard Skyline products and not those specially made to the specifications of the Maryland Department of Transportation ("DOT"). In fact, Skyline is unable to produce high mast lighting poles for Maryland because DOT always requires its poles to consist of 30-foot segments, or shafts, plus an overlap joint. Skyline's production equipment cannot handle lengths of metal over 30 feet long. The Maryland DOT consistently requires additional features on high mast poles that Skyline finds uneconomical to produce. Therefore, according to Bernard Jenkins, who at all relevant times was national sales manager at Skyline, Skyline generally declined to sell high mast lighting for Maryland *1085 DOT projects, although it did provide other items for DOT projects.[2]
In early January, 1984, Jenkins became aware that Skyline had supplied price quotes on individual high mast lighting poles for potential use in a Maryland DOT project. Because he knew that Skyline could not usually satisfy DOT specifications, he contacted Potomac on January 3 and asked McGiffin to send a blueprint or line drawing that usually accompanied specifications. This was the line drawing that had been omitted from the specifications sent in November, and it showed that the DOT project indeed required 30-foot-plus-lap joint segments. On January 11, 1984, Maurice Electric learned that it was likely Walter Truland would win the electrical construction contract on the plaza, and in that event, would purchase its supplies (through its Snowden River subsidiary) from Maurice. Based on this information, Marvin Kogod of Maurice placed an order over the phone on the same day, through Potomac Lighting, for Skyline products. The order restated the prices originally quoted in November.[3]
Potomac transmitted this oral purchase order to Skyline on January 12. Upon learning of it, Jenkins became upset because he now knew Skyline could not meet the Maryland DOT specifications. He testified he called McGiffin and Earl Dinsmore, a limited partner of Potomac, and told them both that Skyline could not provide the lighting poles. Potomac officials, fearing they would offend a good customer if they could not fill Maurice Electric's order, did not tell Maurice Electric that Skyline was not interested in the sale.
On January 31, Potomac received a written purchase order from Maurice Electric, confirming the terms of the oral order. This was forwarded to Skyline, where it was received no later than February 3, 1984. Rather than inform Maurice Electric of Skyline's reaction to the order, Dinsmore and McGiffin attempted to get Skyline to perform. They made several phone calls to Skyline to get the supplier to prepare "submittal drawings" which had to be submitted to DOT before final acceptance for use in the project. Jenkins testified that the Potomac officials pressed him to submit drawings based on Skyline's standard pole, in an attempt to get that item accepted by DOT instead of the special-made item. Jenkins refused to do so.[4] Skyline *1086 never sent Maurice Electric an order acceptance form, as it routinely did for orders it intended to fill. By letter dated March 6, 1984, Skyline notified Potomac it would reject plaintiff's order, and Potomac so notified plaintiff. Defendant Anderson Safeway sold the Skyline division to Valmont Industries a few days later.
By this time, Maurice Electric felt it was committed to supply Snowden River with high mast poles and related items and had to obtain these from other suppliers, at a cost of $47,303 above what it would have paid Skyline.
A few words are in order about the general practices of the parties and the industry. Like many other electrical manufacturers, Skyline had no sales staff of its own, but rather relied on manufacturer's representatives to promote its products and make sales. In this capacity, Potomac was authorized to obtain price quotes from the manufacturer and convey these quotes to the purchaser. Because electrical supplies were frequently resold for use by electrical construction contractors, officials at Skyline were aware that oral quotes had to be supplied quickly and that these oral quotes would be relied on in preparation of bids by the contractors and by the middlemen who resold to the contractors. However, as McGiffin of Potomac Lighting testified, verbal quotes are often subject to negotiation.
Because of the time constraints on the bid process, purchase orders are frequently placed orally and then confirmed at a later date in writing. Nonetheless, most manufacturers have a policy of home office acceptance before any sale is finalized, and in the case of Skyline, such home office acceptance was required to be in writing to clarify the specifications and the terms of the sale.[5] Although it was rare for Skyline to reject an order and decline to issue an acceptance form, this did happen three or four times a year. Potomac, as manufacturer's representative, transmitted purchase orders and order acceptances between Skyline and its customers. However, by express terms of its agreement with Skyline, Potomac was not authorized to enter into contracts on behalf of Skyline or to accept any orders without home office approval by Skyline.[6]
Based on these facts, the Court must determine whether a contract existed between Skyline and Maurice Electric, and if there be one, whether its enforcement is barred by the Statute of Frauds. If the Court determines that no contract was formed, it must consider whether judgment in favor of plaintiff is nonetheless required under the doctrine of promissory estoppel.[7]
*1087 III. CONCLUSIONS OF LAW
Plaintiff alleges a contract existed on the theory that defendant's November price quotation constituted an offer that plaintiff accepted by its telephone purchase order of January 11, 1984. In the alternative, plaintiff contends the November price quote was a promise upon which plaintiff reasonably relied in bidding on the contract to resell the high mast lighting poles and fixtures to Snowden River. Therefore, plaintiff contends it should recover on a theory of promissory estoppel.
A. Existence of a Contract
A necessary step in the formation of any contract is the making of an offer creating in the offeree the power of acceptance. This case involves a sale of goods within the ambit of the Uniform Commercial Code ("U.C.C."), codified at D.C.Code 28:1-101 et seq.[8] "Offer" is not defined by the U.C.C. and therefore the Court must look to the common law and law merchant. D.C.Code § 28:1-103.
The general rule is that a mere price quotation is not an offer, but rather is an invitation to enter into negotiations or a mere suggestion to induce offers by others. USEMCO, supra, 483 A.2d at 93; Maryland Supreme, supra, 369 A.2d at 1024, and authorities cited therein. It is the submission of a purchase order by a buyer in response to a price quote that usually constitutes the offer. J.B. Moore, supra, 273 S.E.2d at 556. However, whether a price quote may be considered an offer in any given case is a question of fact dependent on the nature of the particular acts or conduct and the circumstances surrounding the transaction. USEMCO, supra, 483 A.2d at 93; Maryland Supreme, supra, 369 A.2d at 1024. An offer must be definite and certain, and must be made under circumstances evidencing the express or implied intent of the offeror that its acceptance shall constitute a binding contract. Id.; J.B. Moore, supra, 273 S.E.2d at 557.
Neither case law nor the facts of this case support plaintiff's argument that the November price quote should be treated as an exception to the general rule. Plaintiff contends that it is the "usage of the trade" in the electrical supply business to treat price quotes as offers that may be accepted by submitting a purchase order based on the quote.[9] To this end, plaintiff offered the testimony of Marvin Kogod, an official of plaintiff. Although he testified that price quotes were regarded as offers within the trade (Tr. p. 39), and although he referred to the November price quote as defendant's "offer" (Tr. p. 11), the facts belie Kogod's conclusory statements.
Generally, the testimony of one officer of one of the parties as to that party's *1088 practices is insufficient to establish a usage of the trade. See Wright v. Commercial and Savings Bank, 297 Md. 148, 464 A.2d 1080, 1084 (1983). Apart from Kogod's testimony, the record does not support the conclusion that as a general rule in the electrical supply industry offers are made with sufficient detail as to be "definite and certain," or that they are made with the intent of the seller that their acceptance shall bind the seller to a contract. In fact, McGiffin of Potomac Lighting testified that suppliers' price quotes were often the subject of negotiation (Tr. p. 167). The other manufacturer's representative, Earl Dinsmore, testified that in general, a sale was not "finalized" until a purchase order was accepted by a manufacturer. (Tr. p. 216). Dinsmore and McGiffin testified that in most sales, home office acceptance was required, either orally or in writing. (Tr. p. 153, p. 216.).[10] Where the electrical product is to be used in a construction project, even with home office approval, the sale is conditional upon the ultimate purchaser's winning the construction contract, and upon approval of submittal drawings and materials by the party letting the construction contract (in this case, Maryland DOT). (Tr. pp. 104-105, testimony of Stephen M. L'Etoile; Tr. p. 119, testimony of Vernon L. Eytchisan). Because of the home office approval requirement, it cannot be said as a rule that when price quotes are given by electrical manufacturers they intend to be bound if a purchase order issues in response.
Even if the Court were to conclude that as a general usage of the trade, price quotes did constitute offers to contract, that finding would be superseded in this case by evidence of a course of dealing between these two specific parties. See D.C.Code § 28:1-205(4). Since Skyline traditionally followed a policy of requiring written home office acceptance when dealing with its customers through Potomac, see supra, note 6, and since there is evidence that Maurice Electric received just such a written acceptance form when it placed another order with Skyline through Potomac, see Def's Exh. C, Skyline's course of dealing with plaintiff shows that Skyline did not intend to be bound until it accepted plaintiff's orders by issuing an acceptance form. Maurice Electric had no reason to expect otherwise. Therefore, the Court concludes that price quotes were not generally made by Skyline with the express intention that it be bound, and the course of dealing between the parties would negate any implied intention to be bound.
The Court further concludes that the particular price quote here could not be deemed an offer. Nothing about the nature of the quote or the circumstances surrounding it would take it out of the general rule that a price quote is merely an invitation to negotiate. USEMCO, supra, 483 A.2d at 93. It was simply a statement of price for three individual high mast poles of varying heights. It did not specify quality or quantity, time and place of delivery, or terms of payment. There was no promise that the quote would remain open for a specified period of time.[11] The Court concludes *1089 that the price quote was not definite or certain enough to be capable of being converted into a contract by plaintiff's acceptance. See id.
This result is unchanged even though the Court agrees with plaintiff that the knowledge of Potomac, as agent for Skyline, must be imputed to the principal. See id. at 96. In this case, Potomac had obtained the specifications for the Maryland DOT project prior to obtaining the price quotes from Skyline. Therefore, Skyline may be estopped from denying the price quotes were based on products meeting DOT specifications. However, the price quotes were nonetheless for individual items and still lacked the other key terms identified above. Furthermore, as noted above, through its course of dealing with Skyline, plaintiff had notice that defendant did not as a general rule intend to be bound until it issued written home office acceptance, thereby negating any inference that the price quote be deemed an offer. See USEMCO, supra, 483 A.2d at 93.
While there have been several cases where courts found a price quote or bid amounted to an offer, they may be distinguished from the case at hand. In J.B. Moore, supra, the Virginia Supreme Court held an electrical supplier was bound by its price quote to a contractor that relied upon the quote in submitting its bid for a construction job. The court found an exception to the general rule because the supplier actually filled out the purchase order and submitted it to the buyer for signing, with the intent that it be an offer. 273 S.E.2d at 557.
Similarly, in Maryland Supreme, supra, the Maryland Court of Appeals found a price quote by a cement supplier to a construction contractor constituted an offer where the price quote was accompanied by a promise to supply cement in such quantity as the contractor required for a specific construction job, and added that "the price will be guaranteed throughout the job." Id. Thus Maryland Supreme involved not a mere price quote, but rather an offer to enter into a requirements contract with the price guaranteed. Those facts, neither of which are present here, took Maryland Supreme out of the ordinary case. Id.
Plaintiff wrongly relies on Janke Construction Co. v. Vulcan Materials Co., 386 F. Supp. 687 (W.D.Wis.1974), aff'd, 527 F.2d 772 (7th Cir.1976), for the proposition that "a price quotation by a subcontractor supplier or manufacturer constitutes an offer to sell, and implies the intent that its acceptance shall constitute a binding contract." (Plaintiff's Proposed Findings of Fact and Conclusions of Law, p. 6). In Janke, a construction contractor relied on price quotes received from a pipe supplier in preparing its bid on a construction contract. Quite to the contrary of what plaintiff states, the court in Janke found the price quote, unless made irrevocable, could not be the basis of making a contract; that the mere use of the price quote in preparing the bid did not create a binding contract; and that in any case, no contract existed. Janke, supra, 386 F.Supp. at 691-92. Rather, the court found for plaintiff on a theory of promissory estoppel.[12]
In sum, Skyline's November price quote was not an offer, and therefore, plaintiff could not have formed a contract by issuing its purchase order. Since Skyline eventually rejected plaintiff's order, Skyline was not bound in contract.[13]Cf. *1090 Solway Decorating Co. v. Merando, Inc., 240 A.2d 361, 362 (D.C.App.1968) (finding no contract existed where plaintiff relied on subcontractor's price quote in preparing bid on prime contract); N. Litterio & Co. v. Glassman Construction Co., 319 F.2d 736, 739 (D.C.Cir.1963) (finding same).
B. Promissory estoppel
The question remains as to whether defendant may be held liable on a theory of promissory estoppel because plaintiff relied upon defendant's price quote in bidding on the contract to resell the poles and fixtures to Snowden River. See Solway Decorating Co. v. Merando, Inc., 264 A.2d 501 (D.C.App.1970) (hereinafter "Solway II"); Solway Decorating Co. v. Merando, Inc., 240 A.2d 361 (D.C.App.1968) (hereinafter "Solway I"); Litterio, supra, 319 F.2d 736.
"To hold a party liable under the doctrine of promissory estoppel `there must be a promise which reasonably leads the promisee to rely on it to his detriment, with injustice otherwise not being avoidable.'" Solway I, supra, 240 A.2d at 362, citing Litterio, supra, 319 F.2d at 739. In the case at hand, defendant and its agent were aware that its price quotes were generally relied upon by purchasers in preparing bids for resale. However, in this case, the Court finds, plaintiff's reliance was not reasonable because of the great difference in price quotes received from defendant and the other two potential suppliers. See supra, note 1. While the price quotes obtained from the other two suppliers were quite similar to each other, they were anywhere from 50 to almost 100 percent higher than the price quotes given by defendant. In such circumstances, plaintiff's reliance was not justifiable.[14]Cf. Edward Joy Co. v. Noise Control Products, Inc. et al., 111 Misc. 2d 64, 443 N.Y.S.2d 361, 362 (N.Y.Sup.Ct.1981) (Promissory estoppel not applicable where defendant made honest mistake in preparing quote and plaintiff had reason to doubt accuracy of quote); *1091 Drennan v. Star Paving Co., 51 Cal. 2d 409, 333 P.2d 757, 761 (1958) (prime contractor may not reasonably rely on subcontractor's bid if prime contractor had reason to know bid was in error). Therefore, plaintiff may not recover based on promissory estoppel.
IV. CONCLUSION
In sum, the November price quotes on high mast poles were not certain or definite nor were they given by Skyline with the intent that it be bound. Therefore, they were not an offer creating in plaintiff the power of acceptance. Rather, plaintiff's purchase order constituted the offer here, an offer which defendant rejected. There was no contract.[15] Furthermore, although plaintiff relied to its detriment on defendant's price quotes, such reliance was not reasonable in light of the substantial difference in prices quoted by defendant and other would-be suppliers. Therefore, plaintiff may not recover on a theory of promissory estoppel. For the foregoing reasons, judgment will be entered in favor of defendant.
NOTES
[1] Defendant's Exh. X is a compilation prepared by plaintiff of the price quotes received by Maurice Electric for the lighting poles needed for the Maryland project:
PRODUCT Skyline Quality Lighting Halophane
100' pole $5,102 $ 8,705 $10,077
130' pole 8,731 13,565 13,622
133' pole 8,861 13,565 15,008
[2] The conclusion that the quotes were based on standard Skyline lighting poles is buttressed by the fact that Daniel Kelly, chief engineer at Skyline at all relevant times, testified that the engineering department was not consulted about pricing on the quote to Maurice Electric in November. It was the standard practice at Skyline for any price quotations on specialty items to be reviewed by the engineering department.
[3] Although Kogod testified that he reconfirmed the price quotes with officials at Potomac Lighting, the Court finds his testimony contradictory and not credible. Kogod first testified that he made a bid to resell the electrical equipment to Walter Truland in mid-November, shortly after receiving the Skyline price quotes. (Transcript ("Tr.") p. 11). He did not state that he questioned or reconfirmed the prices though they were significantly lower than other quotes he received, prior to bidding on the Truland contract. He later testified that he did reconfirm the prices at the time he placed the telephone order, but his testimony is confusing as to the timing of the reconfirmation (Tr. pp. 90-92). At one point, his testimony indicates reconfirmation was sought sometime after the plans to sell Skyline to Valmont Industries became known (Tr. p. 35). In his deposition, made part of the trial record, Kogod stated that he advised Fred McGiffin at Potomac that the Skyline prices were "low and good," but did not expressly state that he inquired as to the accuracy of the price quotes or sought reconfirmation. (Tr. p. 37). At best, the evidence indicates that Kogod inquired about the reliability of the quote, if at all, when he placed the purchase order in January, and not prior to bidding on the Truland contract in November. There was no testimony on the part of either McGiffin or Earl Dinsmore of Potomac that they were expressly asked to reconfirm the prices. McGiffin's testimony, at best, shows that Potomac was aware that plaintiff's oral purchase order, placed in January, was based on the November price quote. (Tr. p. 197). No one at Skyline was contacted and asked to recheck the price.
[4] Dinsmore and McGiffin testified that they had received assurances from individuals in Skyline's engineering department that the submittal drawings were in the works. Skyline engineer Daniel Kelly stated that he did receive several calls from Potomac inquiring about submittal drawings for orders pending for Maurice Electric, but he understood the inquiries to concern drawings for "booked" orders, e.g., those orders for which Skyline had issued an order acceptance form. He assured Potomac drawings were in preparation for those orders. He did not understand the calls to concern drawings for high mast lighting poles, because he had no knowledge of any booked order for those from Maurice Electric.
[5] McGiffin testified that most of the manufacturers he represented required home office approval, albeit in most cases, the approval was oral rather than in writing as required by Skyline. In his sworn deposition, made part of the trial record, McGiffin testified that home office approval was "surely" necessary for any major project. (Tr. pp. 154-55).
[6] Defendant's Exh. A, Manufacturers Representative Agreement, ¶ 5, states:
It is expressly understood and agreed by and between the parties that all orders and contracts are subject to acceptance or rejection by an officer or other authorized person or SKYLINE, at the main office of the Corporation, which approval or rejection, including any modification or condition, shall, in all cases be transmitted, in writing, to the customer, with a true copy to REPRESENTATIVE. No order and/or contract shall be binding upon SKYLINE until so accepted, SKYLINE reserves the right to refuse any business for lack of credit of the customer and/or for any other reason which, in the judgment of SKYLINE, rendered in good faith is sufficient grounds for refusal; REPRESENTATIVE shall not be entitled to any commission on any such order and/or contract so rejected by SKYLINE.
This agreement was originally entered into by Skyline and Earl Dinsmore. When Dinsmore became a limited partner of Potomac Lighting, Potomac acceded to the terms of the contract.
[7] By order of the Court, October 18, 1985, defendant was granted its motion to amend the answer to raise the defense of Statute of Frauds. The Court at that time reserved ruling on the issue of whether plaintiff could raise promissory estoppel as either an affirmative basis for recovery, though not pleaded in its complaint, or as a response to the Statute of Frauds defense. The Court concludes that it would be inequitable to permit defendant to raise the Statute of Frauds just a few weeks before trial, while denying plaintiff the right to raise promissory estoppel. Since the facts of the case as stated in the complaint were sufficient to notify defendant that the issue may be joined, the Court will treat plaintiff as having raised an affirmative claim for recovery based on promissory estoppel. See Solway Decorating Co. v. Merando, Inc., 264 A.2d 501, 503 (D.C.App.1970).
[8] Although the goods involved here were destined for use in a construction contract, at its heart it is a sale of goods. See USEMCO, Inc. v. Marbro Co., 60 Md.App. 351, 483 A.2d 88, 92 (Md.Ct. of Spec.App.1984) (sale of pumping station equipment by manufacturer to general contractor governed by U.C.C.); Maryland Supreme Corp. v. The Blake Co., 279 Md. 531, 369 A.2d 1017, 1023 (1977) (sale of pre-mixed cement for use at construction site governed by U.C.C.). See also J.B. Moore Electrical Contractor, Inc. v. Westinghouse Supply Co., 221 Va. 745, 273 S.E.2d 553, 556 (1981) (applying U.C.C. to sale of electrical supply equipment to electrical contractor).
[9] Defendant objected to the admission of usage of trade evidence under the U.C.C., D.C.Code § 28:1-205(6), which bars the use of usage of trade testimony if such use would cause unfair surprise to the other party. The Court finds it unnecessary to respond to defendant's objection in light of its conclusion that it is not the "usage of trade" in the electrical supply business to treat a price quote such as this as an offer.
[10] Kogod would characterize a manufacturer's response to a purchase order as "home office acknowledgement" rather than approval or acceptance. He testified that home office "acknowledgement" simply reconfirmed the terms of the sale. (Tr. pp. 61-67). In light of the testimony by McGiffin and Dinsmore on this issue, and in light of the fact that Maurice Electric was in receipt of a printed "Order Acceptance" form from Skyline on another order brokered by Potomac (Def's Exh. C), the Court simply does not find credible Kogod's testimony that he had never heard of home office acceptance in his 35 years in the business (Tr. p. 65).
[11] Plaintiff argues that the absence of key terms such as time and place of delivery do not negate the existence of a contract under the U.C.C. See, e.g., D.C.Code §§ 28:2-207, 2-308, 2-309. Plaintiff's argument fails on two grounds. First, the sections of the Code cited by plaintiff presume the existence of a contract, but with certain terms missing. Here, the issue is whether defendant even made an offer. Lack of specific terms accompanying a price quote evidence defendant's lack of intent to be bound, thereby negating any inference that the price quote was intended to be an offer. Second, except for output or requirements contracts, the U.C.C. does not accommodate contracts lacking terms of quantity.
[12] The Janke court, in discussing estoppel, does at several points refer to the price quote as an "offer." See 386 F.Supp. at 695. However, because of the court's statement elsewhere that the price quote could not be the basis of contractual acceptance, this Court reads the opinion as using the word "offer" interchangeably with the word "promise."
[13] There is no evidence in the record to support a finding that Potomac, as agent for Skyline, took any action that could be deemed acceptance on behalf of its principal. Even had it done so, the Court finds Potomac lacked either the actual or apparent authority to enter into contracts on behalf of Skyline. See Management Partnership, Inc. v. Crumlin, 423 A.2d 939, 941 (D.C.App.1980). The Manufacturers Representative Agreement, ¶ 5, clearly denies Potomac actual authority to bind the principal. See supra, note 6. Apparent authority may be premised on a finding that the principal has placed the agent in such a position as to mislead a third party into believing the agent is clothed with authority which in fact he does not possess. Jack Pry, Inc. v. Drazin, 173 A.2d 222, 223 (D.C.Mun.App.1961). Apparent authority is a question of fact, and the burden of proof is on the party asserting the agent's authority. Edmund J. Flynn Co. v. LaVay, 431 A.2d 543, 548 (D.C.App.1981); Management Partnership, supra, 423 A.2d at 941, and cases cited therein. To support a finding of apparent authority, "it is essential that the principal have put the agent in a position where the power exercised would normally be within the reasonable scope of authority." Id. Among the factors to be considered are the usual or normal conduct of the agent in performing his duties; previous dealings between the agent and the party asserting the agent's authority; any declarations or representations made by the agent; and the customary practices of other agents in the same field. Id.
No officer or employee of Skyline had any direct communication with anyone at Maurice Electric concerning Potomac's authority to contract on behalf of Skyline. Furthermore, as discussed above, it was the normal or usual practice of Potomac, whether dealing with Skyline or other manufacturers, to obtain home office approval of any deal before a sale was final. The Court has already concluded that officials at Maurice Electric had reason to know of Skyline's home office acceptance requirement. The testimony of Dinsmore indicates that it was not customary for manufacturer's agents in this field to have authority to contract for the manufacturers. (Tr. p. 216). Dinsmore further stated that he had been calling on Kogod for years, and that officials at Maurice Electric understood that all the manufacturers he represented had home office acceptance policies. (Tr. p. 220). Kogod also testified that he had never discussed with anyone at Potomac the scope of Potomac's authority to enter into contracts or otherwise bind the manufacturers represented by Potomac. (Tr. pp. 68-69). Thus, none of the factors identified in Management Partnership point to a finding of apparent authority to contract.
In sum, the key to apparent authority is whether the principal (in this case, Skyline) acted in some way that permitted the agent (Potomac) to mislead Maurice Electric as to the authority of Potomac to bind Skyline. See Feltman v. Sarbov, 366 A.2d 137, 140 (D.C.App. 1976) (citations omitted). While Skyline may have had the authority to transmit price quotes and acceptance forms, there is no evidence to support a finding that Potomac was clothed with apparent authority to enter into contracts for Skyline.
[14] While a party may reasonably rely on an unusually low price quote if it reconfirms the price quote prior to reliance, here the Court found plaintiff did not reconfirm the price quote prior to bidding on the resale contract. See supra, Part II, Findings of Fact, and note 3.
[15] In light of the Court's conclusion that no contract was formed, it is unnecessary to consider defendant's Statute of Frauds defense. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260863/ | 632 F. Supp. 1019 (1986)
UNITED STATES of America
v.
Anthony Frank GAGGI, a/k/a "Nino"; Joseph Carmine Testa, Jr., a/k/a "Joey"; Patrick Testa, a/k/a "Patty"; Henry Borelli; Peter La Froscia; Anthony Michael Senter; Ronald Ustica, a/k/a "Ronnie"; Judith May Hellman; Wayne Hellman; Sol Hellman; Paul Dordal, a/k/a "Paulie Pinto"; Richard Mastrangelo, a/k/a "Richie"; Ronald Turekian, a/k/a "Bulldog"; Herman Weisberger, a/k/a "Hymie"; Edward John Rendini, a/k/a "Fast Eddie"; Joseph Guglielmo, a/k/a "Old Man Joe"; Douglas Rega; Pedro Luis Rodriguez, a/k/a "Pedro Paz"; Gus Kalevas; Salvatore Mangialino; Carlo Profeta, a/k/a "Carlos" and "Carmello"; Dennis Testa and Abdullah Mohammad Hassan Hussain, a/k/a "The Arab", Defendants.
No. SSS 84 Cr. 0063 (KTD).
United States District Court, S.D. New York.
March 10, 1986.
*1020 Rudolph W. Giuliani, U.S. Atty. for the S.D. of N.Y., New York City (Walter S. Mack, Jr., Mary Lee Warren, Michael Kellogg, Asst. U.S. Attys., of counsel), for the U.S.A.
Michael Rosen, New York City, for defendant Anthony Gaggi.
Lipsitz, Green, Fahringer, Roll, Shuller & James, New York City (Herald Price Fahringer, of counsel), for defendant Joseph Testa.
Robert L. Ellis, New York City, for defendant Henry Borelli.
Joel Winograd, New York City, for defendant Peter LaFroscia.
Benjamin Brafman, New York City, for defendant Anthony Senter.
Hochheiser & Aronson, New York City (Lawrence Hochheiser, of counsel), for defendant Ronald Ustica.
Slotnick & Cutler, New York City (John Jacobs, of counsel), for defendant Richard Mastrangelo.
David S. Greenfield, New York City, for defendant Ronald Turekian.
Zerin & Cooper, New York City (Jay M. Zerin, of counsel), for defendant Edward Rendini.
OPINION
KEVIN THOMAS DUFFY, District Judge:
On December 16, 1985, at approximately 5:30 p.m., Paul Castellano and Thomas Bilotti were shot and killed by three assailants while exiting a car in front of Sparks Steak House on 46th Street between Second and Third Avenues. A tremendous amount of publicity immediately followed concerning this incident. Since September 30, 1985, Castellano and nine others had been on trial before me on charges that, inter alia, they were all members of a car theft conspiracy. As a result of the enormous publicity generated by Castellano's death, the attorneys for the remaining defendants moved for a mistrial. On January 8, 1986, that motion was denied.[1] I shall now set forth my reasons for that denial as well as the subsequent denials of numerous mistrial motions made after January 8, 1986.[2]
On December 17, 1985, the day after Castellano was killed, I conducted a separate voir dire of each juror. They were asked a number of questions regarding what, if anything, they had heard or seen about Castellano's death and whether they believed they could still be fair and impartial as to the remaining defendants. All of the jurors knew of Castellano's death and basically how it came about. Approximately *1021 six of the jurors also had heard something to the effect that Castellano had been the head of organized crime. Without exception, however, none of the jurors had heard anything about the remaining nine defendants or about the trial, other than the fact that Castellano had been a defendant in it. The jurors all stated that they would still be able to decide the case fairly and impartially and that what they had learned about Castellano would in no way affect their ability to judge the other defendants.
Following the voir dire, I requested defense counsel to gather together the transcripts of the T.V. and radio broadcasts that some of the jurors had indicated they had seen or heard. Defense counsel informed me that it would take at least a few days to get this material to me. Accordingly, as it had always been my intention to suspend the trial over Christmas and New Year's weeks, I adjourned all proceedings until January 6, 1986 at which time I heard arguments on the mistrial motion. In the interim, there were numerous newspaper articles and T.V. and radio reports regarding Castellano's murder. This publicity included details about the killings and speculation about Castellano's background and the cause and possible ramifications of his death. The publicity surrounding Castellano's death did not abate for quite a few days, in part due to the fact that certain law enforcement personnel considered it appropriate to be highly visible and conduct numerous interviews wherein they discussed their various theories for Castellano's death, and also because the media reported that the Archdiocese of New York denied a Mass of Christian Burial for Castellano.
At oral argument on January 6, 1986, defense counsel highlighted the following areas of publicity which they considered to be the most prejudicial: (1) references to Castellano's position as the alleged leader of the Mafia; (2) references to the fact that the defendants in the instant case are to be tried on many other charges in later trials;[3] (3) discussions regarding the costs of organized crime to the community; (4) coverage of the fact that the Catholic Church, through Cardinal John J. O'Connor, assertedly denied a Mass of Christian Burial for Castellano;[4] (5) allusions to other defendants on trial;[5] (6) references to electronic surveillance in Castellano's home; and (7) suggestions that Castellano may have been killed because it was feared that he was about to become an informant or that he was going to be found guilty in this trial. As I stated at the January 6, 1986 hearing, *1022 this publicity was clearly harmful. However, that there has been prejudicial publicity regarding an ongoing criminal trial is not the determinative factor when considering whether to declare a mistrial. Rather, it is only the first element of a multi-step procedure that a district judge must follow when deciding a mistrial motion.
In United States v. Lord, 565 F.2d 831, 838 (2d Cir.1977), the Second Circuit set forth "[t]he guidelines to be followed by a district court confronted with the problem of publication or broadcast of information concerning an ongoing criminal trial ...." The procedure is as follows:
First, the court must decide whether the publicity contains potentially prejudicial information, and whether the members of the jury might have been exposed to it. If the broadcast or article contains no information beyond the evidence in the case, or if the information is clearly innocuous or the possibility of the jury's exposure to it is remote, further inquiry may not be necessary. If however, the court determines that the article or broadcast has a potential for unfair prejudice, then an initial inquiry of the jury is necessary to ascertain whether any of its members have been exposed to the information. Any juror who responds that he or she has been so exposed should be examined individually, out of the presence of the other jurors, to determine the extent of the exposure and its effect on the juror's attitude toward the trial.
United States v. Lord, 565 F.2d at 838-39 (footnote omitted). The court went on to explain that "[t]his precautionary procedure should permit the court to determine what further steps, if any, are required to insure that the trial proceeds fairly." Id. at 839.
Given my conclusion that the publicity disseminated throughout the community over the three week period following Castellano's murder had "a potential for unfair prejudice," it was incumbent upon me to conduct another voir dire of the jurors. Because of the pervasive nature of the publicity, I decided to proceed under the assumption that the jurors would be unable to avoid the publicity at least to some extent. Thus, I chose to start immediately with a separate voir dire of each juror "to determine the extent of the exposure and its effect on the juror's attitude toward the trial."
The voir dire of the individual jurors lasted the entire day on January 7, 1986. I found the jurors to be sincere and candid in their responses to detailed questions regarding what they had seen or heard since Castellano's death and what their present impressions were as to the remaining defendants. The jurors exhibited a conscientious desire to avoid the publicity regarding this case and an insightful understanding of the irrelevance of any publicity that they were exposed to. Not one juror heard or saw anything that gave him or her the impression that the remaining nine defendants were involved in organized crime. In fact, no one heard or saw anything at all about the remaining nine defendants or the trial. Although many of the jurors stated that they did hear something about the Cardinal denying Castellano a public mass, interestingly most volunteered that they disagreed with the Cardinal's action and all affirmed that it would have absolutely no effect on their ability to give the remaining defendants a fair trial. Many of the jurors indicated that they remembered one or more of the theories being suggested for why Castellano was murdered. However, without exception, all of the jurors were unequivocal in their belief that their judgment had not been affected by Castellano's death and the ensuing publicity and that they remained fair and impartial and could decide this case solely on the evidence presented at trial.
Defendants relied heavily on United States v. Rattenni, 480 F.2d 195 (2d Cir. 1973), in support of their mistrial motion. However, that case is easily distinguishable from the present one. In Rattenni, after the jury reached a guilty verdict against Nicholas Rattenni on the conspiracy count of the indictment, but before they reached *1023 a verdict regarding any of the remaining defendants and charges, certain members of the jury heard a radio broadcast that referred to Rattenni's prior conviction. During a voir dire conducted by the trial judge in which the jurors were asked about the radio broadcast, one juror, Mrs. Metz, "readily admitted her prejudice against Rattenni on the remaining open charges against him as well as on all of the charges against his codefendants." Rattenni, 480 F.2d at 196. Mrs. Metz also informed the judge that, prior to the guilty verdict against Rattenni on the conspiracy charge, she had read an article in the New York Daily News about Rattenni. This article also referred to Rattenni's conviction on a prior indictment. "[T]he trial judge never asked [Mrs. Metz] explicitly whether she had been prejudiced by the Daily News story," Rattenni, 480 F.2d at 197, but rather simply declared a mistrial as to all of the open charges and refused to set aside the guilty verdict as to Rattenni on the conspiracy count. The Second Circuit held that a retrial of the conspiracy count was necessary essentially because Mrs. Metz "was never asked if the article biased her and made no such disclaimer sua sponte" and, in fact, the logical inference was that she had been prejudiced before the verdict against Rattenni had been rendered. Rattenni, 480 F.2d at 198. Thus, unlike the instant case where a complete and detailed voir dire was conducted[6] and each juror stated positively that he or she had not been prejudiced and could remain fair and unbiased, Rattenni involved a situation where a juror admitted she would be prejudiced in all future deliberations and, though not explicitly questioned on the subject, where, in all likelihood, she had been prejudiced in her prior deliberations.
Similarly, the other cases cited by defendants are also unpersuasive. Generally, these cases involved either acts of juror misconduct, see United States v. Delaney, 732 F.2d 639, 641 (8th Cir.1984); United States v. Hillard, 701 F.2d 1052, 1063 (2d Cir.), cert. denied, 461 U.S. 958, 103 S. Ct. 2431, 77 L. Ed. 2d 1318 (1983), or juror exposure to publicity "that was probative of guilt and highly prejudicial," United States v. Williams, 568 F.2d 464, 470-71 (5th Cir. 1978); see also Marshall v. United States, 360 U.S. 310, 311-12, 79 S. Ct. 1171, 1172-73, 3 L. Ed. 2d 1250 (1959). In the present case there was no juror misconduct and the publicity the jurors were exposed to was collateral in nature.
Although the publicity which surrounded this trial is unfortunate and the cause of the surge in publicity in mid-December tragic, a mistrial is not the appropriate solution as long as the jurors can remain fair. The Supreme Court has stated:
due process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable. The safeguards of juror impartiality, such as voir dire and protective instructions from the trial judge, are not infallible; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.
Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 946, 71 L. Ed. 2d 78 (1982). I denied defendants' mistrial motion on January 8, 1986 because I found the jurors in this case to be sincere in their proclamations that their impartiality had been unaffected by the publicity and because I adhered to the Supreme Court's observation that "[o]ne may not know or altogether understand the imponderables which cause one to think what he thinks, but surely one who is trying as an honest man to live up *1024 to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter." Dennis v. United States, 339 U.S. 162, 171, 70 S. Ct. 519, 523, 94 L. Ed. 734 (1950), quoted in Smith v. Phillips, 455 U.S. at 217 n. 7, 102 S. Ct. at 946 n. 7.
After the January 8, 1986 denial of defense counsel's mistrial motion, the publicity regarding this case was minimal through to the time the jury began deliberations on February 13, 1986. On February 17, 1986, however, while the jury was still deliberating, there were radio reports and newspaper articles detailing the circumstances of the apparent suicide of Frederick DiNome, one of the government's major witnesses during the trial. That same day, I conducted a general inquiry of the jury to determine whether they had been exposed to this publicity to which they indicated that they had not. I went on to emphasize to the jury, as I had done repeatedly throughout the trial, that they were "to avoid at all costs newspapers and radio programs." Tr. 7306.
Thereafter, over the next few days, there were additional articles in the local newspapers regarding DiNome's death. During this time, at the jury's request, the jury was deliberating an average of twelve hours a day, from 10:00 a.m. to 10:00 p.m. They were, without question, one of the most responsible and conscientious groups of people I have ever encountered. Throughout the remainder of their deliberations, I reminded the jury again and again of the importance of avoiding the news in any form. On a number of occasions defense counsel requested that because of the publicity about DiNome I declare a mistrial or conduct an individual voir dire of the jurors. I denied these requests, however, because the jurors had already sufficiently demonstrated their steadfast allegiance to the court and its instructions. I concluded that subjecting the jurors to the "third degree" in the midst of their deliberations was unwarranted and, if anything, would simply fuel speculation that something significant relating to the case had happened and thus only serve to distract the jurors from the arduous task already before them.
Perhaps the most significant evidence that the jury had not been affected by any of the publicity generated during the trial was the jury's verdict and the length of its deliberations. The verdict ran the gamut from fifty-eight findings of guilty to ninety findings of not guilty to being deadlocked on two defendants on one count. The jury deliberated from February 13 through March 5, 1986 and sent out fifty-six notes asking for many hours of testimony to be read back, exhibits, stipulations, and rereadings of the jury charge. After the trial was over, members of the jury were heard to say, inter alia, that Castellano's death and anything they had heard regarding Castellano did not enter into their deliberations at all and that the defendants could not have had a more fair jury. Although, of course, I cannot personally verify the former statement, as to the latter, to my view, there can be no doubt.
In sum, for the reasons set forth above, all of defendants' applications for a mistrial due to prejudicial publicity were denied.
SO ORDERED.
NOTES
[1] Desiring to avoid any further publicity in this case, I withheld publication of this opinion until after the completion of the trial.
[2] Although the publicity regarding this case decreased substantially after the January 8, 1986, decision was announced, when there were newspaper articles or radio reports that defense counsel perceived as potentially prejudicial to their clients mistrial motions and requests for an individual voir dire of the jurors were made.
[3] The indictment in this case originally charged 24 defendants with 78 counts including eleven separate substantive conspiracy counts. In addition to the automobile related offenses which were the subject of this first trial, there are narcotics, extortion, prostitution, firearms, civil rights, and RICO offenses charged in the indictment. Because I did not consider it possible for me to give all of the defendants a fair trial with such an indictment, I divided the case into a number of areas with the first trial involving the automobile related charges. Trials on the remaining charges will now follow.
[4] The initial reports in the media carried the story as set out in the text above. However, in Cardinal O'Connor's column in Catholic New York, there appeared the following:
Question: Why did you refuse to permit Mr. Castellano to be buried in a Catholic cemetery?
Answer: I did not refuse burial in a Catholic cemetery. The family of Mr. Castellano asked that he be buried in Moravian Cemetery on Staten Island. That's where he was buried. I authorized and requested that a Catholic priest be present at the graveside with the family, to say the prayers and to bless the grave. Hundreds of Catholics are buried in Moravian Cemetery by choice.
Question: Why did you forbid a Mass for Mr. Castellano?
Answer: I did not forbid a Mass. I forbade only the presence of the body. I asked Bishop Ahern, my Episcopal Vicar for Staten Island, to offer Mass with the family present, in his own church on Staten Island, following the funeral. Thus what could have been a public spectacle was avoided, and in my judgment, a considerable amount of scandal was also avoided.
O'Connor, The Castellano Case, Catholic New York, Jan. 2, 1986, at 5.
[5] Anthony Gaggi was mentioned as an alleged "capo" or "captain" and the "only defendant of alleged rank" remaining in the trial. It was also noted that Richard Mastrangelo, Peter LaFroscia, and Edward Rendini are incarcerated.
[6] The voir dire consisted of questions suggested by defense counsel as well as my own questions, some of which were modeled after those asked by Judge Dooling in United States v. Persico. See United States v. Persico, 425 F.2d 1375, 1380-81 n. 8 (2d Cir.), cert. denied, 400 U.S. 869, 91 S. Ct. 102, 27 L. Ed. 2d 108 (1970). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318767/ | 212 Ga. 637 (1956)
94 S.E.2d 744
TAYLOR
v.
TAYLOR.
19365.
Supreme Court of Georgia.
Submitted May 16, 1956.
Decided September 7, 1956.
Rehearing Denied October 11, 1956.
Matthews & McClelland, for plaintiff in error.
Douglas C. Lauderdale, Jr., Osgood O. Williams, contra.
MOBLEY, Justice.
On July 8, 1954, Fred Taylor brought his petition for divorce against Margery Badger Taylor. The parties were married in April, 1949. On August 26, 1954, the defendant filed an answer and cross-action, which she twice amended, praying that she be awarded a divorce and permanent alimony. On December 8, 1955, a jury returned a verdict awarding the defendant a divorce and permanent alimony. In due course, the plaintiff filed a petition to modify and set aside the verdict and judgment, to which petition the defendant filed general and special demurrers. The trial court passed an order sustaining some of the demurrers and overruling others, and thereafter sustained the motion to modify and set aside the verdict and judgment and granted the plaintiff a new trial. To the judgments overruling her demurrers and sustaining the motion to modify and set aside and granting the plaintiff a new trial, the defendant excepts. Held:
1. Paragraph 8 of the plaintiff's petition to modify and set aside the verdict and judgment alleges that the judgment does not follow the verdict, in that the jury awarded to Mrs. Taylor the equity in the house and lot located at 750 E. Paces Ferry Road. while the judgment awarded her, in addition thereto, lots 28 and 29 of block E. in the Peachtree Highland subdivision, it being contended that said lots 28 and 29 are not a part of the house and lot known as 750 E. Paces Ferry Road. In her amended answer and cross-action, Mrs. Taylor prayed that she be awarded possession and fee-simple title to the real estate located at 750 E. Paces Ferry Road together with all vacant land appurtenant thereto, said real estate being located in land lot 46 of the 17th district of Fulton County. That part of the verdict was. "We the jury grant the equity in house *638 & lot locate at 750 E. Paces Rd., Atlanta, Ga.," to Mrs. Taylor. A judgment must conform to the verdict (Code § 110-301); and likewise it must follow the true meaning and intent of the finding of the jury. Manget-Brannon Co. v. White Crown Fruit Jar Co., 20 Ga. App. 339 (93 S. E. 307). "Verdicts shall have a reasonable intendment, and shall receive a reasonable construction, and shall not be avoided unless from necessity." Code § 110-105. In determining whether a judgment conforms to the verdict, the judgment must be construed with reference to the pleadings and the evidence. Stanfield v. Downing Co., 186 Ga. 568 (199 S. E. 113); Bentley v. Still, 198 Ga. 743 (32 S. E. 2d 814); Powell v. Moore, 202 Ga. 62, 66 (42 S. E. 2d 110). The pleadings do not allege and the evidence does not show that the plaintiff owned any vacant property appurtenant to the residence located at 750 E. Paces Ferry Road. Therefore, following the above-cited rules for the construction of verdicts, in the absence of pleadings or evidence showing the plaintiff to be the owner of vacant property appurtenant to 750 E. Paces Ferry Road, it could not be said that in awarding the defendant the equity in the house and lot located at 750 E. Paces Ferry Road the jury intended to award any vacant property appurtenant thereto to the defendant. The judgment identifies lot 25, block B of the Peachtree Park Subdivision, located in land lot 46 of the 17th district of Fulton County, Georgia, as being improved property known as 750 E. Paces Ferry Road, and this part of the judgment conforms to the verdict of the jury. On the other hand, there is nothing to identify lots 28 and 29 of block E of the Peachtree Highland Subdivision, located in lot 46 of the 17th district of Fulton County. Georgia, as being a part of or contiguous to or in any way connected with the improved property at 750 E. Paces Ferry Road, and accordingly this part of the judgment does not conform to the verdict and is contrary to the law and the evidence. Since the judgment did not follow the verdict, the petition to modify and set aside set out a cause of action and was not subject to general demurrer. The judgment of the trial court, overruling the general demurrer, was not error.
2. "The first grant of a new trial shall not be disturbed by the appellate court, unless the plaintiff in error shall show that the judge abused his discretion in granting it, and that the law and facts require the verdict notwithstanding the judgment of the presiding judge." Code (Ann.) § 6-1608, and cases cited thereunder. We are dealing here with the first grant of a new trial by the trial judge, and if Code (Ann.) § 6-1608 is applicable to the first grant of a new trial upon a petition to modify and set aside a verdict and judgment for divorce and alimony, as provided for in Code (Ann.) § 30-101, the judgment of the trial judge will not be disturbed by this court, as the law and facts do not require the verdict in favor of the defendant, and no abuse of his discretion is shown.
It has been definitely settled by this court in several decisions (Stebbins v. Stebbins, 206 Ga. 529, 57 S. E. 2d 564; Champion v. Champion, 207 Ga. 431, 61 S. E. 2d 822; Neal v. Neal, 209 Ga. 199, 71 S. E. 2d 229; Branch v. Branch, 211 Ga. 22, 83 S. E. 2d 601; Bedingfield, v. Bedingfield, 211 Ga. 310, 85 S. E. 2d 756; Palmer v. Palmer, 211 Ga. 372, 86 S. E. 2d 97), that a petition to modify and set aside is the only available remedy to attack a verdict and judgment granting a divorce and alimony. *639 A motion for new trial is not an available remedy except that the judgment upon a petition to modify and set aside may be excepted to in a motion for new trial. Huguley v. Huguley, 204 Ga. 692 (51 S. E. 2d 445). In Allison v. Allison, 204 Ga. 202, 204 (48 S. E. 2d 723), it was stated: "It thus appears that at the time of the approval of the act of 1946 [Ga. L. 1946, p. 90; Code, Ann., § 30-101], it was the established law of this State that a motion to set aside a verdict in a divorce case was the equivalent of a motion for new trial and must meet the requirements of a motion for new trial in substance and form." The petition to modify and set aside has been substituted for a motion for new trial as a means of obtaining a new trial in cases granting divorce and alimony, and such a petition is the equivalent of a motion for new trial.
In Huguley v. Huguley, supra, this court, in discussing the act of 1946, supra, aptly pointed out that said act makes no attempt to prescribe the form of the application to set aside and modify or the procedure to obtain a review of a judgment thereon. Likewise, while the act provides that the petition must be based upon good and sufficient grounds, nothing is stated as to what are good and sufficient grounds. Since the legislature provided the motion to modify and set aside as a substitute for a motion for new trial in these cases, but did not define what is meant by "good and sufficient grounds," the only conclusion this court can draw is that the legislature intended that the grounds upon which motions for new trial may be granted constitute "good and sufficient grounds" to modify and set aside a verdict and judgment for divorce and alimony. If we reached any other conclusion, we would be attempting to read into the act of 1946 something which the legislature itself did not include therein. Code (Ann.) § 30-130 provides that "New trials may be granted in divorce suits as in other cases," and we will not disturb the first grant of a new trial upon a petition to modify and set aside unless the court abused his discretion and the law and facts required the verdict of the jury, notwithstanding the judgment of the trial court. Code § 6-1608. The statement of this court in Glosson v. Glosson, 211 Ga. 878, 879 (89 S. E. 2d 516), to the effect that, in passing upon a motion to modify and set aside, the trial judge can not exercise the broad discretion he has in passing upon motions for new trial, is obiter dictum, as the court held that the petition failed to set forth good and sufficient grounds for the modification or setting aside of the judgment, and should have been dismissed on general demurrer. That being true, the question of the exercise of discretion by the trial judge was not reached in that case.
After a careful review of the record in this case, we are of the opinion that the grant of the new trial in this case was not an abuse of the discretion of the trial court, and the judgment is
Affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318787/ | 677 S.E.2d 71 (2009)
CARTER
v.
The STATE (Two Cases).
Nos. S09A0233, S09A0234.
Supreme Court of Georgia.
April 28, 2009.
Reconsideration Denied May 18, 2009.
*73 Jeffrey L. Grube, Centerville, for appellant (case no. S09A0233).
William M. Peterson, Warner Robins, for appellant (case no. S09A0234).
Kelly R. Burke, Dist. Atty., Timothy M. Marlow, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Sara K. Sahni, Asst. Atty. Gen., for appellee.
THOMPSON, Justice.
Appellants Valerie Johnson Carter and James Carter were jointly indicted, tried, and convicted for felony murder, with the underlying felony of distribution of oxycodone, in connection with the death of Debra Coley.[1] Because appellants raise similar issues on appeal, their cases have been consolidated. After reviewing the records on appeal, in both cases we affirm in part and vacate in part and remand to the trial court for resentencing.
1. Appellants challenge the sufficiency of the evidence to support the conclusion that distribution of oxycodone was a dangerous felony which caused the victim's death. We find the evidence adduced supports the finding that appellants' distribution of oxycodone, under the facts of this case, was a dangerous felony, and that appellants directly caused the victim's death in the commission of this felony. See Hulme v. State, 273 Ga. 676, 678, 544 S.E.2d 138 (2001). We also conclude that the evidence was sufficient to authorize the jury to find appellants guilty of the other charged crimes beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
The evidence authorized the jury to find that in the early morning hours of March 13, 2005, appellants went to the home of the victim, who they knew to have a drug and alcohol problem and to have been in at least one drug treatment facility in the past. Appellants had spoken with the victim on the day of the crimes and knew that she had been drinking and taking unknown quantities of prescription drugs. When they arrived at her home, they described the victim as "messed up," with slurred speech and a lack of motor control. Nevertheless, appellants gave the victim, who was sitting in their truck, an intravenous injection of oxycodone causing the victim to "pass out." James Carter removed the needle from the victim's arm and appellants pulled the victim out of the truck and left her lying in her front yard. They then sped away, breaking up the needle and throwing it out the truck window. James Carter admitted to police that he may *74 have been the one to kill the victim, but insisted that he "didn't mean to."
The medical examiner determined that the cause of death was multiple drug intoxication with a toxic level of oxycodone in the victim's body producing a fatal effect. Toxicology reports established that at the time of her death the victim had a blood alcohol level of.198 and she had present in her blood system.48 milligrams per liter of diazepam, .39 milligrams per liter of nordiazepam, and .55 milligrams per liter of oxycodone. A forensic toxicologist testified that the diazepam and nordiazepam were not at dangerous levels but the oxycodone was "well into the accepted toxic range." Police discovered an empty prescription bottle of oxycodone in Valerie Carter's name while searching appellants' home after their arrest. The prescription for 45 pills, which were unaccounted for, had been filled two weeks prior to the victim's death. Police also found the top to a syringe and a tourniquet in appellants' truck.
"[I]n Georgia, a defendant may be convicted of felony murder based on the underlying felony of distributing a controlled substance if that felony is inherently dangerous under the foregoing standards, and if the defendant directly causes the death of the victim while in the commission of the felony." Hulme, supra at 678, 544 S.E.2d 138. Because the evidence in this case establishes that appellants knew the victim had been drinking and taking narcotics to the extent she already was in a significantly altered state when they gave her the intravenous oxycodone injection, and that appellants provided the oxycodone injection which directly caused the victim's death, we conclude that the circumstances under which they committed the felony of distribution of oxycodone was a dangerous felony resulting in the victim's death within the meaning of the felony murder statute.
2. Appellants contend the trial court erred by denying their motions to sever their trials and that violations of their Sixth Amendment confrontation right occurred as a result. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).[2] In denying their motions, the trial court recognized that neither appellant implicated the other in their statements to police and thus, the admission of their statements at trial did not constitute a Bruton violation. "For the admission of a co-defendant's statements to constitute a Bruton violation ... the statements standing alone must clearly inculpate the defendant." (Citations and punctuation omitted.) Thomas v. State, 268 Ga. 135, 137(6), 485 S.E.2d 783 (1997). Appellants' statements separately admitting their presence at the victim's home did not inculpate the other, and James Carter's admission that he supplied the oxycodone did not inculpate Valerie Carter. It follows that the trial court did not abuse its discretion in denying the motions to sever on Bruton grounds. Metz v. State, 284 Ga. 614(2)(a), 669 S.E.2d 121 (2008); Moss v. State, 275 Ga. 96, 98(2), 561 S.E.2d 382 (2002).
3. The trial court did not err by denying appellants' requests for funds to hire an independent forensic toxicologist. In order to obtain funds to hire a scientific expert, an indigent defendant must disclose to the trial court, with a reasonable degree of precision, why certain evidence is critical, what type of scientific testimony is needed, what that expert proposes to do regarding the evidence, and the anticipated costs for services. Roseboro v. State, 258 Ga. 39(3)(d), 365 S.E.2d 115 (1988). The decision whether to grant or deny a motion for the appointment of an expert rests within the trial court's sound discretion, and the trial court's decision will be upheld in the absence of an abuse of discretion. Crawford v. State, 267 Ga. 881(2), 485 S.E.2d 461 (1997).
After reviewing appellants' motions for funds and conducting an ex parte hearing, the trial court granted their requests for funds to hire a forensic pathologist but reserved *75 ruling on their requests for funds to hire an independent toxicologist because they had not demonstrated why their pathologist could not rely on the State's toxicology report in reaching his conclusion as to the cause of death. At no subsequent time did appellants present additional evidence to the court in support of their previously filed motions and they at no time renewed their motion for funds. In this circumstance, even assuming the alleged error has been preserved for appellate review, we find appellants failed to provide sufficient information necessary for the trial court to fully consider their requests. See Finn v. State, 274 Ga. 675(2), 558 S.E.2d 717 (2002). Accordingly, we find no abuse of discretion.
4. Appellants contend the trial court erred by denying their motions to suppress statements they made during interviews with police. They argue that they were in police custody during the interviews and should have been advised of their rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
A person is considered to be in custody and Miranda warnings are required when a person is (1) formally arrested or (2) restrained to the degree associated with a formal arrest. Unless a reasonable person in the suspect's situation would perceive that he was in custody, Miranda warnings are not necessary.
(Punctuation omitted.) Sewell v. State, 283 Ga. 558, 560-561(2), 662 S.E.2d 537 (2008). The record here shows that investigators received information that on the night of the crimes appellants had been at the victim's home. An investigator called appellants and asked if they would come to the Jones County Sheriff's Department for an interview. Appellants agreed, but when they had not arrived after an hour, the investigator called again and asked if they needed a ride. James Carter told the investigator they were south of Warner Robins because a friend had died, and arrangements were made for appellants to go to the Houston County Sheriff's Office because it was closer to their location. Appellants arrived at the station first, waiting in the parking lot until Jones County investigators arrived. Investigators then informed appellants that they were free to leave but invited them into the sheriff's office to talk. Accordingly, the evidence showed that appellants were not under formal arrest at any time during their interviews and were told by investigators prior to the interviews that they were free to leave. We conclude that the trial court did not err when it determined that a reasonable person in appellants' situation would not have felt so restrained as to equate to a formal arrest. See Quedens v. State, 280 Ga. 355(2), 629 S.E.2d 197 (2006).
5. Valerie Carter further asserts her statement was involuntary because she was drunk, intoxicated or seriously impaired by alcohol or narcotics at the time of the interview. During her interview, Valerie Carter admitted that she took two Xanax before coming to the sheriff's office because she was nervous but told investigators that she had not taken any oxycodone in the previous two days. Appellant presented no other evidence of intoxication at the motion to suppress hearing or when she raised this objection for the first time at trial. Investigators who conducted the interview testified that Valerie Carter did not appear to be under the influence of drugs or alcohol during the interview and that she was able to communicate with them in a lucid and coherent manner. The trial court overruled the objection and her recorded statement was played for the jury. Because the trial court's findings as to the voluntariness of the statement are supported by the evidence, we find no error in its admission at trial. See Shelby v. State, 265 Ga. 118(2), 453 S.E.2d 21 (1995).
6. On the evening before trial, appellants notified the State of their intent to call Karen Brown as a witness to testify to both a hearsay statement purportedly made by the victim days before her death and a prior inconsistent statement of a prosecution witness. The State objected on the ground that appellants did not comply with proper discovery procedures. See OCGA § 17-16-8(a). The trial court sustained the State's objection although it made no findings as to appellants' bad faith in failing to timely identify the witness. Appellants assert on appeal that the court erred in excluding Brown's testimony.
*76 We find the exclusion of Brown's testimony was harmless error, if error at all, in light of the overwhelming evidence of appellants' guilt and conclude it highly probable that the exclusion of this evidence did not contribute to the jury's verdict. Laney v. State, 271 Ga. 194(8), 515 S.E.2d 610 (1999).
7. Valerie Carter contends that the trial court erred by denying her motion for a continuance so that she could have more time to investigate her case, and more specifically, to review the autopsy report and obtain hospital and emergency reports. "Whether to grant a motion for continuance is entirely within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion." (Citation and punctuation omitted.) Davis v. State, 279 Ga. 786, 787(2), 621 S.E.2d 446 (2005). See OCGA § 17-8-22. Here, the charges against Valerie Carter had been pending for more than two years before trial. The record demonstrates that the prosecutor's office maintained an open file policy, thus giving defense counsel early access to both the list of State's witnesses and the autopsy report when it was completed more than ten months prior to trial. Although hospital and EMT reports were not contained within the State's file because they were not deemed important to the prosecution of the case, once these reports were requested by defense counsel, the State asked the hospital to provide the reports to appellants. As Valerie Carter has failed to demonstrate any harm from the denial of her motion for continuance, we find no error.
8. Appellants were convicted of felony murder, with the distribution of oxycodone count as the underlying felony, and possession of oxycodone with the intent to distribute. During sentencing, the trial court determined that the possession convictions were vacated by operation of law because they served as the underlying felony and appellants each were sentenced to life in prison with a concurrent 30-year sentence to serve for their respective distribution convictions. Valerie Carter contends the trial court erred by failing to merge her distribution conviction into the felony murder conviction and the State agrees.
If a defendant is convicted of felony murder as well as the underlying felony, the underlying felony merges into the felony murder conviction. Green v. State, 283 Ga. 126(2), 657 S.E.2d 221 (2008). Here, the distribution conviction was the underlying felony that formed the basis for the felony murder conviction and it, not the separate possession conviction, was vacated by operation of law. Malcolm v. State, 263 Ga. 369, 434 S.E.2d 479 (1993). Accordingly, we vacate Valerie Carter's judgment of conviction and sentence for distribution of oxycodone and remand her case to the trial court for resentencing.
Although James Carter did not challenge his sentence on the distribution conviction on appeal, his conviction and sentence for distribution of oxycodone suffer from the same defect. His judgment of conviction and sentence on the distribution count are, therefore, vacated and the case is remanded to the trial court for resentencing.
Judgments affirmed in part and vacated in part and cases remanded in part in Case Nos. S09A0233 and S09A0234.
All the Justices concur.
NOTES
[1] The crimes occurred on March 13, 2005. Appellants were indicted by a Houston County grand jury on May 30, 2006. The indictment charged each appellant with felony murder, distribution of oxycodone, possession of oxycodone with intent to distribute, and tampering with evidence. On September 13, 2007, James Carter was found guilty of all counts and Valerie Carter was found guilty of all counts except tampering with evidence. They were sentenced that same day to life imprisonment for the felony murder convictions and concurrent 30-year sentences for their distribution convictions. James Carter was sentenced on the tampering charge to an additional three years to run concurrent with his other sentences. Timely motions for new trial were filed and those motions, as amended, were denied on September 11, 2008. Notices of appeal were filed by appellants on September 18, 2008. The appeals were docketed in this Court on October 22, 2008 and submitted for decision on the briefs.
[2] In Bruton, the Court held that a defendant's Sixth Amendment right of confrontation is violated when: (a) co-defendants are tried jointly; (b) one co-defendant's statement is used to implicate the other co-defendant in the crime; and (c) the co-defendant who made the implicating statement employs his Fifth Amendment right not to testify and thus does not take the stand to face cross-examination about the statement. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318793/ | 677 S.E.2d 758 (2009)
DULCIO
v.
The STATE.
No. A09A0673.
Court of Appeals of Georgia.
April 22, 2009.
*759 Mary Erickson, for Appellant.
Penny A. Penn, Dist. Atty., James A. Dunn, Asst. Dist. Atty., for Appellee.
ANDREWS, Presiding Judge.
Kernio Dulcio appeals from the judgment entered after a jury found him guilty of possession with intent to distribute cocaine, possession of marijuana, obstruction of an officer, and tampering with evidence. Dulcio argues that the trial court erred in refusing to grant his motion for mistrial or motion for directed verdict as to the possession of marijuana count and also erred in refusing to give his requested charge on "bare suspicion." After reviewing the record, we conclude there was no error and affirm.
The evidence at trial, taken in the light most favorable to the verdict, was as follows. A confidential informant told officers that he had set up a drug buy with Dulcio on the following day for $1,000 worth of cocaine. Officers recorded a phone call from the informant to Dulcio setting up a meeting at the Waffle House. The officers were waiting at the Waffle House when Dulcio pulled into the parking lot. The confidential informant went out to Dulcio's car and, after talking to Dulcio through the window, signaled to the officers. As the officers approached, they saw Dulcio rip open one of the baggies lying on the seat beside him and start shoving the contents, later shown to be cocaine, into his mouth.
Officers shouted to him to show them his hands, but Dulcio did not respond. Dulcio resisted when officers tried to put handcuffs on him and they were forced to wrestle him to the ground before they could handcuff him.
Dulcio began vomiting up the cocaine he had swallowed and officers took him to a hospital. One officer testified that after being admitted to the emergency room, Dulcio told the doctor that he had eaten cocaine.
In addition to the plastic bag of cocaine that Dulcio tried to swallow, officers found other plastic bags of powder cocaine totaling 6.73 grams. The State also introduced similar transaction evidence of a charge of possession of cocaine with intent to distribute after Dulcio was stopped with 14 individually wrapped rocks of crack cocaine.
Dulcio testified in his own defense. He stated that he was not the person on the phone with the confidential informant; that the person on the phone was his friend James. Dulcio said that James told him he could buy marijuana from someone who would be at the Waffle House. Dulcio said that when he arrived at the Waffle House, a man approached him, got in his car on the passenger's side, and handed him a bag of what looked like marijuana. Dulcio said that the man suddenly got out of the car and as he did so, dropped two clear bags onto the passenger seat. When the officers were coming toward him with their guns drawn, he said that he panicked and "shoved" the contents of one of the baggies into his mouth. Dulcio claimed he did not resist the officers but rather that the officers hit him and choked him until he threw up.
The above evidence was sufficient for the jury to find Dulcio guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
1. Dulcio argues that the trial court erred in denying his motion for mistrial or directed verdict on the possession of marijuana charge. Dulcio points out that the indictment charging him with possession of less than one ounce of marijuana in violation of OCGA § 16-13-30 was returned on September 10, 2007, but the substance was not tested until March 21, 2008, three days before trial.
After counsel objected, the trial court excluded the report because it had not been provided ten days before trial. The trial court also refused to allow the person who tested the marijuana to testify. The trial court did, however, allow the arresting officer to testify. The officer stated that, based on his training and extensive experience, he identified the substance found in Dulcio's console as marijuana. On cross-examination he acknowledged that without testing he could not be 100 percent certain that it was marijuana.
*760 Dulcio argues that the State did not prove the evidence was marijuana beyond a reasonable doubt. We disagree.
It is well established that expert testimony is not necessary to identify a substance, including drugs. And even if police officers are not formally tendered as expert witnesses, if an adequate foundation is laid with respect to their experience and training, their testimony regarding narcotics is properly admitted.
(Punctuation omitted.) Bilow v. State, 262 Ga.App. 850, 851, 586 S.E.2d 675 (2003), citing Atkinson v. State, 243 Ga.App. 570, 572(1), 531 S.E.2d 743 (2000).
Moreover, Dulcio did not argue that the substance was not marijuana, but rather referred to it as marijuana during his testimony.[1] This, together with the officer's testimony was sufficient for the jury to find Dulcio guilty of possession of marijuana beyond a reasonable doubt. See Jones v. State, 268 Ga.App. 246, 249, 601 S.E.2d 763 (2004) (officers' opinion testimony coupled with defendant's referral to substance as marijuana sufficient to sustain conviction).[2]
2. Dulcio claims that the trial court erred in refusing to give his requested charge on "bare suspicion." That charge states: "Facts and circumstances that merely place upon the defendant a grave suspicion of the crime charged or that merely raise a speculation or conjecture of the defendant's guilt are not sufficient to authorize a conviction of the defendant." The court refused to give the charge because it did not believe it was adjusted to the facts of this case.
We agree. As the trial court correctly pointed out, the evidence, as set out above, raised more than a bare suspicion that Dulcio was guilty of the crimes charged. A defendant is not entitled to a charge on bare suspicion where the evidence raises more than a mere suspicion of his guilt. Horne v. State, 260 Ga.App. 640, 643(5), 580 S.E.2d 644 (2003). Furthermore, because the trial court gave complete instructions on reasonable doubt and the presumption of innocence, the charge as a whole covered the principles of law embodied in the "bare suspicion" charge. Jackson v. State, 247 Ga.App. 273, 276(2), 543 S.E.2d 770 (2000).
Judgment affirmed.
MILLER, C.J., and BARNES, J., concur.
NOTES
[1] "I grabbed the marijuana, and I started immediately looking at the quality of it...."
[2] But see Chambers v. State, 260 Ga.App. 48, 51, 579 S.E.2d 71 (2003) (although officers testified that the cigar contained marijuana, a GBI chemist did not test the substance and could not testify beyond a reasonable doubt that substance was marijuana); Adkinson v. State, 236 Ga.App. 270, 271, 511 S.E.2d 527 (1999) (evidence insufficient where detectives testified that they believed the substance was marijuana and a GBI chemist stated that he thought the material was marijuana but could not testify to that beyond a reasonable doubt). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318803/ | 150 Ariz. 317 (1986)
723 P.2d 666
STATE of Arizona, Appellee,
v.
Terry Lynn McCUTCHEON, Appellant.
No. 6626.
Supreme Court of Arizona, In Banc.
July 18, 1986.
*318 Robert K. Corbin, Atty. Gen. by William J. Schafer III and Joseph T. Maziarz, Asst. Attys. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender by James H. Kemper, Deputy County Public Defender, Phoenix, for appellant.
CAMERON, Justice.
Defendant, Terry Lynn McCutcheon, was convicted of armed burglary, A.R.S. § 13-1508, seven counts armed robbery, A.R.S. § 13-1904, and nine counts of kidnapping, A.R.S. § 13-1304. He was sentenced to serve fifteen years on the armed burglary count; life on each armed robbery count; and twenty-one years on each kidnapping count. The sentences are to run concurrently. We have jurisdiction pursuant to art. 6, § 5(3) of the Arizona Constitution and A.R.S. § 13-4031.
We consider only one question on appeal and that is considering the totality of the circumstances, were the comments and questions of the trial judge to the jury so coercive as to require a mistrial?
The facts follow. During the early morning of 1 May 1984, two men armed with guns entered a Phoenix restaurant. The faces of the gunmen were covered by bandanas. They forced the restaurant personnel and patrons to lay on the floor and then robbed them. While the robbery was in progress, a policeman arrived at the restaurant. Apparently, one of the robbers, realizing the police had arrived, attempted to escape by jumping through a glass window. He was immediately arrested. The police identified him as Charles McDonald. Upon searching the restaurant, however, police were unable to locate the other robber.
Later, the police came to suspect defendant who resided with McDonald and McDonald's girlfriend, Shirley Erickson. While waiting outside Erickson's apartment, the police saw someone drive up in Erickson's car. A few minutes later, they saw defendant walk up to the apartment. They then arrested him. In the car, the police found bandanas and items taken in the restaurant robbery.
Defendant and McDonald were tried jointly. While McDonald chose to testify, defendant did not take the stand. After many days of testimony and a trip to the crime scene, the jury eventually returned a verdict of guilty on all counts as to each defendant. Defendant McCutcheon now appeals.
The jury began deliberations on 21 December 1984. After deliberating for nine hours over two days, the jury sent the trial judge a note stating that it could not agree on a verdict. The court responded with a written instruction urging that the jury reach an agreement.
Later, the jury sent to the trial judge another note, which stated: "If we declare a hung jury, will we have to each present our individual views in open court? Two jurors believe there is not enough conclusive physical evidence and circumstantial evidence on all counts for both defendants. signed, [Foreman]." (emphasis added). The trial court called the jury into open court and questioned the foreman.
THE COURT: We have called you back into the courtroom to discuss whether or not you can reach a verdict. Mr. Chavez, [foreman] I need to know whether you believe on behalf of the members of the jury whether or not there is any reasonable possibility or probable that the jury will be able to reach a verdict in a reasonable time? Before you answer that, I don't want you to tell me how many ballots you have taken. I don't want you to tell me what the split is or anything. Just whether or not you feel there is a reasonable probability the jury can reach a verdict within a reasonable period of time. Whether it be tonight or some other time.
MR. CHAVEZ: Now, on this answer, this question, when you say reasonable time, you are talking about tonight or a future
THE COURT: * * * But my question right now, within a reasonable period of time, do you think this jury can reach a *319 verdict on the various counts on the two defendants?
MR. CHAVEZ: Well, from what I have determined, this jury cannot come to a unanimous decision.
THE COURT: On any?
MR. CHAVEZ: On any counts. That is, unanimous on all counts. We can't come to an unanimous
THE COURT: decision on any one?
MR. CHAVEZ: Not even on one. I have gone over all the jurors and I have gone over this to I have asked that question, if there is even any single count on what we can all agree.
THE COURT: On either of the defendants?
MR. CHAVEZ: On either defendant.
THE COURT: All right.
* * * * * *
THE COURT: Can this jury, in your opinion, reach a verdict on one count against one defendant?
MR. CHAVEZ: I can't answer that question. I would have to go back into the room and ask that question. I have asked that question before.
THE COURT: You didn't have this case very long last night, I think just an hour or so. Was it not a couple of hours at the most? You have been at it all day long today. We have had a two week trial. We have had six days twelve days how many days? We have had, I think, four days one week and five days six, okay. Do you think it's a probability that the jury, if you could recess now and come back some time in the future, you can then start again with your notes and read the jury instructions once again and perhaps reach one verdict on one count against one defendant?
(emphasis added).
The trial court then held a bench conference during which the state asserted that he thought the judge's last statement suggested that the jury should find one defendant guilty on one count. The judge disagreed with the state's assertion, and further discussion at the bench followed. Then, in open court the judge said,
Ladies and gentlemen, I am in no way attempting to put any pressure on you to reach any verdict. I'm only trying to determine whether or not you have deliberated as far as you think you can go in order to reach a verdict.
The trial judge again asked the foreman whether the jury could return a verdict within a reasonable time. The foreman expressed a willingness to return to deliberations; however, when the judge asked the entire panel that question, the two holdout jurors individually asserted they did not intend to change their minds. The judge again asserted that she was not trying to pressure the jury but that she needed to determine whether further deliberations would be helpful. By a show of hands, the jury unanimously asserted it could not.
The trial judge then called the attorneys to the bench. Counsel for McDonald asserted that the jury should continue to deliberate and if necessary, the jury could break for the holiday and return the day after Christmas to continue their deliberations. Counsel for defendant McCutcheon, however, asserted that a mistrial should be granted.
Nevertheless, the judge told the jury she believed they had not had sufficient time to deliberate and therefore, she was not going to declare a mistrial. The trial judge ordered the jury to return 26 December 1984. On 26 December 1984, the jury deliberated almost six more hours and returned verdicts of guilty on all counts as to each defendant. From the denial of his motion for new trial, defendant appeals.
We have no quarrel with the attempt by the trial judge to urge the jurors to reach a verdict if they were able to do so without giving up their conscientious convictions. A trial judge does not, however, have free rein in attempting to get the jury to agree on a verdict.
A trial judge must be careful not to appear to influence a jury into making a particular decision or coerce a jury into a *320 verdict that the jury would not otherwise reach without compromising the beliefs of one or more jurors. As we have noted:
A trial judge is often presented with a dilemma in situations involving long deliberation by juries. If he insists on prolonging the deliberation after the jurors have expressed the feeling that they cannot reach a verdict, the trial judge may then be accused of trying to coerce a verdict.
State v. Moore, 108 Ariz. 532, 536, 502 P.2d 1351, 1355 (1972), cert. denied, 412 U.S. 906, 93 S.Ct. 2292, 36 L.Ed.2d 971 (1973).
The test of coerciveness is whether the trial court's actions or remarks, viewed in the totality of circumstances, displaced the independent judgment of the jurors. See State v. Roberts, 131 Ariz. 513, 642 P.2d 858 (1982). Influence and coercion has often been found where trial judges encourage a deadlocked jury to reach a verdict. See Pfeiffer v. State, 35 Ariz. 321, 278 P. 63 (1929) (where a judge's statement that the jury ought to be able to agree on some verdict amounted to comment on weight of evidence and his statement that he would give jury plenty of time to decide and he would stay the rest of the week amounted to coercion).
When the numerical division is known, particularly if the division is lopsided, encouraging the jury to decide can amount to coercion. In State v. Roberts, supra, we addressed the propriety of a trial judge's inquiry into the numerical division of the jury. The trial judge in Roberts knew the division but not whether the majority was for or against acquittal. 131 Ariz. at 514-515, 642 P.2d at 859-860. We held that under the totality of the circumstances the inquiry into the numerical division was not coercive. Id. at 516, 642 P.2d at 861. However, we condemned the use of such inquiry because "there is more danger of possible prejudice than any possible good which may result in employing the practice." Id. at 515, 642 P.2d at 860.
The California courts have also addressed the issue of inquiry into numerical division. The California Supreme Court held that when a trial judge knows how many jurors stand on each side of the ultimate issue and urges the jury to return a verdict, it "creates in the jury the impression that the court, which has also heard the testimony in the case, agrees with the majority of jurors. Coercion of the jurors in the minority clearly results". People v. Carter, 68 Cal.2d 810, 814, 69 Cal. Rptr. 297, 301, 442 P.2d 353, 357 (1968) (citations omitted).
In the instant case, there were two examples of coercion by the trial court. The first resulted from the fact that the judge knew the division of the jury. Admittedly, the trial judge inadvertently discovered that two jurors were in favor of acquittal. These two jurors adamantly asserted in open court that they did not intend to change their verdicts. In spite of the jury's assertion that it was deadlocked, the trial judge repeatedly asked whether the panel could reach a verdict on "one count against one defendant". Since the jury knew that the trial judge was aware the majority had voted for conviction, her repeated questions sent an inference that she agreed with the majority. We believe she implicitly communicated to the dissenters the message that she thought they should change their views, since that would be the only way, in all likelihood, a verdict could be reached. Any pressure to decide then was pressure to decide against the defendant.
Second, the form of the two questions could only indicate that the judge desired a conviction. The court asked on two occasions "Can this jury ... reach a verdict on one count against one defendant?" and
Do you think it's a probability that the jury, if you could recess now and come back some time in the future, you can then start again with your notes and read the jury instructions once again and perhaps reach one verdict on one count against one defendant?
(emphasis added).
The impact of these questions is that the jury must go back and find at least one *321 defendant guilty on at least one count before they could be released. As such, it was coercive. It was, therefore, error for the trial judge not to declare a mistrial or grant a new trial.
The matter is reversed and remanded for new trial.
HOLOHAN, C.J., GORDON, V.C.J., and HAYS and FELDMAN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318821/ | 94 S.E.2d 558 (1956)
244 N.C. 502
Edna M. SCARBOROUGH
v.
WORLD INSURANCE COMPANY.
No. 22.
Supreme Court of North Carolina.
September 26, 1956.
*560 Jack W. Marer, R. C. Andrews, Omaha, Neb., and Worth & Horner, Elizabeth City, for defendant, appellant.
Wallace R. Gray, and McCown & Mc-Cown, Manteo, for plaintiff, appellee.
DEVIN, Justice.
The policy issued to Adrian C. Midgett by the defendant insured against loss of life resulting directly and independently of all other causes from bodily injuries sustained through purely accidental means. It was not controverted that the death of the insured resulted from an altercation with the witness Baldwin. From the testimony of this witness, who was the sole witness to the occurrence offered by the plaintiff, the conclusion seems inescapable that the insured was the aggressor; that he used the language of vituperation and fury and demonstrated an attempt to do violence to the person of the witness; that he advanced with arms raised up the steps of Baldwin's home in such a manner as to put Baldwin in fear, so much so that Baldwin was caused to push him away to protect himself and his home, and then to retreat within doors.
The policy sued on insured against loss of life resulting from bodily injuries sustained through accidental means. In Fletcher v. Security Life & Trust Co., 220 *561 N.C. 148, 16 S.E.2d 687, Barnhill, J., drew the distinction between "accidental" and "accidental means" as these terms are used in accident insurance policies, and pointed out that the phrase "accidental means" refers to the occurrence or happening which produces the result rather than the result. Scott v. Aetna Life Ins. Co., 208 N.C. 160, 179 S.E. 434; Kirkiey v. Merrimack Mut. Fire Ins. Co., 232 N.C. 292, 59 S.E.2d 629; Ocean Accident & Guarantee Corp. v. Glover, 165 Va. 283, 182 S.E. 221. See also Michie's Jurisprudence, Law of Virginia, Insurance Sec. 128; Vance on Insurance, 569.
Where the policy insures against loss of life through accidental means, the principle seems generally upheld that if the death of the insured, although in a sense unforeseen and unexpected, results directly from the insured's voluntary act and aggressive misconduct, or where the insured culpably provokes the act which causes the injury and death, it is not death by accidental means, even though the result may be such as to constitute an accidental injury. 45 C.J.S., Insurance, § 753, p. 779.
Where the insured is the aggressor in a personal encounter and commits an assault upon another with demonstration of violence and knows, or under the circumstances should reasonably anticipate, that he will be in danger of great bodily harm as the natural and probable consequence of his act or course of conduct, his injury or death may not be regarded as caused by accidental means. 45 C.J.S., Insurance, § 788, p. 827.
Where the death of the insured results from an aggressive assault upon another, whether the loss is covered by the terms of the policy insuring against death through accidental means depends on whether the death was the natural and probable consequence of the insured's aggression, and what is the natural and probable consequence thereof depends on the character of the aggression and the circumstances attending. Podesta v. Metropolitan Life Ins. Co., Mo.App., 150 S.W.2d 596.
It was said by Hoke, J., in Clay v. State Ins. Co., 174 N.C. 642, 94 S.E. 289, 290, L.R.A.1918B, 508, that "the true test of liability, in cases of that character, is whether the insured, being in the wrong, was `the aggressor under circumstances that would render a homicide likely as result of his own misconduct.'" In that case the insured was killed by a pistol shot while engaged in an affray with another.
In Mutual Ben. Health & Accident Ass'n v. Ryder, 166 Va. 446, 185 S.E. 894, 896, it was said: `One who assaults another, or voluntarily enters into an affray and is hurt, has not suffered an accident."
Applying these principles of law to the uncontradicted evidence in this case, we conclude that the death of the insured Adrian C. Midgett did not result from bodily injuries sustained through purely accidental means, and hence was not covered by the policy of insurance sued on.
We have considered the authorities cited by counsel for the appellee in their brief and the arguments they advance that the death of the insured in the manner described by the witness was not the natural and probable consequence of the conduct of the insured, but we think the character and the extent of the insured's aggression under the circumstances herein fully set out are such as to exclude the concept of death by accidental means within the meaning of the policy.
The defendant's motion for judgment of nonsuit, aptly interposed, should have been allowed.
The judgment of the Superior Court is Reversed.
JOHNSON, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318748/ | 94 S.E.2d 562 (1956)
244 N.C. 603
Samuel D. CHERRY, Lucy A. Ambrose and Charlie W. Cherry.
v.
Dennis WOOLARD.
No. 30.
Supreme Court of North Carolina.
October 17, 1956.
*566 LeRoy Scott, John A. Wilkinson, Washington, N.C., for plaintiffs appellants.
Rodman & Rodman, Washington, N.C., for defendant appellee.
WINBORNE, Chief Justice.
The sole assignment of error presented on this appeal is based upon exception to the action of the trial court in granting defendant's motion for judgment as of nonsuit at the close of plaintiffs' evidence.
At the outset it is noted that the parties agree that for the purposes of this appeal the ex parte special proceeding numbered 2663 in the office of Clerk of Superior Court of Beaufort County is not a part of defendant's chain of title. Therefore, the inquiry here is, and will be confined to the collateral attack made by plaintiffs upon the civil action, commenced 30 November, 1929, in Superior Court of Beaufort County, wherein Beaufort County is plaintiff and S. B. Cherry, et al, are defendants for purpose of foreclosing tax liens for the year 1927 on the lands described in the complaint, amended to include tax liens for years 1929 and 1930.
There are no exceptions to any particular part of the procedure followed. But plaintiffs, appellants, in their brief filed here, raise several questions in which they contend that reversible' error appears upon the face of the record.
In this connection it is well settled in North Carolina that, in the absence of fraud or the knowledge of fraud, one who purchases at a judicial sale, or who purchased from one who purchased at such sale, is required only to look to the proceeding to see if the court had jurisdiction of the parties and of the subject matter of the proceeding, and that the judgment on its face authorized the sale. Graham v. Floyd, 214 N.C. 77, 197 S.E. 873, citing cases. See also Bladen County v. Breece, 214 N. C. 544, 200 S.E. 13, and cases cited. Also Mclver Park, Inc., v. Brinn, 223 N.C. 502, 27 S.E.2d 548; Powell v. Turpin, 224 N.C. 67, 29 S.E.2d 26.
Therefore in the light of statutes in effect in this State at the time of the institution and pendency of the action to foreclose, does it appear upon the face of the judgment roll that the court had jurisdiction (1) of the subject matter of the action, and (2) of the person of the minor defendants there, plaintiffs here?
Appellants state in their brief "this tax proceeding W-96 is either void or voidable with defects open and apparent on the record."
It is contended that while the minor defendants were brought into this action by what was called an alias summons, the calling of it "alias summons" does not make it so, citing Mintz v. Frink, 217 N.C. 101, 6 S.E.2d 804, 806.
*567 But the difficulty plaintiff encounters is that the factual situation in Mintz v. Frink, supra, is not the same as in the case in hand,and the statute C.S. § 480, now G.S. § 1-95, relied upon, is inapplicable here. The Mintz case was not dealing with the subject of summons for new parties, as in instant case, but with a case where the summons issued for defendant was not properly served,the Court saying that the status of the process was the same as if service had not been made, and hence plaintiff then had the right, given by statute, C.S. § 480 (now G.S. § 1-95), to "`sue out an alias * * * summons, returnable in the same manner as original process' * * a right which could and must have been exercised at any time within ninety days next after the date of the original summons". And the Court continued by saying: "In order to preserve a continuous single action referable to the date of its institution the original ineffective summons must be followed by process successively and properly issued * * *. An alias follows next after the original. * * *"
Thus, as the statute, C.S. § 480, in effect in 1931 expressly states, "When the defendant in a civil action or special proceeding is not served with summons within the time in which it is returnable, the plaintiff may sue out an alias or pluries summons, returnable in the same manner as original process." An alias summons issues only when the original summons has not been served upon a party defendant named therein. Powell v. Dail, 172 N.C. 261, 90 S.E. 194; Rogerson v. Leggett, 145 N.C. 7, 58 S.E. 596.
Now did the court have jurisdiction of the subject matter of the action to foreclose, and of the parties? C.S. § 7987 provided in pertinent part that the lien of county taxes levied for any and all purposes in each year shall attach to all real estate of the taxpayer situated within the county by which the tax list is placed in the sheriff's hands, which lien shall attach on the first day of June, annually, and shall continue until such taxes, with the penalty and costs which shall accrue thereon, shall be paid.
And C.S. § 7990 provided in pertinent part that a lien upon real estate for taxes due thereon may be enforced by an action in the nature of an action to foreclose a mortgage, in which action the court shall order a sale of such real estate, or so much thereof as shall be necessary for that purpose, for the satisfaction of the amount adjudged to be due on such lien, together with interest, penalties, and costs allowed by law, and the costs of such action. When such lien is in favor of the county, such action shall be prosecuted by and in the name of the county.
In an action pursuant to the provisions of C.S. § 7990, it is provided by statute C.S. § 451 that in all actions when any of the defendants are infants, they must defend by their general or testamentary guardian, if they have one within the State; and if they have no general or testamentary guardian in the State, and any of them has been summoned, the court in which said action is pending, upon motion of any of the parties, may appoint some discreet person to act as guardian ad litem, to defend in behalf of such infants. The guardian so appointed shall, if the cause is a civil action, file his answer to the complaint within the time required for other defendants, unless the times extended by the court, C.S. § 453. See Graham v. Floyd, supra; Mclver Park, Inc., v. Brinn, supra.
Indeed the statute C.S. § 453 declares that when a guardian ad litem is appointed he shall file an answer in the action admitting or denying the allegations.
Moreover, the appointment of the guardian ad litem before service upon the infants is an irregularity, but it does not render the proceeding void. The irregularity may be cured by the service of summons on the infants thereafter and the filing of the answer of the guardian. Dudley v. Tyson, 167 *568 N.C. 67, 82 S.E. 1025; Carraway v. Lassiter, 139 N.C. 145, 51 S.E. 968.
In the light of these principles, the record discloses that S. B. Cherry was appointed guardian ad litem of his minor children, and of those not in being, on the same day they were made parties and served with summons. Apparently this was an irregularity, such as is above described, which could be cured by the service of summons on his children, and the filing of an answer by him. They were served, as the record indicates, but he did not file answer, and refused to serve as such guardian. In such event it was the duty of the plaintiff there as held by this Court in Isler v. Murphy, 71 N.C. 436 to have had appointed as guardian some discreet person who was willing to act and defend as the law prescribes. This is just what the plaintiff did in the present case. Upon motion of plaintiff S. B. Cherry was removed as guardian ad litem as aforesaid. And the record shows that accordingly S. M. Blount, who is found by the court to be a suitable, discreet and disinterested person, was appointed guardian ad litem of said minors and of any other children of Samuel B. Cherry and Laura Myrten Cherry, not in esse, and ordered and directed (1) to appear for and represent the interests of the wards for whom he was so appointed, (2) to inquire into and examine the proceeding, and (3) to file such answers on their behalf as in his judgment might be proper. And the record shows that on the same day S. M. Blount accepted the appointment and agreed "to act faithfully and diligently in such capacity." The record also shows that he filed answer in which he admitted the allegations of the complaint and of the amended complaint, and submitted the determination thereof to the court. His appointment and his filing of answer all occurred after the date the record shows the infants were served. On the face of the record this cured any irregularity that resulted from the appointment of S. B. Cherry as guardian ad litem before any of the infants were served.
Appellant calls attention, however, to the phraseology and punctuation in the return of the sheriff in respect to the clause "also, copies to all minor defendants," and the court is urged to study the photograph of the return shown in the record on this appeal, and to determine whether an issue should have been submitted to the jury as to whether there was any delivery of copies to the minor defendants,that is, whether the above clause was in fact a part of the return as made by the sheriff.
In this connection this Court, adverting to a contention of similar nature in the case of Graham v. Floyd, supra, had this to say [214 N.C. 77, 197 S.E. 877]: "We cannot agree that one examining the title is held to constructive knowledge of so minute details. It would be otherwise if there were actual knowledge thereof." In the present case actual knowledge of the matter sought to be presented does not appear, and constructive knowledge of so minute detail will not be exacted of a purchaser for value at a sale under such proceeding, much less of one who purchased at judicial sale to make assets to pay debts of the one who purchased at the tax foreclosure sale.
Therefore this Court holds that upon the face of the judgment roll of the tax foreclosure action, there is no such irregularity as will impair the validity of it. It is manifest that the court had jurisdiction of the parties, and of the subject matter, and that the judgment on its face authorized the sale. Graham v. Floyd, supra, and cases hereinabove cited.
Moreover, it was not incumbent upon the purchaser at the judicial sale to see that the money paid for the property was properly disbursed. Perry v. Bassenger, 219 N.C. 838, 15 S.E.2d 365.
Indeed, as stated by Stacy, C. J., in Beam v. Gilkey, 225 N.C. 520, 35 S.E.2d *569 641, 644, "When the purchaser paid his bid into court, or to its officer duly authorized to receive it, he was relieved of any further responsibility in connection with the interests then being sold."
Hence the judgment from which plaintiffs appeal is
Affirmed.
JOHNSON, J., not sitting
RODMAN, J., took no part in the consideration or decision of this case.
PARKER, J., dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318961/ | 230 S.C. 65 (1956)
94 S.E.2d 172
CLANTON'S AUTO AUCTION SALES, INC., Appellant,
v.
JOE CAMPBELL and MRS. BESSIE S. HODGES and J.P. HODGES, as Co-Executors of the Will of K.B. Hodges, Deceased, Respondent, CLANTON'S AUTO AUCTION SALES, INC., as Assignee of Harmon Motor Company, Appellant,
v.
JOE CAMPBELL and MRS. BESSIE S. HODGES and J.P. HODGES, as Co-Executors of the Will of K.B. Hodges, Deceased, Respondents.
17198
Supreme Court of South Carolina.
August 8, 1956.
*66 *67 Messrs. Leroy M. Want and Robert L. Kilgo, of Darlington, for Appellant.
Messrs. Russell D. Miller and Joseph P. Edens, Jr., of Bennettsville, for Respondents.
*68 August 8, 1956.
LEGGE, Justice.
These cases arose out of a collision in Marlboro County on September 25, 1952, between a Ford automobile alleged by the plaintiff to have been owned by it at that time, and a Chevrolet truck belonging to K.B. Hodges, now deceased, which was being driven by the defendant Campbell.
In the first case the trial judge, Honorable J. Martin, Jr., denied plaintiff's motion for directed verdict and submitted the issues to the jury, which found for the defendant. Thereafter plaintiff moved for judgment n. o. v. or, alternatively, new trial; and the appeal is from the order denying that motion.
In the second case the appeal is from an order of Honorable J. Woodrow Lewis, Judge of the Sixth Circuit, dismissing the action as barred by the judgment in the former.
Plaintiff (hereinafter referred to as Clanton) operates a wholesale automobile auction market in Darlington County. On September 4, 1952, it sold the Ford automobile in question to Harmon Motor Company, of Raleigh, North Carolina. Thereafter, it having been rumored that the car had been stolen prior to Clanton's acquisition of it, Clanton arranged by telephone to repurchase it from Harmon, and the latter agreed to redeliver it to Clanton on the next trip that one of its employees should make to the Clanton market. It was on this trip that the collision occurred. The automobile was demolished. Later, it developed that the rumor as to its having been stolen was false.
In August, 1954, Clanton brought this action against Campbell and the personal representatives of the decendent Hodges, seeking to recover damages for the destruction of the automobile, which, in paragraph 2 of the complaint, it alleged was its property at the time of the accident on September *69 25, 1952. Following are the allegations of the first defense in the answer of the defendants:
"1. That they deny each and every allegation in said complaint contained, except so much as may be hereinafter specifically admitted, qualified or explained.
"2. Admit the allegations of paragraph one (1) of the complaint (i. e. corporate existence of plaintiff, residence of defendants, and qualification of the personal representatives).
"3. Admit so much of the allegations of paragraph 2 (2) as allege that on or about the 25th day of September, 1952, a Ford automobile was being driven west along South Carolina Highway No. 34 in Marlboro County, and that the same was involved in an acident with a Chevrolet truck, the property of K.B. Hodges, since deceased, but the remaining portions of said allegations are specifically denied.
"4. That the allegations of paragraphs three (3), four (4) and (5) (i. e. allegations of negligence on the part of the truck driver, and of damage to plaintiff's automobile) are denied, and defendants deny, on information and belief, that the Ford automobile is, or was, the property of the plaintiff."
In addition, defendants pleaded contributory negligence. Upon the trial the plaintiff introduced in evidence the bill of sale under which it had originally acquired the automobile, the bill of sale dated September 4, 1952, under which it had sold it to Harmon, and its cancelled check for $1,335.00, dated September 26, 1952, which it had given to Harmon in its repurchase.
The trial judge refused plaintiff's request that a special verdict be found on the issue of ownership. Instead, he charged the jury that they must first determine the question of ownership and that, if they should find that the plaintiff owned the automobile at the time of the acident, they should then proceed to consider the issue of negligence.
The jury having found for the defendants, plaintiff moved for judgment n. o. v., or, failing that, for a new trial, upon the following grounds:
*70 1. That the verdict was without evidentiary support;
2. That the trial judge erred in refusing to instruct the jury to find a special verdict on the issue of ownership of the automobile; and
3. That the trial judge erred in submitting the issue of ownership to the jury because (a) the defendants had not alleged who owned the automobile if the plaintiff did not own it, and (b) defendants' denial of plaintiff's ownership had been made on information and belief and was unsupported by testimony.
Judge Martin's refusal to grant this motion is challenged by five exceptions, presenting two questions, to wit:
1. Was the issue of ownership raised by the answer? (Exceptions 1, 2, and 3.)
2. Was there error in refusing plaintiff's request for a special verdict on the question of ownership? (Exceptions 4 and 5.)
Section 10-652 of the 1952 Code provides that the answer must contain "a general or specific denial of each material allegation of the complaint controverted by the defendant or of any knowledge or information thereof sufficient to form a belief."
Denial "on information and belief" is manifestly not the same as denial "of any knowledge or information sufficient to form a belief." The former is predicated upon information in the possession of the pleader; the latter, upon the absence of such information. But although the Code does not expressly provide for denial "on information and belief," the property of such a denial would appear to be recognized in Section 10-604, which declares that the verification of any pleading must be to the effect "that the same is true to the knowledge of the person making it except as to those matters stated on information and belief and, as to those matters, that he believes them to be true." See 41 Am. Jur., Pleading, Section 151; 71 C.J.S., Pleading, §§ 149, 150; Maclay v. Sands, 94 U.S. 586, 24 L.Ed. 211; Bank of Enoree v. Yarborough, 120 S.C. 385, 113 S.E. 313.
*71 Denial in either of the forms just mentioned with respect to the plaintiff's capacity to sue, or to facts presumptively within the defendant's knowledge, or to matters of public record, is not sufficient to put such facts in issue. Thus it was held in Land Mortgage Investment & Agency Company v. Williams, 35 S.C. 367, 14 S.E. 821, that the plaintiff's corporate existence had not been put in issue by defendant's denial of knowledge or information sufficient to form a belief as to it. To the same effect is Pegues v. Polson, 128 S.C. 456, 123 S.E. 8. And in Bank of Enoree v. Yarborough, supra, denial, upon information and belief, of the plaintiff's incorporation was likewise held insufficient. See also Blackwell v. First National Bank of Columbia, 185 S.C. 427, 194 S.E. 339, where allegations charging a bank with negligence in having failed to ascertain the identity of a person presenting a check endorsed by the plaintiff were held not to have been effectively controverted by the bank's denial of them "upon information and belief."
In the case at bar it will be noted that in paragraph 3 of the first defense the denial of plaintiff's ownership of the Ford automobile is categorical, and not upon information and belief. But apart from that, the denial upon information and belief, in paragraph 4, was sufficient to put plaintiff's ownership in issue. Such ownership was not a matter of public record or presumptively within defendants' knowledge, and to put plaintiff to the proof of it did not require specific and unqualified denial. Moreover, if, as plaintiff contends, the denial was insufficient, its insufficiency was apparent on the face of the first defense, rendering that defense subject to demurrer. But plaintiff did not demur, and obviously considered the issue of ownership as having been raised, for it offered evidence thereabout.
Appellant suggests that since the only evidence of ownership of the automobile was that which it had introduced, the trial judge erred in submitting the question of ownership to the jury. But we think that the question was properly submitted, especially in view of the *72 circumstances of the transaction between appellant and Harmon, to which reference has already been made.
The request for a special verdict on the question of ownership was addressed to the trial court's discretion. Code 1952, Section 10-1453; Floyd v. New York Life Ins. Co., 110 S.C. 384, 96 S.E. 912; Key v. Carolina & N.W. Ry. Co., 165 S.C. 43, 162 S.E. 582; Barton v. Southern Ry. Co., 171 S.C. 46, 171 S.E. 5. Appellant suggests that without the answer to that question it cannot know to whom it must look to make good its loss, and that the refusal of its request for a special verdict may lead to multiplicity of suits. But such considerations, under the record before us, do not warrant our holding that refusal of the request was abuse of the trial court's discretion.
We conclude, therefore, that the appeal in the first case is without merit.
After the adverse judgment in the case before mentioned, Clanton, as assignee of Harmon, brought another action against the same defendants to recover damages for the destruction of the Ford automobile before mentioned. The complaint in the second action is identical with that in the first, except as follows:
1. In paragraph 2 of the complaint in the first action, the automobile is referred to as "plaintiff's Ford automobile"; in paragraph 2 of the complaint in the second action it is referred to as "a Ford automobile belonging to plaintiff under circumstances hereinafter related."
2. The following allegations, absent from the former, appear in the latter:
"4. That previous to said accident the said Ford automobile had been purchased from the plaintiff, Clanton's Auto Auction Sales, Inc., by Harmon Motor Company, Inc., of Raleigh, N.C., the plaintiff giving to said Harmon Motor Company its warranty of title; that, upon information and belief that the car had been stolen before it reached plaintiff's wholesale auction market by person or persons unknown to *73 it, the plaintiff offered to repurchase said car back from Harmon Motor Company, which it did by telephone and which vehicle Harmon Motor Company offered to deliver to plaintiff on the next trip of one of its employees to the Clanton Market.
"5. That the accident detailed above occurred while the car was being delivered to Clanton's by Harmon Motor Company under purchase agreement already completed; that because it regarded itself as the owner of the Ford in question and on information and belief, looked to the defendants herein to make good its loss from the accident, plaintiff at once paid to Harmon Motor Company the agreed purchase price; that it quickly developed that the car in question was not a stolen vehicle, leaving the plaintiff the loser solely because of the accident to its car.
"6. That although plaintiff claims to have owned this car subsequent to its repurchase and prior to the said accident, its ownership of said car has been put in question by these defendants in prior litigation; that said litigation left unanswered the question of ownership; that therefore, plaintiff has taken a bill of sale of whatever interest Harmon Motor Company, previous owner of the car, might have, and an assignment of any right of action it might have, and these papers are made a part of this complaint as if incorporated fully at this point."
3. The bill of sale and the assignment referred to in paragraph 6 of the complaint in the second action are as follows:
"Bill of Sale
"State of North Carolina
"County of Wake
"Know all men by these presents, that Harmon Motor Company of Raleigh, North Carolina, party of the first part, for and in consideration of the payment to it of the sum of $1,335.00 on or about September 26, 1952, and the further payment to it at this time of $3.00, receipt of both of which from Clanton's Auto Auction Sales, Inc., is hereby acknowledged, has granted, bargained, sold and delivered, and by *74 these presents does grant, bargain, sell and deliver, unto Clanton's Auto Auction Sales, Inc., the party of the second part, all its right, title and interest if any in the below described vehicle:
"One 1950 Ford, Tudor, Motor No. Boat 116674.
"To have and to hold the said vehicle unto the party of the second part, its successors and assigns forever.
"And the said party of the first part, claiming no interest in the said vehicle at the time of this instrument but claiming rather that the sale to the party of the second part was completed in September, 1952, makes no warranty as to the title of the party of the first part.
"In witness whereof, the party of the first part has hereunto set its hand and seal this 13th day of January, 1955.
"(Signed) Harmon Motor Company, By Arnold J. Harmon, President.
"In the presence of: Catherine W. Jones, Banks Crandall."
"Assignment
"State of North Carolina
"County of Wake
"In consideration of the sum of $1,335.00 paid to us on or about September 26, 1952, and the further payment to us of $3.00, by Clanton's Auto Auction Sales, Inc., receipt of both of which is hereby acknowledged, we hereby sell, assign, transfer and set and deliver over unto the said Clanton's Auto Auction Sales, Inc., all our right, title and interest in and to, if any, one 1950 Ford, Tudor, Motor No. Boat 116674, including any right of cause of action we might have against Joe Campbell, and Mrs. Bessie Hodges and J.P. Hodges, as co-executors of the estate of K.B. Hodges, deceased, or any other party, growing out of the wrecking of said vehicle.
"Said assignment is made without recourse on us.
"Given under the hand and seal of the Harmon Motor Company this 13th day of January, 1955.
"(Signed) Harmon Motor Company, By Arthur J. Harmon, President.
"In the presence of: Catherine W. Jones, Banks Crandall."
*75 It will be seen that in the second action Clanton, although denominated assignee of Harmon, asserts ownership of the automobile by virtue of its purchase from Harmon prior to the accident. Its claim of ownership is therefore exactly the same as it was in the former action. The bill of sale is, on its face, confirmatory, not investitive, expressly negativing ownership by Harmon at the time of its execution and asserting that the sale of the automobile to Clanton was completed in September, 1952. Such also is the clear implication of the assignment. While neither the bill of sale nor the assignment mention the precise date in September, 1952, upon which the sale to Clanton was completed, the complaint itself plainly states that it was prior to September 25, the date of the accident (paragraphs 5 and 6, ante, and paragraph 7, wherein it is alleged "that the injuries and resulting damage to plaintiff's automobile were caused," etc.). Plaintiff therefore acquired no title or right of action by virtue of the bill of sale and assignment, because Harmon had none to convey or assign. The parties and the issues in both actions being thus identical, the judgment in the former is res judicata, precluding maintenance of the latter. Antrum v. Hartsville Production Credit Association, 228 S.C. 201, 89 S.E. (2d) 376.
The judgment of the lower court in each case is affirmed.
STUKES, C.J., and TAYLOR, OXNER and MOSS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318962/ | 94 Ga. App. 314 (1956)
94 S.E.2d 391
PITTS
v.
FARLOW.
36260.
Court of Appeals of Georgia.
Decided September 5, 1956.
*315 Moise, Post & Gardner, R. Emerson Gardner, Hugh E. Wright, for plaintiff in error.
A. Mims Wilkinson, Jr., Bruce B. Edwards, contra.
NICHOLS, J.
It is well settled law in Georgia that the negligence of a driver of an automobile can not be imputed to a passenger who has no control over the movements of the driver in operating the automobile. It is just as well settled that where the injuries of the passenger are caused solely by the negligence of the driver of the automobile in which he is riding, the passenger cannot recover from a third party, and that, "Questions as to diligence and negligence, including contributory negligence and what negligence constitutes the proximate cause of the injury complained of, are questions peculiarly for the jury, such as this court will decline to solve on demurrer except in palpably clear, *316 plain, and indisputable cases." Tybee Amusement Co. v. Odum, 51 Ga. App. 1 (3) (179 S. E. 415).
The defendant Pitts cites in his brief, for authority that the judgment of the trial court should be reversed, cases such as Brinson v. Davis, 32 Ga. App. 37 (122 S. E. 643), where the driver of the automobile in which the plaintiff was riding knowingly drove onto a railroad crossing and crashed into the side of a parked train while blinded by are lights from the railroad, State Highway Department v. Stephens, 46 Ga. App. 359 (2) (167 S. E. 788), where the driver saw the parked truck but when he realized that it was not moving it was too late to stop without a collision, Reid v. Southern Ry. Co., 52 Ga. App. 508 (183 S. E. 849), where a collision took place in a cloud of smoke and it was alleged that the driver could have seen such smoke when he was 200 yards from it, and Stephens v. Tatum, 92 Ga. App. 256 (88 S. E. 2d 456), where the collision took place in a dust cloud and it was alleged that the driver saw such dust cloud when he was 200 yards away from it. These cases do not fit the facts as alleged in the present petition before this court. The facts, as alleged, do not make it palpably clear that the negligence of the driver of the automobile in which the plaintiff was riding was the sole proximate cause of the collision and it must be held that the trial court did not err in overruling the general demurrer interposed by the defendant Pitts, since it is for a jury to determine what was the proximate cause of the plaintiff's alleged injuries. See Adams v. Jackson, 45 Ga. App. 860 (1) (166 S. E. 258); Callahan v. Cofield, 61 Ga. App. 780 (7 S. E. 2d 592); Brady v. Fruehauf Trailer Co., 63 Ga. App. 50 (10 S. E. 2d 133); Tallman v. Green, 74 Ga. App. 731 (41 S. E. 2d 339); and Atlantic Coast Line R. Co. v. Coxwell, 93 Ga. App. 159 (91 S. E. 2d 135).
Judgment affirmed. Felton, C. J., and Quillian, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318972/ | 198 Va. 360 (1956)
CHARLES PINSKY AND NANCY PINSKY
v.
JACK KLEINMAN, ET AL.
Record No. 4537.
Supreme Court of Virginia.
September 4, 1956.
Herman A. Sacks (Henry Mount, Sacks & Sacks, on brief), for the appellants.
No brief nor argument for the appellees.
Present, All the Justices.
The Kleinmans sold to the Pinskys their drug store business conducted in premises rented from one Bott under a lease prohibiting sublease without his consent. An express condition of the contract of sale was that Bott would allow the Pinskys to remain in the premises. As part of the price the Pinskys placed in escrow the sum of $2,900 to be paid to creditors of the Kleinmans unless Bott had refused to recognize the Pinskys as tenants. He so refused and the Pinskys vacated the premises. In the instant suit brought by the Kleinmans to recover on a note for part of the purchase price the court held this escrow money was theirs and referred to a commissioner the ascertainment of the creditors entitled to it. This decree was improper. The vendor having in effect defaulted in delivery of the subject matter of the sale, the vendees, the Pinskys, were entitled to recovery of any part of the purchase price paid, and should not be left to action for breach of contract.
Appeal from a decree of the Circuit Court of the city of Norfolk. Hon. Clyde H. Jacob, judge presiding. The opinion states the case.
BUCHANAN
BUCHANAN, J., delivered the opinion of the court.
Jack Kleinman and Gladys Kleinman brought this suit in equity against Charles Pinsky and Nancy Pinsky, W. M. Bott, lessor of the Kleinmans, and certain of the creditors of the Kleinmans. The main purposes of the suit were to recover a judgment against the Pinskys *361 for $7,000, evidenced by a note, and to have the court direct Steingold and Leitch, who were not made parties to the suit, how to dispose of a fund held by them in escrow.
By a written contract dated September 15, 1954, the Kleinmans sold to the Pinskys their drugstore business in Norfolk known as Federal Cut Rate, consisting of the stock of goods, furniture, fixtures, equipment and good will, for the price of $10,000, of which $100 had been paid as a deposit, $7,000 was evidenced by a note secured by a deed of trust on the property sold, and $2,900 was paid to Steingold and Leitch, as escrow agents, to be held by them in escrow for sixty days, upon the expiration of which they were to pay all debts of Federal Cut Rate unless W. M. Bott, the owner and lessor of the building in which the business was conducted, "has taken action for termination, cancellation or forfeiture of the said lease by then, or has refused to accept payment of rent from said Charles Pinsky and Nancy Pinsky."
By a writing dated September 16, 1954, the Kleinmans confirmed to the Pinskys the understanding that in the event the agreement of sale was cancelled under its terms, the Pinskys would be entitled to retain all profits realized during their operation of the business.
In the contract of sale the Kleinmans assigned to the Pinskys the lease from Bott for the premises, which would expire December 31, 1958, carrying a rental of $500 a month, which the Pinskys agreed to pay to Bott.
The Kleinmans also agreed to save the Pinskys harmless from litigation or difficulties in the event Bott refused or attempted to refuse to recognize the rights of the Pinskys under the assignment of the lease, and the contract in terms provided: "This contract is predicated upon the owner of the aforesaid premises [Bott] allowing the vendees [Pinskys] to remain in possession of the aforesaid premises so long as the vendees comply with the terms of the aforesaid lease."
The lease so attempted to be assigned was made by Bott to Sol Hechtkopf for a term of ten years from January, 1, 1949, carried a rental of $500 a month after January 1, 1954, and contained a provision that the lessee could not assign the lease for the whole or any part of the term without the written consent of the lessor. All rights and liabilities of the parties were to extend to their successors, and so far as the lease was assignable by its terms, to the assigns of the parties. *362 By writing dated September 29, 1950, Hechtkopf had assigned this lease to the Kleinmans with the written consent of Bott, but Hechtkopf was not released from any obligations imposed during the original term.
Bott filed his answer to the bill of complaint averring that he had not accepted any rent from either of the Pinskys and that he had no agreement with the Pinskys to pay any rent.
The answer of the Pinskys alleged that no assignment to them of the lease had ever been executed; that Bott had not consented to such an assignment and that pursuant to the terms of the agreement in that event they had moved out of the property and returned the keys to the complainants' attorney.
The evidence confirmed the averment that there had been no assignment by Bott of the lease to the Pinskys and Bott testified that he had never at any time recognized them as his tenants, and that he had returned two checks sent him by the Pinskys for the rent. Charles Pinsky testified that the checks so returned were two certified checks and that from September 17 to November 30, 1954, he endeavored to get a lease on this store which Bott refused to give and, consequently, he moved out on the latter date without any process of law requiring him to do so.
Subsequently, it was testified, Bott had the property sold under a distress warrant and at the time of the hearing a clothing store was being operated on the premises.
The court took the view that under the contract the Pinskys had no right to vacate the premises but had to stay on until they were dispossessed. The decree appealed from dismissed without prejudice the complainants' claim for judgment for the $7,000 note on the ground that in an action by the Pinskys against the Kleinmans in the Court of Law and Chancery of the City of Norfolk, the Kleinmans had filed a cross-claim for a judgment against the Pinskys on the same note and afterwards took a nonsuit thereon, and hence they could not maintain a suit for the same cause in the Circuit Court of the City of Norfolk. Code | 8-220.
But the decree further adjudicated that the sum held in escrow by Steingold and Leitch, stated to be $2,650, belonged to the Kleinmans subject to the payment of the debts of such of the defendants as were creditors of the Kleinmans on September 15, 1954, and not yet paid, and referred the cause to a commissioner to report who the creditors *363 were and the amounts due them. This part of the decree we hold to be in error.
An essential element of the sale was the lease held by the Kleinmans for the premises in which the business sold was to be conducted. This lease the vendors assigned to the vendees and stated in the contract that it was predicated on the owner of the premises allowing the vendees to remain in possession so long as they complied with the terms of the lease. Furthermore, the contract provided that the escrow agents were to hold the escrow fund for sixty days, and then pay the debts unless Botts had taken action to terminate the lease "or has refused to accept payment of rent" from the Pinskys which, as stated, he did refuse to do.
The necessary inference from this and other terms of the contract as alluded to is that if the Kleinmans could not make an effective assignment of the lease the contract of sale would not be binding on the Pinskys. As stated, the sale was predicated on the Pinskys being allowed to remain in possession so long as they complied with the terms of the lease. They could not comply with the terms of the lease if Bott refused to receive the rent and to recognize them as tenants.
The vendees should not be compelled to pay to the vendors the purchase price for that which the vendors could not deliver. A purchaser entitled to a good title need not pay the purchase money until he gets good title. 19 Mich. Jur., Vendor and Purchaser, | 45, p. 354; Rosenberger Bowen, 84 Va. 675, 5 S.E. 699. If the vendor is unable to convey that which he contracted to sell, the vendee may, if he is himself ready, able and willing to perform, elect to rescind and recover back the amount he has paid on the contract. 55 Am. Jur., Vendor and Purchaser, | 541, p. 935; Bryan Lofftus' Adm'rs, 1 Rob. (40 Va.) 12, 39 Am. Dec. 242.
"* * * 'It is a common practice for purchasers of real estate, upon the refusal or inability of the vendor to convey, to bring an action of assumpsit for the purchase money, instead of covenant to recover damages for a breach of the contract.'" Robertson Robertson, 137 Va. 378, 384, 119 S.E. 140, 141.
In Branner Kaplan, 138 Va. 614, 123 S.E. 668, the vendors sold to the vendees their business conducted on leased property under a lease forbidding subleasing without written consent. By the contract of sale the vendors agreed to lease the building or the part used by them to the vendees for a specific term. The vendees made a cash *364 payment of $400, which was to be returned if consent to the assignment of lease could not be obtained. Such consent was obtained but when the second payment fell due the vendees refused to pay because of restrictions in the lease and sued to recover the $400. The decisive question was whether the vendees had a right to recover this $400, or whether the vendors could keep it as damages for the vendees' breach of the contract.
The court held that the vendees had a right to recover the $400; that the vendors were obligated to assure to the vendees the assignment of the lease for a definite term without restrictions; that the provisions of the contract for the sale of the business and the assignment of the lease were interdependent and indivisible; that the vendors had no right to claim the benefit of the contract or damages for its breach unless they were themselves prepared to comply with it; and when the evidence showed they were unable to give the vendees a lease of the premises free from restrictions, the vendees had the right to rescind the agreement and recover from the vendors the $400 cash payment which the vendors had no right to retain "as damages for violation of a contract which they themselves were never able on their part to perform." 138 Va. at 622, 123 S.E. at 671.
The holding in that case is applicable and controlling in this. The Kleinmans were not able to perform their contract to assign to the Pinskys the lease without which the latter could not carry on the business sold to them by the Kleinmans. Not only so, but according to the evidence the stock of goods has passed into other hands because of action taken by the Kleinmans' lessor. It should not be required that the money in the hands of the escrow agents, paid to them by the Pinskys on the purchase of property which the Kleinmans failed to deliver, be now paid to the Kleinmans or their creditors and thereby leave the Pinskys to such relief as they might get in an action for damages against the Kleinmans for their breach of the contract.
For the reasons stated, that part of the decree which holds that the money in escrow in the hands of Steingold and Leitch is the property of the Kleinmans, subject to the payment of the Kleinmans' debts, is reversed; and, since the escrow agents are not parties to the suit and no relief against them can now be granted to the Pinskys, this cause is remanded to the trial court to permit the Pinskys to implead the escrow agents and recover from them the money paid to them by the Pinskys and to which the Pinskys are entitled according to the views herein expressed. Rule 2:14.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318951/ | 198 Va. 416 (1956)
CAROLYN HODGE, ET AL.
v.
AUDRIA E. KENNEDY, ETC., ET AL.
Record No. 4550.
Supreme Court of Virginia.
September 4, 1956.
James L. Jones and Edgar T. Reeves, Jr., for the appellants.
W. Earle Crank and Alexander H. Sands, Jr. (Edward A. Marks, Jr., Sands, Marks, Hening & Sydnor, on brief), for the appellees.
Present, All the Justices.
1. Though a commissioner's report is not entitled to the weight of a jury verdict, yet where it has been confirmed the judgment confirming it should be set aside only because contrary to the evidence or the result of applying wrong principles of law.
2. The firm of Edenton, Rhea, and Haskell ceased to do active business in 1929, when indebted to the Bank of Louisa in the sum of $10,395. Haskell paid half this sum, Edenton signed notes for the other half, and all the partners signed a deed of trust on the firm's timber lands to secure the Edenton note, which deed recited that he and Haskell had undertaken to pay the partnership debt. Management of the firm's property was left with Edenton, who upon selling some credited half the proceeds to Haskell and half to himself. In the instant suit begun in 1953, after the death of Haskell and Rhea, for an accounting of the partnership affairs and distribution of its assets, the partnership was found indebted to Haskell's administrator and to Edenton for the sums advanced by them. On these facts there was no merit to the contention made by Rhea's heirs that these claims against the partnership could not be allowed because not corroborated, corroboration being supplied by the recitals in the deed of trust and by Edenton's credit of funds.
3. The claims of Edenton and Haskell's administrator were not barred by the five-year limitation of Code 1950, section 8-13. The period begins to run, in the case of action for settlement of a partnership account, from the cessation of the partnership dealings. Such dealings within the meaning of the statute continue even after dissolution and embrace any act done in winding up the partnership; and had not, in the instant case, ceased five years prior to institution of the action.
4. Nor were the claims barred by laches. Mere delay without more does not constitute laches.
5. Interest was due on these claims, since they were "payments beyond the amount of capital" which Edenton and Haskell had agreed to contribute.
Appeal from a decree of the Circuit Court of Louisa county. Hon. C. Champion Bowles, judge presiding. The opinion states the case.
MILLER
MILLER, J., delivered the opinion of the court.
Prior to February 19, 1929, J. T. Edenton, Preston H. Haskell and Charles C. Rhea were engaged as partners in buying land, cutting timber and processing lumber under the firm name of J. T. Edenton and Company. As of that date the partnership owned five tracts of land in Louisa county, Virginia, aggregating 491 acres, which had been deeded to J. T. Edenton but actually belonged to the firm.
The partnership was indebted to the Bank of Louisa in the sum of $10,395.70, and on February 19, 1929, Haskell paid one-half of the debt, i.e., $5,197.85 in cash to the bank and Edenton assumed payment of the remainder of the debt to the bank. Edenton was also individually indebted to the bank at the time in the sum of $2,900.00. To secure his individual indebtedness and the balance of $5,197.85 owing to the bank by the partnership, Edenton and wife, Augusta L. Edenton, executed notes and also a deed of trust on Edenton's lands in Spotsylvania county. This trust deed dated February 19, 1929, secured first Edenton's individual pre-existing debt of $2,900 and secondly, the $5,197.85 partnership indebtedness evidenced by a note of even date payable four months after date. On the same date Edenton and wife, Haskell and wife, and Rhea, unmarried, executed a deed of trust on the partnership land of 491 acres and upon *418 one 20 horse power Ajax engine and boiler and one Number 3 American sawmill and equipment, as further security for the note of $5,197.85 given to the bank by J. T. Edenton and wife.
Upon execution of these notes and deeds, all active partnership business ended, and Edenton was left in charge of the firm's property and affairs, and he paid the taxes upon its lands each year. Haskell died April 13, 1931, leaving his widow, Susie H. Haskell, sole beneficiary under his will, and Howze Haskell qualified as administrator, c.t.a., of his estate. Rhea died in Tennessee on November 1, 1933, intestate. He left two sisters, i.e., Carolyn Hodge and Eleanor R. Wright, and several nieces and nephews as his heirs and distributees, and W. C. Bickers qualified in Virginia as ancillary administrator of his estate.
On April 13, 1953, J. T. Edenton and Howze Haskell, administrator, filed their bill of complaint against W. C. Bickers, ancillary administrator of Charles C. Rhea, deceased, Carolyn R. Hodge, Eleanor R. Wright and others, heirs and distributees of decedent. Complainants alleged that the debt of $10,395.70 owing by the partnership to the bank had been paid by Haskell and Edenton and constituted loans to the partnership for which Haskell's administrator and Edenton should be repaid. They sought ascertainment of the partnership obligations, an accounting and settlement of its affairs and distribution of assets to the parties entitled thereto.
Bickers, administrator, Carolyn Hodge and Rhea's other heirs and distributees answered the bill. None admitted or denied the allegation that Haskell and Edenton had each paid the sum of $5,197.85 to the bank on account of the partnership obligation of $10,395.70. However, they asserted that if those sums had been advanced for the partnership in 1929, its obligations to repay Haskell's administrator and Edenton were "now barred by the Statute of Limitations," and laches.
They also asserted that Edenton had cut and sold timber from the partnership lands and failed to account for profits obtained from the partnership and asked for an accounting.
The deposition of J. T. Edenton was taken before Commissioner S. A. Cunningham on April 23, 1953, and on June 8, 1953, the cause was referred to Commissioner Cunningham with directions to report upon inquiries formulated in response to the allegations of the bill and the issues made by the pleadings.
On July 2, 1953, Edenton died and the cause was revived against *419 Audria, E. Kennedy, his executor, and Augusta L. Edenton, sole beneficiary under his will. Other evidence was then taken by the commissioner, and he filed his report on June 4, 1955, along with all the testimony and exhibits upon which it was based.
The commissioner reported that the sums paid by Haskell and Edenton to the bank constituted loans or advances to the partnership and that the partnership was indebted to Haskell's administrator in the sum of $5,197.85, with interest from February 19, 1929, subject to a credit of $269.69 as of February 19, 1929. He also found that the partnership was indebted to Edenton's executor in the sum of $5,197.85, with interest from February 19, 1929. This indebtedness was subject, however, to several substantial credits as of stated dates, totaling $5,217.89, principally derived from sales of timber by Edenton in 1946 and 1949, and the sum of $1,298.20 paid in 1952 by the New Jersey Lead and Zinc Company to Edenton for an option to purchase partnership lands believed to contain mineral deposits. [1] The commissioner also found that Edenton had paid taxes on the partnership lands from 1929 to 1952, and reported that his executor was entitled to recover these items with interest from the dates of payment.
Rhea's administrator, Carolyn Hodge, and the other heirs and distributees of Rhea excepted to the report on the ground that Edenton's testimony that $5,197.85 was owing by the partnership to Haskell's administrator and to him was not corroborated, and under the provisions of | 8-250, Code 1950, without corroboration there could be no recovery from the partnership; that the claims of Haskell's administrator and Edenton's executor were barred by | 8-13, Code 1950, and by laches; and if recovery be permitted, there should be no allowance of interest.
On May 13, 1955, the trial court entered an interlocutory decree which adjudicated the principles of the cause, overruled all exceptions to the report, and confirmed the commissioner's findings in all respects, and from that decree we granted Carolyn Hodge and others an appeal.
The errors assigned to the decree are the same as the exceptions taken by Carolyn Hodge and others to the commissioner's report. *420
Summarized, the pertinent evidence returned with the report is as follows:
The deed of trust executed by the partners on February 19, 1929, as additional security for the note of that date given by Edenton and wife to the bank was filed as an exhibit before the commissioner. It recites that the partnership was indebted to the bank for $10,395.70 and that Haskell and Edenton had undertaken to pay that indebtedness by Haskell paying one-half in cash and "Edenton securing the payment to the said bank of the other one-half."
J. T. Edenton testified that the sum of $10,395.70 was owing to the bank by the partnership and half was paid by Haskell and half by him and that Rhea had paid no part of the indebtedness. He also said that when the firm ceased active business in February, 1929, he was left in charge of its property and affairs, and he sold a boiler and engine for $500 and collected $39.38 owing the partnership, deposited one-half of these sums to Haskell's credit and retained one-half himself. He also testified that he sold $1,350 worth of standing timber to Harper Brothers and 430,292 feet of standing timber to his son, J. M. Edenton, in 1946 for $5.00 per thousand feet and in 1952 he was paid $1,600 by New Jersey Lead and Zinc Company for an option on lands owned by the partnership and by him.
J. M. Edenton testified that in 1946 he and his father purchased and cut 450,000 feet of timber (instead of 430,292 feet) at $5.00 per thousand, and that $5.00 per thousand was a fair price.
Henry W. Harper testified that in 1949 he and his brother purchased $1,400 worth of mixed standing timber from J. T. Edenton at about $5.00 per thousand feet which he said was a fair price.
Section 8-250, Code 1950, provides that the commissioner's report "shall not have the weight given to the verdict of a jury on conflicting evidence * * *," and in passing upon the commissioner's findings of fact, the court is guided by that provision.
Here, however, there is no material conflict in the evidence which was heard by the commissioner and his report has been confirmed in all respects by the court. The judgment confirming the report should not be disturbed unless erroneous principles of law were applied or the judgment is contrary to the evidence. Gilmer Brown, 186 Va. 630, 44 S.E.2d 16.
There is no merit in the contention that there was no corroboration of Edenton's testimony. Recitals in the deed of trust given by the three partners to the bank on February 19, 1929, furnish *421 ample corroboration of Edenton that the payments to the bank by Haskell and Edenton were in fact loans and advances to the partnership. Also tending to corroborate Edenton is the fact that when the sawmill was sold by Edenton for $500, and an item of $39.38 collected, he deposited one half of these sums, i.e., $269.69 to Haskell's credit and retained the balance as a credit upon his claim against the partnership.
"Whether or not corroboration exists and the degree and quality required is to be determined by the facts and circumstances of each case. Trevillian Bullock, 185 Va. 958, 40 S.E.2d 920. Yet it is not necessary that the additional evidence relied upon be of itself sufficient to support a judgment or that it confirm in all particulars that given by him and thus furnish absolute assurance of its truth. It need only be of such character as to aid and strengthen his testimony upon those salient issues that must necessarily be proved to support a judgment and which would otherwise be sustained solely by his testimony. Burton's Ex'r Manson, 142 Va. 500, 129 S.E. 356; Varner White, 149 Va. 177, 140 S.E. 128; Krikorian Dailey, 171 Va. 16, 197 S.E. 442; Shenandoah Valley Nat. Bank Lineburg, 179 Va. 734, 20 S.E.2d 541, and Rorer Taylor, 182 Va. 49, 27 S.E.2d 923." Leckie Lynchburg Trust, etc., Bank, 191 Va. 360, 370, 60 S.E.2d 923.
Rhea's administrator, his heirs and distributees invoke | 8-13, Code 1950, and assert that its five year limitation bars the debts owing to Haskell's administrator and Edenton's executor. The pertinent provisions of that section follow:
"Every action to recover money which is founded upon an award, or on any contract, other than a judgment of recognizance, shall be brought within the following number of years next after the right to bring the same shall have first accrued, that is to say:"
* * *
"If it be upon any other contract express or implied within three years, unless it be an action by one partner against his co-partner for a settlement of the partnership account * * * in * * * which cases the action may be brought until the expiration of five years from the cessation of the dealings in which they are interested together, but not after; * * *" (Emphasis added.)
Appellants insist that "the cessation of the dealings in which" *422 the partners were interested together was when the payments and deeds of trust were made and executed on February 19, 1929.
The evidence shows that on February 19, 1929, the partnership ceased to engage in the business that it had theretofore actively conducted and that on April 13, 1931, it was dissolved by the death of Haskell. Section 50-29, Code 1950. [2] Yet the dissolution did not terminate the partnership, for under | 50-30, Code 1950, that continued until the winding up of its affairs was completed. After February 19, 1929, a boiler and engine were sold by Edenton who had been left in charge of the partnership affairs and property, and in 1946 and 1949, timber was sold from the partnership lands. In 1952 a substantial sum was derived from the sale of an option to purchase partnership property, and the sums derived were credited upon the partnership debt. During this period Edenton had been paying the taxes on the land and the trust deed executed by the partners and in which they were interested was not paid off or released until 1949.
In Foster's Curator Rison, et al., 17 Gratt. (58 Va.) 321, 334, the court construed the phrase "the action may be brought until the expiration of five years from the cessation of the dealings in which they are interested together, but not after," and said:
"The time prescribed by the statute does not begin to run as to any of the partnership dealings until there has been a cessation of all of them. But what acts are comprehended in the word 'dealings' in the meaning of the Code, may be a question of some doubt. Is the word confined to the active operations of the partnership during its continuance, or does it embrace also any act done after its dissolution in winding it up; such as the collection or payment of outstanding debts due to or by the firm, and even good debts due to the firm, outstanding when the suit is brought? I think the word should be construed in the latter and extended sense; otherwise no action or suit could be brought for a settlement of a partnership account after the lapse of five years from the dissolution of the partnership, although its business may not have been wound up for a long time thereafter."
Other decisions and authorities approve and are in accord with this interpretation of the statute. Marsteller Weaver's Adm'x., 1 Gratt. (42 Va.) 391; Jordan Miller, et al., 75 Va. 442; 14 M.J., Partnership, | 56, p. 256, and cases cited; George R. Riddle, et al. Joseph M. Whitehill, 135 U.S. 621, 10 S. Ct. 924, 34 L.ed. 282. *423
Here the evidence shows that the partnership was indebted to Haskell and Edenton and that in 1946 and 1949 timber was cut and sold, and an option was given on its lands in 1952. The trust deeds on the partnership assets were not paid off and released until 1949, and Edenton paid the yearly taxes as they accrued from 1929 until 1952. All of these transactions and payments were made by Edenton who had been left in charge of the partnership property and affairs. Clearly when the bill was filed on April 13, 1953, five years had not then expired from the cessation of dealings in which the partners (or their personal representatives) were interested.
The claims of Haskell's administrator and Edenton's executor against the partnership are not barred by the statute, nor do we think that laches precludes them from recovery. The personal property owned by the partnership was disposed of shortly after the firm ceased its operation. Its remaining property consisted of timber lands with growing timber thereon and there was a probability that valuable minerals were under these lands. The assets were increasing in value, and it would not have been to the best interest of the owners to dispose of the partnership property prematurely. Though there has been delay in settling the partnership affairs and disposing of its property, yet the timber lands have increased in value and the present heirs and distributees of the three original partners have not been harmed by this delay.
"Length of time is not alone a test of staleness, and mere lapse of time, unaccompanied by some circumstances affording evidence of a presumption that the right has been abandoned, is not laches." Branner Branner's Adm'r., 108 Va. 660, 663, 62 S.E. 952.
"Mere delay without more will not constitute laches." Gilley, et al. Nidermaier, 176 Va. 32, 43, 10 S.E.2d 484. 7 M.J., Equity, | 30, p. 53.
Should interest be allowed on the sums due Haskell's and Edenton's personal representatives?
Section 50-18, Code 1950, provides as follows:
"The rights and duties of the partners in relation to the partnership shall be determined, subject to any agreement between them, by the following rules:"
* * *
"(c) A partner, who in aid of the partnership makes any payment or advance beyond the amount of capital which he agreed to contribute, *424 shall be paid interest from the date of the payment or advance. * * *"
The sums due Haskell's administrator and Edenton's executor are clearly stated in the deed of trust of February 19, 1929. The evidence is sufficient to show that the payment to the bank by each partner was a "payment or advance beyond the amount of capital which he agreed to contribute", and there is nothing to indicate that the allowance of interest should be denied.
The decree appealed from is
Affirmed.
NOTES
[1] The company had actually paid $1,600 for the option but it covered 114 acres individually owned by Edenton and by proration on acreage, the commissioner found that the partnership was entitled to $1,298.20 and Edenton to $301.80.
[2] All citations to Title 50, Code 1950, are to The Uniform Partnership Act. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318975/ | 94 Ga. App. 321 (1956)
94 S.E.2d 429
KYLER
v.
THE STATE.
36277.
Court of Appeals of Georgia.
Decided September 5, 1956.
*323 C. C. Crockett, Aretha M. Smith, for plaintiff in error.
W. W. Larsen, Solicitor-General, W. W. Larsen, Jr., contra.
CARLISLE, J.
1, 2. Headnotes 1 and 2 are self-explanatory and require no elaboration.
3. While after verdict the defendant in a criminal case will not be heard to complain of technical defects as to the form of the indictment under which he was tried (Bell v. State, 41 Ga. 589; Davis v. State, 116 Ga. 87, 42 S.E. 382; Lewis v. State, 55 Ga. App. 743, 191 S.E. 278), every defendant in a criminal case is entitled to be tried under an indictment perfect in form and substance. Harris v. State, 58 Ga. 332 (2), 334; Lanier v. State, 5 Ga. App. 472 (63 S.E. 536). Many cases following the rule set forth in Code § 27-701, dealing with the sufficiency of accusations and indictments, have held that an accusation or indictment substantially in the language of the Code is sufficient to withstand demurrer, but that rule has its limitations, is not of universal application, and does not cover all crimes. In Youmans v. State, 7 Ga. App. 101, 113 (66 S.E. 383), this court had the following to say: "In construing . . . [Code § 27-701], in the case of Amorous v. State, 1 Ga. App. 313 (57 S.E. 1000), *324 we said, `It means that an indictment conforming substantially to its requirements will be sufficient, but it is not designed to deny the one accused of crime the right to know enough of the particular facts constituting the alleged offense to be able to prepare for trial.' It is true . . . that `there are many offenses that can be stated in the language of the Code, such as playing cards, selling liquor, or carrying a pistol concealed; there are many other offenses that would not be sufficiently charged if stated merely in the language of the Code, such as murder, Larceny, perjury, etc. A description of these latter offenses or a description of what the defendant did is necessary to make a legal charge, and to enable the defendant to prepare a defense.' A distinction is to be drawn between charges which are violations of purely statutory offenses and those cases which were penalized under the common law. Naturally, where the offense is statutory, the language of the accusation must follow more closely the language of the statute, and be restricted by it more, than where the charge relates to a common-law offense, in which the details must necessarily be amplified in order to cover the definition of the common-law offense [which has been codified as such into our law]. Reference is made to this difference in United States v. Simmons, 96 U.S. 360 (24 L. ed. 819), in which the court said: `Where the offense is purely statutory, having no relation to the common law, it is, as a general rule, sufficient in the indictment to charge the defendant with acts coming fully within the statutory description, in the substantial words of the statute, without any further expansion of the matter.' `But to this general rule, there is the qualification, fundamental in the law of criminal procedure, that the accused must be apprised by the indictment, with reasonable certainty of the nature of the accusation against him, to the end that he may prepare his defense and plead the judgment as a bar to any subsequent prosecution for the same offense.' `An indictment not so framed is defective, although it may follow the language of the statute.'"
In Walthour v. State, 114 Ga. 75 (39 S.E. 872), it is stated: "When the subject matter of a larceny is horses, cows, or hogs, the penal Code prescribes certain elements of description, but in the case of other personal chattels, the rule of the common law prevails. Mr. Wharton, in his work on Criminal Pleading and *325 Practice, § 206, states the rule thus: `When, as in larceny, . .. personal chattels are the subject of an offense, they must be described specifically by the names usually appropriated to them, and the number and value of each species or particular kind of goods stated.' In the case of Davis v. State, 40 Ga. 229, Warner, J., quotes this principle from Archbold's Criminal Pleading, in almost the identical words, and states that the principle of the common law [with reference to simple larceny] is still of force in this State. See, in this connection, Rapalje's Larceny, § 75; 2 Bishop's Criminal Procedure, § 699. Mr. Bishop, in his work just cited, states the object of the description to be `to individualize the transaction and enable the court to see that they are, in law, the subjects of larceny. . . The description should be simply such as in connection with the other allegations, will affirmatively show the defendant to be guilty, will reasonably inform him of the instance meant and put him in a position to make the needful preparations to meet the charge.' See sanders v. State, 86 Ga. 724 [12 S.E. 1058], where this author's rule is quoted with approval. Mr. Wharton, in his work above quoted, § 208, further says: `There must be such certainty as will enable the jury to say whether the chattel proved to be stolen is the same as that upon which the indictment is founded.' Still another reason given why the description should be definite is, that a judgment may be pleaded in bar of a subsequent prosecution for the same offense. 12 Enc. Pl. & Pr. 979." In an extremely well reasoned and documented case, this court had the following to say: "In what have been termed `compound larcenies' (Melvin v. State, 120 Ga. 490, 491, 48 S.E. 198), very meager descriptions of the property stolen have been held sufficient even against a special demurrer. . . It being deemed in such cases that `the allegations in reference to the aggravating fact serve to individualize the transaction, and a more general description of the property is permissible . . . than would be permitted in indictments for simple larceny.'" Pharr v. State, 44 Ga. App. 363 (161 S.E. 643). See also, in this connection, Burns v. State, 191 Ga. 60, 63 (11 S.E.2d 350). At common law, when money was the subject of simple larceny, great specificity was required. The only cases from the appellate courts of this State dealing with the sufficiency of the description of money in accusations *326 and indictments which our research has disclosed are the following: Berry v. State, 10 Ga. 511 (larceny from the house); Bell v. State, 41 Ga. 589 (larceny from the person); Wilson v. State, 66 Ga. 591 (larceny from the person); Hillsman v. State, 68 Ga. 836 (burglary); Jackson v. State, 76 Ga. 551, 571 (embezzlement); Crofton v. State, 79 Ga. 584 (4 S.E. 333) (larceny after trust); Roberts v. State, 83 Ga. 369 (9 S.E. 675) (larceny of money); Allen v. State, 86 Ga. 399 (12 S.E. 651) (larceny from the house); Cody v. State, 100 Ga. 105 (28 S.E. 106) (larceny after trust); Humphries v. State, 100 Ga. 260 (28 S.E. 25) (robbery); Johnson v. State, 119 Ga. 257 (45 S.E. 960) (larceny of money); Cannon v. State, 125 Ga. 785 (54 S.E. 692) (larceny from the house); Frederick v. State, 127 Ga. 35 (55 S.E. 1044) (larceny from the house); Burns v. State, 191 Ga. 60 (11 S.E.2d 350) (robbery); Maxwell v. State, 9 Ga. App. 875 (72 S.E. 445) (robbery); McNatt v. State, 27 Ga. App. 642 (109 S.E. 514) (larceny of money); Camp v. State, 31 Ga. App. 737 (122 S.E. 249) (embezzlement); Bivins v. State, 47 Ga. App. 391 (170 S.E. 513) (embezzlement); Lewis v. State, 82 Ga. App. 280 (60 S.E.2d 663) (embezzlement); Tripp v. State, 89 Ga. App. 335 (79 S.E.2d 591) (embezzlement). With the exception of the Roberts, Johnson, and McNatt cases, each of the cases which we have cited above involves the adequacy of the description of money involved in compound larceny, and those cases may be excluded from our consideration under the rule stated in the Pharr and Melvin cases, supra.
In the Johnson case, supra (headnote 2) it was held that "an indictment charging a person with stealing `one hundred and twenty dollars in paper money, to wit, two twenty dollar bills, five ten dollar bills, and six five dollar bills', is not subject to demurrer on the ground that it does not disclose what kind of money was stolen, [the Supreme Court] . . . having held, in Allen v. State, 86 Ga. 399 that such a description of money means bank bills."
In the McNatt case, supra, under an indictment for larceny of money in almost the exact words of the Johnson case, the indictment was, after verdict, held to sufficiently describe the money.
In the Roberts case, supra, Chief Justice Bleckley suggests that the description, "one hundred dollars in greenback bills of the *327 value of one hundred dollars," is demurrable as being too general in the matter of description, but ruled that this should have been taken advantage of by demurrer.
Our law, with reference to simple larceny, does not find its origin in common sense, but in the common law which was frequently based upon custom rather than reason. As long as 66 years ago, Justice Bleckley, in Allen v. State, 86 Ga. 399, pointed out the rather chaotic condition of our law on the subject of larceny a condition which has not been remedied to this day when speaking for the Supreme Court, he said: "The penal Code is in an unfortunate condition with respect to its provisions on the subject of larceny. By section 4414 [Code § 26-2630], larceny from the house of any `goods, money, chattels, wares or merchandise, or any other article or thing, under the value of $50' is punishable as a misdemeanor only, the penalty being that prescribed in section 4310. [By the Code of 1882, the punishment for the larceny of less than $50 was prescribed by what is now Code § 26-605 (as for a misdemeanor). The punishments for larceny from the house are now contained in Code § 26-2630.] By section 4406 [Code § 26-2616], simple larceny, where the property stolen is a note, due bill, bank bill, or any paper securing the payment of money or other valuable thing, is punishable as a felony by imprisonment in the penitentiary from one to four years. The stealing of a bank note for one dollar outside of any building or structure is a felony, whilst stealing from a house anything whatever under the value of $50, is only a misdemeanor. Worse still, according to the Code as it now stands, the stealing of a million of dollars in gold or silver lying loose out of doors would be a mere misdemeanor, no punishment being prescribed for it save that laid down in section 4310 and this would be reached by virtue of section 4409 [Code § 26-2625] under the phraseology `all simple larcenies or thefts of the personal goods of another, not mentioned or particularly designated in this Code.' The larceny of paper money, under the description of bank bills, notes, etc., is mentioned and particularly designated, but not the larceny of metallic money or of money generally, unless the larceny is committed in a house, etc., or from the person."
While it may well be that the other averments of the indictment *328 sufficiently particularized the larceny so as to inform the defendant of the transaction meant and to enable him to plead a judgment in that case in bar to a prosecution for the same transaction (see Dean v. State, 9 Ga. App. 571, 71 S.E. 932), he, by special demurrer, demanded to know whether the money alleged to have been stolen by him was in silver or in currency. To this information, under the ruling in the Allen case, supra, we think he was entitled so as to enable him to prepare his defense properly. As has been pointed out, the larceny of currency outside a house is a felony, while the larceny of coin (gold, silver, or copper) is merely a misdemeanor. Whether the defendant is charged with a felony or a misdemeanor, bears strongly upon the conduct of his trial, especially with respect to the composition of the jury panels and the number of challenges allowed, and the preparation of his defense. Since the defendant was by the ruling of the trial court deprived of this information before going to trial, we must hold that the overruling of the special demurrer calling for this information was error.
The averments in the indictment that the person to whom the money belonged received it as wages for her work in Georgia permits of no other inference than that the money was legal tender issued by the United States Government.
Judgment reversed. Gardner, P. J., and Townsend, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318971/ | 677 S.E.2d 377 (2009)
METTS
v.
The STATE.
No. A09A0202.
Court of Appeals of Georgia.
April 6, 2009.
*380 Charles H. Frier, Smyrna, for appellant.
Paul L. Howard Jr., Dist. Atty., David K. Getachew-Smith, Asst. Dist. Atty., for appellee.
BERNES, Judge.
This case arises out of allegations that Tyson Carmin Metts forced his girlfriend's minor daughter to orally sodomize him several times over a three-year period. The jury found Metts guilty of aggravated child molestation, child molestation, and false imprisonment. The trial court denied his amended motion for new trial. On appeal, Metts contends that there was insufficient evidence to convict him; that his due process rights were violated because the state acted with an improper motive in reindicting him; that the false imprisonment count of the indictment lacked the requisite specificity; that his false imprisonment and child molestation convictions should have been merged into his aggravated child molestation conviction; that his conviction and felony sentence for child molestation were improper based on the rule of lenity; that the trial court erred by charging the jury on prior consistent statements; and that the trial court failed to properly recharge on false imprisonment in response to a question from the jury. Additionally, Metts contends that he was denied effective assistance from his trial counsel. Finding no reversible error, we affirm.
1. Following a criminal conviction, a defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the jury's verdict. Neugent v. State, 294 Ga.App. 284(1), 668 S.E.2d 888 (2008). "We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable *381 doubt." (Citations and punctuation omitted.) Id. See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
So viewed, the evidence showed that Metts was the boyfriend of the victim's mother. He lived with the mother and her four minor children, including the victim, in an apartment and later in a house located in Fulton County. Metts often was home alone with the children while the mother was away at work.
On at least six separate occasions over a three-year period, Metts forced the victim to perform oral sex on him until he ejaculated in her mouth. While the victim was forced to perform oral sex, Metts sometimes would play pornographic movies on the television. On one occasion, Metts locked the door to the house and would not let the victim leave until she had engaged in oral sex. These acts of sexual abuse occurred when the victim was between the ages of six and nine years old.
During this time period, the victim told her mother several times that Metts was forcing her to perform oral sex on him. Eventually, after the victim provided an accurate description of Metts's penis, the mother forced Metts out of the home and took the victim to the hospital. The victim subsequently described the sexual abuse that had occurred to a police investigator and a forensic interviewer. As a result, the victim and her siblings were removed from the home, and both the mother and Metts were arrested and indicted for offenses relating to the sexual abuse.[1]
At Metts's trial, the state relied upon the testimony of the victim, her mother, and the police investigator and introduced into evidence a videotape of the victim's forensic interview. Two of the victim's siblings also testified that on one occasion, they had peeked into their mother's bedroom and had seen Metts sitting on the bed with the victim's head going up and down between his legs. In contrast, Metts took the stand and denied that he had ever forced the victim to perform oral sex or watch pornographic movies with him.
After hearing the testimony and viewing the videotaped forensic interview, the jury convicted Metts of aggravated child molestation, child molestation, and false imprisonment. Arguing that "[t]oo many doubts remain about this case," Metts now challenges the sufficiency of the evidence supporting his three convictions. We conclude, however, that any rational trier of fact was entitled to find Metts guilty beyond a reasonable doubt of the offenses as charged. Jackson, 443 U.S. 307, 99 S. Ct. 2781.[2]
(a) Aggravated Child Molestation. "A person commits the offense of child molestation when he or she does an immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person." OCGA § 16-6-4(a). "Child molestation advances to aggravated child molestation with the addition of either physical injury to the child or sodomy. Sodomy, in turn, is defined as any sexual act involving the sex organs of one person and the mouth or anus of another." (Footnotes omitted.) Wright v. State, 259 Ga.App. 74, 77(2), 576 S.E.2d 64 (2003). See OCGA §§ 16-6-2(a)(1); 16-6-4(c). In the present case, the indictment averred that Metts committed aggravated child molestation "by placing [his] male sex organ into and upon the mouth of [the victim], with the intent to arouse and satisfy [his] sexual desires."
The victim testified at trial that Metts forced her to perform oral sex on him until he ejaculated on at least six separate occasions. "The testimony of a single witness is generally sufficient to establish a fact." OCGA § 24-4-8. Furthermore, the videotaped forensic interview and the testimony of *382 the police investigator and the victim's mother concerning what the victim told them were admissible as substantive evidence under the Child Hearsay Statute, OCGA § 24-3-16.[3] See, e.g., Lamb v. State, 293 Ga.App. 65, 66, 666 S.E.2d 462 (2008). Finally, the jury was entitled to consider the eyewitness testimony of two of the victim's siblings to one of the incidents of forced oral sodomy. Accordingly, there was more than sufficient evidence to support Metts's aggravated child molestation conviction. Jackson, 443 U.S. 307, 99 S. Ct. 2781. See OCGA §§ 16-6-2(a)(1); 16-6-4(c); Mullis v. State, 292 Ga.App. 218, 218-219(1), 664 S.E.2d 271 (2008); Berman v. State, 279 Ga.App. 867, 869(1), 632 S.E.2d 757 (2006).
(b) Child Molestation. The indictment averred that Metts committed child molestation "by causing [the victim] to view video images depicting adults engaged in sexually explicit conduct while in [Metts's] presence, with the intent to arouse and satisfy [Metts's] sexual desires." Metts argues that there was insufficient evidence presented at trial that he "caus[ed]" the victim to view the pornographic video images. His argument is without merit.
The victim testified that she watched a "nasty movie" depicting sexual intercourse between a man and woman on more than one occasion in the company of Metts. In turn, the police investigator who interviewed the victim testified that the victim stated that Metts "had called her in to the bedroom, forced her to put his penis in her mouth, and he also had a pornographic movie on at that time that he was watching while ... he had her doing this to him." The investigator further testified that the victim told him that Metts "forced her to perform oral sex on him while watching a pornographic movie." Given this testimony, it cannot be said that Metts played a merely passive role in the victim's watching of the pornographic movie. Sufficient evidence was provided by the state to support Metts's conviction for child molestation. Jackson, 443 U.S. 307, 99 S. Ct. 2781. See OCGA § 16-6-4(a); Mullis, 292 Ga.App. at 218-219(1), 664 S.E.2d 271; Berman, 279 Ga.App. at 869(1), 632 S.E.2d 757.
(c) False Imprisonment. Tracking the language of the criminal statute,[4] the indictment averred that Metts committed false imprisonment in that "[he] did unlawfully detain [the victim], without legal authority and in violation of the personal liberty of said [victim]." The police investigator testified that the victim told him that on one occasion, Metts "had locked the house, would not let her out, called her into the bedroom, and forced her to perform oral sex on him." The victim did not herself testify that Metts ever locked her in the house.
Metts contends that the investigator's testimony was inadmissible hearsay because the victim's statement that she was locked in the house was not a statement "describing any act of sexual contact or physical abuse performed with or on the child," as required by the Child Hearsay Statute, OCGA § 24-3-16. As such, Metts contends that there was no competent evidence establishing the crime of false imprisonment. We are unpersuaded.
It is true that the victim's statement that Metts locked her in the house and would not let her leave does not in itself describe an act of sexual contact or physical abuse if considered in a vacuum. But a child's statement is admissible under the Child Hearsay Statute if it is "an inextricable part of the child's description of the act of sexual abuse at issue." In the Interest of B.H., 295 Ga.App. 297, 303(6)(a), 671 S.E.2d 303 (2008). See also Brewton v. State, 216 Ga.App. 346, 350(5), 454 S.E.2d 558 (1995), rev'd on other grounds, 266 Ga. 160, 465 S.E.2d 668 (1996) (concluding that "statements as to the circumstances in which appellant chased her son down the hall while carrying a maul *383 constitute[] statements regarding `any act' of physical abuse within the meaning of the [Child Hearsay Statute]"). And when read in context rather than in isolation, the victim's statement clearly was part of the victim's description of an act of sexual abuse, namely, Metts's act of forcing her to perform oral sex on him. Hence, the investigator's testimony concerning the victim's statement was admissible as substantive evidence under the Child Hearsay Statute and was sufficient, standing alone, to support the false imprisonment conviction. See id. See also Jackson, 443 U.S. 307, 99 S. Ct. 2781; Turner v. State, 253 Ga.App. 760, 761(1), 560 S.E.2d 539 (2002) ("evidence that [the defendant] confined 12-year-old T.C. by closing the door, turning off the light, standing in front of her as she sat on a table, and pushing her back, rendering her unable to resist" established false imprisonment).
2. Metts next contends that his due process rights were violated because the state acted with an improper motive in reindicting him. The record reflects that Metts was originally indicted on October 8, 2004, for the three charged offenses. The indictment averred that the false imprisonment and child molestation crimes occurred on August 3, 2004. At the request of the state, the indictment was later placed on the dead docket, and Metts was reindicted on October 12, 2004. The second indictment included the same three counts against Metts but added one count against the mother for cruelty to children. The mother subsequently entered an Alford plea on the cruelty to children count. The second indictment also was placed on the dead docket, and Metts was indicted for a third time on October 11, 2005. The third indictment removed the count against the mother and modified the false imprisonment and child molestation counts to allege that the two crimes occurred "between the 1st day of December, 2001 and the 3rd day of August, 2004, the exact dates unknown to the grand jurors."
Metts has failed to prove any due process violation. There is no statute or case law that as a general rule precludes the state from reindicting a defendant on added or modified charges, as long as jeopardy has not yet attached to the first indictment, which undisputably had not occurred here. Zinnamon v. State, 261 Ga.App. 170, 173(2)(a), 582 S.E.2d 146 (2003). See Larochelle v. State, 219 Ga.App. 792, 794(2), 466 S.E.2d 672 (1996) ("[T]he existence of a prior indictment generally is not grounds for quashing the second indictment, although the state may be required to elect upon which indictment it will proceed.") (citation and punctuation omitted).[5] As the Supreme Court of the United States has emphasized,
[a] prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct.... [T]he initial charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution.
(Footnotes omitted). United States v. Goodwin, 457 U.S. 368, 382(III), 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982).
An exception to this general rule exists where the subsequent indictment increases the severity of the charges in response to the defendant's exercise of certain procedural rights, which raises the appearance of retaliation or prosecutorial vindictiveness. See Blackledge v. Perry, 417 U.S. 21, 25-28(I), 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974); Larochelle, 219 Ga.App. at 794(2), 466 S.E.2d 672. That, however, is not the case here, since the third indictment did not increase the severity of the charges against Metts. Nor was the third indictment filed in response to Metts's exercise of any of his procedural rights. Rather, the state reindicted Metts a third time in response to the mother's Alford plea and in order to clarify the possible time *384 period of the victimization. Metts, therefore, is unable to support his contention that his due process rights were violated when the state exercised its discretion to reindict him. See Lopez v. State, 267 Ga.App. 178, 179-180(1), 598 S.E.2d 898 (2004); Zinnamon, 261 Ga.App. at 173(2)(a), 582 S.E.2d 146; Larochelle, 219 Ga.App. at 794(2), 466 S.E.2d 672.
3. Metts further argues that the false imprisonment count of the third indictment lacked the requisite level of specificity.
[A] contention that a count of the indictment lacks sufficient specificity is an attack on the form of the indictment, which must be addressed by filing a special demurrer to the indictment. Such a special demurrer must be filed before pleading not guilty to the indictment; otherwise, the matter is waived. Raising the issue for the first time on appeal as [Metts] has done here is too late.
(Citations and punctuation omitted.) Smith v. State, 282 Ga.App. 339, 341-342(1), 638 S.E.2d 791 (2006). See Christian v. State, 288 Ga.App. 546, 548-549(2), 654 S.E.2d 452 (2007).
4. According to Metts, the trial court erred in failing to merge his false imprisonment conviction into his aggravated child molestation conviction. We discern no error.
Under Georgia law, convictions merge and multiple punishment is precluded if "[o]ne crime is included in the other." OCGA § 16-1-7(a)(1). But "[t]he rule prohibiting more than one conviction if one crime is included in the other does not apply unless `the same conduct' of the accused establishes the commission of multiple crimes." Waits v. State, 282 Ga. 1, 4(2), 644 S.E.2d 127 (2007). See Drinkard v. Walker, 281 Ga. 211, 212-213, 636 S.E.2d 530 (2006). Applying these principles, we conclude that the trial court was not required to merge the false imprisonment and aggravated child molestation convictions.
The indictment averred that Metts committed false imprisonment by unlawfully detaining the victim in violation of her personal liberty and committed aggravated child molestation by forcing the victim to perform oral sex on him. As to false imprisonment, there was evidence that on one occasion, Metts locked the victim in the home and would not let her leave. As to aggravated child molestation, there was evidence that Metts forced the victim to perform oral sex on him on repeated occasions spanning several years. Since the false imprisonment and aggravated child molestation convictions could be sustained based on different conduct, separate convictions were appropriate. See Waits, 282 Ga. at 4(2), 644 S.E.2d 127. See also Daniels v. State, 278 Ga.App. 332, 337(3), 629 S.E.2d 36 (2006) (no merger when the victim recounted multiple incidents of the acts alleged in the indictment); Kirby v. State, 187 Ga.App. 88, 89(2), 369 S.E.2d 274 (1988) (same).
5. Metts contends that the trial court also erred in failing to merge his aggravated child molestation and child molestation convictions because the latter crime was a lesser included offense of the former crime. Again, we discern no error.
While child molestation may be a lesser included offense of aggravated child molestation, where separate and distinct acts of molestation occur at different locations or on different dates, no merger occurs. See Brewer v. State, 251 Ga.App. 77, 78-79, 553 S.E.2d 363 (2001) (child molestation did not merge into aggravated child molestation because offenses were proven by different acts of molestation). Cf. Miller v. State, 226 Ga. App. 509, 515(5), 486 S.E.2d 911 (1997) (concluding that while child molestation may be a lesser included offense of rape, no merger occurs "where separate and distinct acts of molestation occur which are short of rape or where they occur at different locations or on different dates") (citation and punctuation omitted); Walker v. State, 214 Ga.App. 777, 780(6), 449 S.E.2d 322 (1994) (reaching same conclusion with respect to child molestation and statutory rape). The indictment alleged, and the evidence showed, that Metts committed child molestation by causing the victim to view pornographic video images with the intent to arouse and satisfy his sexual desires, and committed aggravated child molestation *385 by forcing the victim to perform oral sex on him. The aggravated child molestation and child molestation convictions were established by different acts of molestation; no merger, therefore, occurred. See id.
6. Metts maintains that his conviction and felony sentence for child molestation were improper because his alleged conduct also violated OCGA § 16-12-103(a)(1), which makes it a misdemeanor of a high and aggravated nature to furnish or disseminate harmful material to a minor.[6] Metts argues that under the rule of lenity, he could be prosecuted only for the misdemeanor offense. We disagree.
The rule of lenity entitles a defendant to receive the lesser of two penalties where the identical conduct would support either a felony or misdemeanor conviction. Velasquez v. State, 276 Ga.App. 527, 528-529(1), 623 S.E.2d 721 (2005); Quaweay v. State, 274 Ga.App. 657, 658, 618 S.E.2d 707 (2005). See Dixon v. State, 278 Ga. 4, 6(1)(a), 596 S.E.2d 147 (2004) (applying rule of lenity where "the [s]tate retained the discretion to prosecute the exact same conduct as either misdemeanor statutory rape or felony child molestation"). Here, however, the two offenses at issue require different conduct. The crime of child molestation requires, among other things, proof of the intent to arouse or satisfy the sexual desires of either the child or the perpetrator, see OCGA § 16-6-4(a), which is not a required element of the crime of furnishing or disseminating harmful material to a minor, see OCGA § 16-12-103(a)(1), and so the rule of lenity does not apply. See Walker v. State, 289 Ga.App. 879, 881-882(5), 658 S.E.2d 375 (2008) (rule of lenity inapplicable because first degree forgery required intent to defraud, which was not a required element of the false identification offenses of which the defendant was charged); Velasquez, 276 Ga. App. at 528-529(1), 623 S.E.2d 721 (rule of lenity inapplicable because second degree forgery required intent to defraud, which was not a required element of the separate offense of possession of a false identification document).
7. Metts argues that the trial court erred by charging the jury on prior consistent statements. In his view, the testimony of the police investigator concerning what the victim told him and the videotape of the victim's forensic interview were not admissible as prior consistent statements, rendering a charge on such statements improper. But regardless of whether the investigator's testimony and videotaped interview could be admitted as prior consistent statements, they were admissible under the Child Hearsay Statute, OCGA § 24-3-16, as "statement[s] made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another." See, e.g., Lamb, 293 Ga.App. at 66, 666 S.E.2d 462. Resultantly, any error in charging on prior consistent statements was harmless. See Whitaker v. State, 293 Ga. App. 427, 429-430(3), 667 S.E.2d 202 (2008).[7]
8. Metts further asserts that the trial court failed to properly recharge on false imprisonment in response to a question from the jury. We do not agree.
In its jury charge, the trial court properly instructed the jury on the elements of false imprisonment. During its subsequent deliberations, the jury submitted the following note to the court: "Please define false imprisonment Can it be emotional or just i.e. locked door?" In response, the trial court recharged the jury on the elements of false imprisonment and then instructed the jury to consider that definition of the offense, in conjunction with the rest of the charges and *386 the evidence as the jury found it to be, to determine whether Metts was guilty of false imprisonment. The trial court did not elaborate further.
"[T]his Court has traditionally deferred to the sound discretion of trial court judges in matters concerning the scope of a requested recharge." (Footnote omitted.) Duffie v. State, 273 Ga. 314, 316-317(3), 540 S.E.2d 194 (2001). Having reviewed the trial court's initial charge and its recharge to the jury, we are confident that the trial court's recharge did not mislead or confuse the jurors or otherwise curtail the jury's consideration of the evidence. The trial court did not abuse its discretion in its recharge to the jury. See id. at 316(2), 540 S.E.2d 194; Madison v. State, 281 Ga. 640, 643(3), 641 S.E.2d 789 (2007).
9. Lastly, Metts contends that he was denied effective assistance from defense counsel in several respects.
The two-prong test for determining the validity of a claim of ineffectiveness of counsel provided in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), asks whether counsel's performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel's deficiency.
(Citation omitted.) Jones v. State, 289 Ga. App. 219, 222(2), 656 S.E.2d 556 (2008). "We must affirm a trial court's finding that a defendant has not been denied effective assistance of counsel unless it is clearly erroneous." (Citation and punctuation omitted.) Bogan v. State, 249 Ga.App. 242, 244(2), 547 S.E.2d 326 (2001).
(a) All three counts of the third indictment averred that the crimes occurred between December 1, 2001, and August 3, 2004. Metts argues that his defense counsel was ineffective in failing to file a pretrial demurrer to require the state to identify a more specific date for the charged offenses. We do not agree because
[Metts] [has] not demonstrate[d] that the length of the period in which the indictment alleged the crimes were committed materially affected his ability to present a defense, which did not rely on an alibi or other time sensitive claim. Thus, even if the indictment was subject to a special demurrer, [Metts] failed to demonstrate a reasonable likelihood that, but for defense counsel's failure to demur to the indictment, the outcome of the trial would have differed.
(Footnote omitted.) Robbins v. State, 290 Ga.App. 323, 329(4)(a), 659 S.E.2d 628 (2008). Metts thus cannot succeed on the prejudice prong of his ineffective assistance claim.
(b) The police investigator testified that after he arrived at the hospital where the victim had been taken by her mother, the mother stated to him that the victim had told her several times that Metts had forced her to perform oral sex on him. Metts argues that his defense counsel was ineffective in failing to object on hearsay and double hearsay grounds to the investigator's testimony concerning what the mother had told him that the victim had told her. We are unpersuaded.
While the investigator's testimony was double hearsay, each layer of hearsay was admissible under the applicable rules of evidence. First, the underlying out-of-court statement of the victim to her mother concerning what Metts had done to her was admissible under the Child Hearsay Statute, OCGA § 24-3-16. See Lopez v. State, 291 Ga.App. 210, 212(1), 661 S.E.2d 618 (2008); Manders v. State, 281 Ga.App. 786, 788(1), 637 S.E.2d 460 (2006). Second, the mother's out-of-court statement to the investigator was itself admissible as a prior inconsistent statement of the mother, since the mother testified that the victim only told her once that Metts was forcing her to perform oral sex on him. See Jackson v. State, 258 Ga. 810, 811(3), 375 S.E.2d 454 (1989); Jackson v. State, 292 Ga.App. 312, 314(1), n. 5, 665 S.E.2d 20 (2008). Any objection to the investigator's testimony would have been without merit, and so Metts cannot establish the deficiency prong of his ineffective assistance claim. See Henry v. State, 279 Ga. 615, 617(3), 619 S.E.2d 609 (2005) ("Failure to make a meritless objection cannot be evidence *387 of ineffective assistance.") (citations and punctuation omitted).
Additionally, even if defense counsel was deficient in failing to object to the investigator's testimony, Metts cannot establish that he was prejudiced as a result. The victim herself testified that she told her mother several times that Metts had forced her to perform oral sex on him. Thus, the police investigator's testimony was cumulative of other legally admissible testimony from the victim which established that the mother had been informed on several occasions of the forced sodomy.[8] See Kirkland v. State, 292 Ga.App. 73, 76(3)(b), 663 S.E.2d 408 (2008) (no ineffective assistance of counsel where erroneous admission of hearsay is cumulative of "legally admissible evidence of the same fact [properly] introduced"). Moreover, the victim's testimony that Metts had forced her to perform oral sex on him was corroborated by the eyewitness testimony of two of her siblings. Under these circumstances, Metts has failed to demonstrate that "there is a reasonable probability that the outcome of the [trial] would have been different, but for counsel's [alleged] deficiency." Jones, 289 Ga.App. at 222(2), 656 S.E.2d 556.
(c) According to Metts, his defense counsel was ineffective in failing to request that the jury be charged on the misdemeanor offense of furnishing or disseminating harmful material to a minor, OCGA § 16-12-103(a)(1), which he contends was a lesser included offense of the child molestation count. We disagree because the trial court would not have been required to give such a charge, even if furnishing or disseminating harmful material to a minor was a lesser included offense, and even if defense counsel had requested a charge on it.
"The failure to give a requested charge on a lesser included offense when the evidence warrants it is error." (Citation omitted.) Damare v. State, 257 Ga.App. 508, 512(2), 571 S.E.2d 507 (2002). But "[w]here, as here, the evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense." (Citations and punctuation omitted.) Jackson v. State, 213 Ga.App. 170, 171-172(2)(b), 444 S.E.2d 126 (1994). Through the testimony of the victim and the police investigator, the state presented evidence of the completed offense of child molestation based on Metts causing the victim to view pornographic video images with the intent to arouse and satisfy his sexual desires. In contrast, Metts took the stand and denied ever showing pornographic video images to the victim. "Contrary to [Metts's] argument, the evidence showed the commission of the completed offense[] as charged or the commission of no offense," and so the trial court would not have erred by declining to charge the jury on the alleged lesser offense. Huckeba v. State, 217 Ga.App. 472, 475-476(3), 458 S.E.2d 131 (1995). See also Tyler v. State, 279 Ga.App. 809, 811-812(2), 632 S.E.2d 716 (2006), overruled in part on other grounds, Schofield v. Holsey, 281 Ga. 809, 812(II), n. 1, 642 S.E.2d 56 (2007); Close v. State, 195 Ga.App. 652, 655(4), 394 S.E.2d 563 (1990). Therefore, Metts cannot satisfy the deficiency prong of his ineffective assistance claim, since any request to charge on furnishing or disseminating harmful material to a minor would have been without merit. See Shafer v. State, 285 Ga.App. 748, 751(3), 647 S.E.2d 274 (2007) (noting that "trial counsel [is] not deficient for failing to pursue meritless motions") (citation omitted).
(d) We have reviewed Metts's remaining ineffective assistance claims, which are predicated on the same claims of error discussed in prior divisions of this opinion, and find them to be without merit.
Judgment affirmed.
SMITH, P.J., and PHIPPS, J., concur.
NOTES
[1] Ultimately, the mother entered a plea of guilty to one count of cruelty to children in the third degree pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
[2] To the extent that Metts's sufficiency argument is predicated on alleged discrepancies in the witnesses' testimony, we note that "[a] jury is authorized to believe or disbelieve all or any part of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before it." (Citation and punctuation omitted.) Bilow v. State, 279 Ga.App. 509, 511-512(1), 631 S.E.2d 743 (2006).
[3] OCGA § 24-3-16 provides:
A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another ... is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.
[4] OCGA § 16-5-41(a) provides: "A person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority."
[5] Compare OCGA § 17-7-53.1 ("If, upon the return of two `true bills' of indictments or presentments by a grand jury on the same offense, charge, or allegation, the indictments or presentments are quashed for the second time, whether by ruling on a motion, demurrer, special plea or exception, or other pleading of the defendant or by the court's own motion, such actions shall be a bar to any future prosecution of such defendant for the offense, charge, or allegation.") (emphasis supplied).
[6] OCGA § 16-12-103(a)(1) provides:
It shall be unlawful for any person knowingly to sell or loan for monetary consideration or otherwise furnish or disseminate to a minor:... Any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image of a person or portion of the human body which depicts sexually explicit nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors[.]
A person convicted of this offense is guilty of a misdemeanor of a high and aggravated nature. OCGA § 16-12-105.
[7] We note that "the better practice is for the trial court not to charge at all on prior consistent statements and leave the matter to the arguments of counsel." Whitaker, 293 Ga.App. at 430(3), 667 S.E.2d 202.
[8] "[W]here a witness testifies as to what he or she told another person, it is not hearsay." (Citation and punctuation omitted.) Smashum v. State, 293 Ga.App. 41, 42(1), 666 S.E.2d 549 (2008). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743190/ | 301 So. 2d 486 (1974)
Manuel DURAN, Appellant,
v.
The STATE of Florida, Appellee.
No. 74-153.
District Court of Appeal of Florida, Third District.
October 15, 1974.
Philip Carlton, Jr., Miami, for appellant.
Robert L. Shevin, Atty. Gen., and William L. Rogers, Asst. Atty. Gen., for appellee.
Before HENDRY and NATHAN, JJ., and CARROLL, CHARLES A., Associate Judge.
PER CURIAM.
The appellant was charged by information with the crime of grand larceny. Upon trial before a jury, he was found guilty and was so adjudged and sentenced to imprisonment for a term of five years. On appeal therefrom it is contended by the appellant that the trial court erred by denying his motions at the close of the presentation of evidence by the State and at the close of the case, on the ground that the evidence upon which the conviction was based, which for the most part was circumstantial, was insufficient to sustain the conviction.
The appellate courts of this State have held repeatedly that to sustain conviction in circumstantial evidence cases the inferences reasonably to be drawn from the evidence must not only be consistent with guilt of the accused but inconsistent with every reasonable hypothesis of his innocence. However, in such cases the test to be applied on motion for judgment of acquittal and on review of the denial of such a motion is not simply whether in the opinion of the trial judge or of the appellate court the evidence fails to exclude every *487 reasonable hypothesis but that of guilt, but rather whether the jury might reasonably so conclude. Amato v. State, Fla.App. 1974, 296 So. 2d 609; Vick v. United States, 5th Cir.1954, 216 F.2d 228; United States v. Gaviria, 5th Cir.1973, 471 F.2d 1181, 1183.
Having reviewed the evidence in the light of the above pronounced principles of law applicable thereto, we hold to be without merit the appellant's contention of the insufficiency of the evidence to sustain the conviction. No useful purpose would be served by including a detailed recitation of the evidence here.
No reversible error having been shown, the judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2203310/ | 266 Cal.App.2d 723 (1968)
JOSEPH H. FREEMAN et al., Plaintiffs and Respondents,
v.
AFFILIATED PROPERTY CRAFTSMEN, LOCAL 44 et al., Defendants and Appellants; JACK SHULTZ et al., Interveners and Appellants.
Civ. No. 31343.
California Court of Appeals. Second Dist., Div. Five.
Oct. 22, 1968.
Sidney Sampson and David J. Sachs for Defendants and Appellants and for Interveners and Appellants.
Joseph H. Freeman and Velma B. Freeman, in pro. per., for Plaintiffs and Respondents.
STEPHENS, J.
This is an appeal taken by three of many defendants in a quiet title action decreeing fee title to an undivided interest to be in plaintiffs and declaring that no interest in and to the property involved is had by defendants, or any of them.
For analysis of this appeal, except as may necessarily be included within the general statement of facts, we will discuss only the claims and defenses of plaintiffs Joseph H. and Velma B. Freeman; plaintiffs in intervention Jack and Pearl Shultz; defendants William L. and Celeste M. Hoerber and Affiliated Property Craftsmen Local 44.
On and before February 16, 1900, one Batcheller, as administrator of the John H. Packer estate, was the owner in fee simple and in possession of all of the lands involved in this dispute. On February 16, 1900, in an action entitled Beverage v. Manning, a judgment of condemnation was recorded, condemning the strip of land 35 feet wide and traversing the whole of the property (approximately 600 feet in length), subsequently to be described as the "A. Gardner West of Hollywood Subdivision." By this condemnation decree, there was condemned an easement for railroad right of way only, the fee title not being condemned. Thereafter, distribution of the property involved from the Packer estate was made to Mary M. Packer (29/30ths) and William C. Packer, Jr. (1/30th) of undivided interests of "The west thirty five (35) acres of the fractional north east quarter (N.E. 1/4) of said Section nine (9)." By two deeds, one of March 23, 1901 from Mary M. Packer and one of May 13, 1901 *726 from William C. Packer, Jr. (by guardian), the referred-to 35-acre property was conveyed in fee simple to one Alan Gardner. The Los Angeles Pacific Company received by grant deed on January 15, 1906, that easement theretofore acquired by the condemnor on February 16, 1900, and nothing more. [fn. 1] On July 17, 1901, Gardner recorded the map of "A. Gardner's West of Hollywood Subdivision."
On May 28, 1902, Gardner conveyed to one Weisel (predecessor in title to the portion of said property hereinafter referred to as the Shultz property) "Lot Two (2) of A. Gardner's West of Hollywood Subdivision, ... Excepting a strip six (6) feet wide along the southeast line of said lot as far as a culvert under the railroad track for drainage purposes only." At the time of this conveyance of the Shultz property (Lot 2), the recorded tract map appeared as in Diagram #1. (See post.)
On February 11, 1905, Gardner recorded the map of "A. Gardner Tract" (hereinafter referred to as "resubdivision" map, attached post as Diagram #2). By the "resubdivision," Gardner altered his subdivision plan of 1901 (at least as far as the property with which we are concerned) from acreage parcels or lots to city lots. Also, he dedicated an alley, with which we are not concerned, and, for street purposes, an area on the easterly edge of a portion of the original subdivision, a 40-foot strip (Vista Street) extending from Sunset Boulevard north to Michigan Avenue (these being existent, dedicated streets). Excluded from the "resubdivision" is that portion of the original subdivision designated as "Lot 2," which had been conveyed to Weisel.
By various transactions shown by deeds of record and a stipulation of fact, it appears that one Larson acquired the property designated as "Lot 2" on the original subdivision map and obtained a quitclaim deed from Gardner in 1924 relative thereto. By this conveyance of 1924, the 6-foot reservation as set forth in the Weisel deed of 1902 was eliminated. Likewise, by stipulation, it is established that the Shultzes "are the record owners of the southerly 202.90 feet of Lot 2 of A. Gardner's West of Hollywood Subdivision, as more particularly described in that certain deed from Alan Gardner *727 and Ada K. Gardner to Peter Weisel, dated May 28, 1902, ..." The particular portion of the original subdivision denoted as "Lot 2," which at present is owned by the Shultzes, is that portion shown on Diagram #3 (see post) and numbered (A) and (B). The record then may be said to establish that the property owned by the Shultzes is a portion of that "Lot 2" conveyed in 1902 to Weisel, but without the drainage ditch reservation. [fn. 2] Title in the Shultzes derived from immediate predecessors, one Franklin (Lot A) and one Montgomery (Lot B).
On March 6, 1905, Gardner conveyed Lot 1 in Block 1 as shown in the "resubdivision" map (Diagram #2) to one Soethout. "Lot No. 1" of the resubdivision map, Block 1, was a triangular lot with a frontage of 242 feet on the south side (Sunset Boulevard). The hypotenuse of "Lot No. 1" was parallel to and southeasterly of the southeasterly property line of the Shultz "Lot 2." In 1945, the Hoerbers succeeded to a portion of this interest, the Hoerber ownership covering the westerly 60.92 feet thereof only. The Hoerber lot is designated (C) on Diagram #3. On October 7, 1948, one Dulgarian became the owner of a portion of the Soethout Lot No. 1. This parcel adjoined the Hoerber parcel on the west and extended easterly along Sunset for 50 feet, and is designated (D) on Diagram #3. On June 10, 1954, Affiliated Local 44 acquired the remainder of the Soethout Lot No. 1, and this portion of the Soethout Lot No. 1 is designated (E) on the resubdivision map. [fn. 3]
The property in issue is that area of the "subdivision" and "resubdivision" maps denominated "Los Angeles Pacific Railway," which is adjacent to the properties of Shultz, Hoerber, and Affiliated Local 44. Each of these parties claims an ownership in the railway strip to the center thereof for the length of their properties.
The total area of the disputed "strip" is .55 acres. Following Los Angeles Pacific Railway's acquisition of the property, a rail line was built over the 35-foot-wide strip, and an electric railway was operated thereon until some time in 1954. During 1954 the Pacific Electric Railway Company abandoned *728 the line by proper authorization, and the rails themselves were removed in March of 1955. Subsequently, Pacific Electric leased portions of the strip to various owners of property abutting portions of the strip. Affiliated Local 44 was not among the lessees, but the Hoerbers and persons prior in title to the Shultzes were.
Pacific Electric did not claim title in fee from the condemnation judgment, but did claim title in fee by adverse possession after 1955. From within a few weeks after the tracks had been removed, Affiliated Local 44 commenced using the adjacent portion of the strip for business parking purposes, with access obtained from Sunset Boulevard and from underneath Affiliated's business structure. No authorization for the continuous parking was obtained, and it was open and notorious, continuing for more than 5 years prior to the filing of this action. Affiliated filed an amended cross- complaint, adding a claim for easement by prescription if the court denied its claim to title in fee by prescription of the whole of said 35-foot strip adjacent to the property of Affiliated. The use of any or all of the strip for parking was not exclusive as to Affiliated, nor was control attempted by them.
No portion of the Pacific Electric right of way was included in the inventory, or specifically described in the estate of Alan Gardner. In the original subdivision map, the strip is designated as "Los Angeles Pacific Railway," and is not shown as a street, road, highway, or alley. In the "resubdivision" map, in addition to the above-referred to designation, there is a further inscription: "Not a Portion of this Tract." This notation appears along the northwesterly edge of the strip and adjacent to the southeasterly portion of "Lot 2" as shown on the original subdivision map.
The Freemans acquired the title they claim to the strip by various deeds from successors in interest of the estate of Alan Gardner. The Freemans contend that title to the strip passed from the Gardner estate in the omnibus clause.
The contentions of the Shultzes and Hoerbers differ from those of Affiliated, and will therefore be considered separately.
The first contention by the Shultzes and Hoerbers is that, as adjoining owners of the subject property (strip), they took title to the bordering underlying fee under the presumptions *729 of Civil Code sections 831 and 1112 and Code of Civil Procedure section 2077, subdivision 4. [fn. 4]
[1] By the contention made, the rule applicable to monuments as boundaries is urged as applicable here. The case of Freeman v. Bellegarde, 108 Cal. 179, 184 [41 P. 289] succinctly states the rule as follows: "In the absence of any qualifying term the designation in a conveyance of any physical object or monument as a boundary implies the middle or central point of such boundary; as, for example, if the boundary be a road or highway, or a stream, the thread of the road or stream will be intended; if a rock, a heap of stones, or a tree be the boundary the central point of such tree or rock or heap of stones will be intended. A private grant is to be interpreted in favor of the grantee, and, if the grantor is the owner of the monument or boundary designated in his grant, his conveyance will be held to extend to the middle line or central point of such monument or boundary."
The Shultzes and Hoerbers trace their titles to the original owner and subdivider of the property (Gardner), and there is no question on appeal but that Gardner was the owner of the underlying fee in the subject property, subject only to the Pacific Electric right of way easement. Each of the maps, the original subdivision and the resubdivision maps, showed the existence of the 35-foot wide strip.
As Freeman v. Bellegarde, supra, points out, the monument rule is an aid to construction of the intent of the grantor and is not mandatorily applicable in the face of convincing proof of contrary intent. Some oral testimony was taken as it related to acts of Pacific and of present day land owners respecting the area, none of which related to the intent at the time of conveyance by Gardner. It is the time of conveyance which must be looked to to establish the intent.
[2] In Neff v. Ernst, 48 Cal.2d 628, 635 [311 P.2d 849], it is stated: "The transfer of land, bounded by a highway, passes the title of the person whose estate is transferred to the soil of *730 the highway in front to the center thereof, unless a different intent appears from the grant. (Civ. Code, 1112; Moody v. Palmer, 50 Cal. 31.) In case of doubt, the deed must be construed in favor of the grantee. (Civ. Code, 1069.) It is the general rule that it will be presumed that where property is sold by reference to a recorded map the grantee takes to the center of the street or streets shown on the map as bounding the property, even though the streets shown therein appear to have been vacated or abandoned or the deed itself refers to the streets as having been vacated or abandoned. The presumption continues to apply in the absence of a clear expression in the deed not to convey title to the center line. (Anderson v. Citizens Sav. etc. Co., 185 Cal. 386 [197 P. 113]; Pinsky v. Sloat, 130 Cal.App.2d 579 [279 P.2d 584].)"
It is well established that the same rule may apply to a railroad right of way. 4 Tiffany, Law of Real Property (3d ed.) p. 113 states: "Where an owner conveys a tract abutting on a railroad right of way in which he owns the servient estate, the trend of authority seems to be to hold that the conveyance passes the servient estate, unless a contrary intention is indicated." [Citing Roxana Petroleum Corp. v. Sutter, 28 F.2d 159; Roxana Petroleum Corp. v. Jarvis, 127 Kan. 365 [373 P. 661]; Cuneo v. Champlin Refining Co., 178 Okla. 198 [62 P.2d 82]; Gulf Production Co. v. State (Tex. Civ. App.) 231 S.W. 124; Rio Bravo Oil Co. v. Weed, 121 Tex. 427 [50 S.W.2d 1080, 85 A.L.R. 391].] The 1967 Cumulative Supplement (p. 98) cites additional cases: Eureka Real Estate etc. Co. v. Southern Real Estate & Financial Co., 355 Mo. 1199 [200 S.W.2d 328]; New Orleans & Northeastern R.R. v. Morrison, 203 Miss. 791 [35 So.2d 68]; Putnam v. Oklahoma City, 203 Okla. 570 [224 P.2d 270]; Hill v. Cunningham (Okla.) 329 P.2d 1034; Fleck v. Universal-Cyclops Steel Corp., 397 Pa. 648 [156 A.2d 832]; Standard Oil Co. v. Milner, 275 Ala. 104 [152 So.2d 431] citing Tiffany. In Faus v. Nelson, 241 Cal.App.2d 320, 324 [50 Cal.Rptr. 483], the court stated that every common law jurisdiction except Maine and England has applied the rule pertaining to highways to railroad easements, and cited for a collection of cases 85 A.L.R. 404. Ogden's California Real Property Law (1956) (pp. 483-484) is to the same effect.
There is interesting language contained in the deed of 1902, which guides us to the proper conclusion of the grantor's intent. The deed reserves an easement, as follows: "Excepting *731 a strip six (6) feet wide along the southeast line of said lot as far as a culvert under the railroad track for drainage purposes" (accent added). Had the grantor believed that he was not conveying title to the land to the center of the Pacific Electric right of way, certainly he would not have reserved an easement to and including the culvert under the track which centered the right of way. As stated in 11 Corpus Juris Secundum, 45, p. 594: "It has been held that a 'railroad,' when given as a boundary of a tract of land, will be construed to mean the right of way, and not the steel rails; but land described as bounded by 'the north line of the railroad track' extends to the line of the rails, and not merely to the right of way." There is a further indication of that intent by Gardner when in 1924 he quitclaimed "Lot Two (2)," The Shultz property, thus clearing the reserved easement of the 6-foot drainage ditch.
The record establishes that the conveyance from Gardner to Weisel was the sole transaction dealing with this tract until after the filing of the resubdivision map in 1905. It was not until January 6, 1906, that the predecessor to Pacific Electric Railway acquired the right of way and made real the easy transportation to and from the tract. The conveyance to Weisel, of course, eliminated that portion of the Gardner tract from resubdivision, and it was necessary to show this on the new tract map. In addition to the smaller lot-type subdivision, new dedications of streets and alleys, and other noted matter, there was inscribed, "Not a Portion of this Tract," along and in the strip area immediately adjacent to the excluded Shultz property (Diagram #2). It is urged that this notation was designed to give notice of an exclusion of the strip from subdivision, and the trial court so construed it.
[3] It is undoubtedly the rule that where there is any evidence either direct or indirect, contradicted or uncontradicted, which supports the trial court finding, it must be sustained on appeal. (Richter v. Walker, 36 Cal.2d 634 [226 P.2d 593]; Estate of Bristol, 23 Cal.2d 221 [143 P.2d 689].) This rule is subject to the well recognized exception applicable where all the evidence is documentary and no extrinsic evidence has been admitted to aid in construction or inference. As stated in Witkin, California Procedure (1967) Supp., 89A, pp. 942, 943: "In Parsons v. Bristol Dev. Co. (1965) 62 Cal.2d 861, 44 C.R. 767, 402 P.2d 839, the issue was whether defendant's liability for payments under a contract was subject *732 to a condition precedent--an event which had not yet occurred. Extrinsic evidence was admitted, and the trial judge denied recovery. The Supreme Court affirmed, and, since it reached the same conclusion as the trial judge there was no need to consider the differing views. But the court felt that it was time to resolve the conflict and it did so as follows:"
"First, as to Rule (b), text, 89: The extreme cases suggesting that the trial judge's interpretation must be accepted if it is reasonable (e.g., Lundin v. Hallmark Productions, supra, Prickett v. Royal Ins. Co., supra, Estate of Cuneo, supra) were explained as holding only that the reviewing court must find the interpretation erroneous in order to reverse; they do not mean that the reviewing court is absolved of its duty to interpret. (62 Cal.2d 866.)"
"Second, as to Rule (a), text, 89: This rule, that where extrinsic evidence is introduced from which conflicting inferences may be drawn the reviewing court must accept the trial judge's reasonable interpretation, was rejected, and cases supporting it (e.g., Estate of Rule, and Overton v. Vita-Food Corp., text, p. 2243) were disapproved. The correct view, the court declared, was that declared in Estate of Platt (text, p. 2253), in the dissent in Estate of Rule (text, p. 2253), and in Estate of Shannon, Supp., supra, 89: Where there is no conflict in the extrinsic evidence (and therefore no problem of its credibility, but only of inferences to be drawn therefrom), the reviewing court 'must make an independent determination of the meaning.' (62 Cal.2d 866.)"
"See also, following Parsons case, where there is no extrinsic evidence or its credibility is not involved, Miller v. Citizens S. & L. Assn. (1967) 248 Cal.App.2d 655, 660, 56 C.R. 844; Kusmark v. Montgomery Ward & Co. (1967) 249 Cal.App.2d 585, 587, 57 C.R. 678; Alec Fergusson Elec. Contractors v. Integrated (1967) 250 Cal.App.2d 287, 294, 58 C.R. 503; Kurland v. United Pac. Ins. Co. (1967) 251 Cal.App.2d 112, 116, 59 C.R. 258."
[4] There being no substantial evidence to contravene the presumptions of Civil Code sections 831 and 1112 as related to the Shultz property, title to the property underlying the strip, to the center thereof and adjacent to the lots designated (A) and (B) on Diagram #3, is in the Shultzes.
Does the fact that the Hoerber property was first acquired after the filing of the resubdivision map and that the Hoerbers *733 made no claim to the property involved prior to the instant litigation, but to the contrary, were among those adjacent lot owners leasing the said property abutting the lot owned by them, [fn. 5] require a different result? The leases thus involved show claim of right to the property by the Pacific Electric Railway Company through adverse possession after the 1955 abandonment of railway use. That the lessees may have mistakenly acquiesced in this belief does not affect the intent of the original grantor, Gardner; nor does it shed any light upon that issue. Thus we conclude that these facts do not alter the intent of the grantor, Gardner.
As we have already noted, we have concluded that there was no substantial evidence before the trial court, excepting the documents and stipulations referred to, as to the issue relative to the Shultz property. Once the original intent by the grantor to convey to the center of the rail line monument is established, it would continue in the absence of a clear indication to the contrary. The question is whether there is a clear indication discernible from the resubdivision map and subsequent conveying deeds. Only the size of parcels within the subdivision and the words "Not a Portion of this Tract" differentiate the two subdivision maps. [fn. 6]
In Shell Petroleum Corporation v. Hollow, 70 F.2d 811 at p. 814, [fn. 7] the court expressed the rule, as follows: "It may be said generally that the servient estate passes with a conveyance of the fee to the abutting tract when the instrument is silent with respect to the matter, or if the estate is not excluded in clear, unequivocal, and unmistakable language. Exclusion by clear, unequivocal and unmistakable terms is required, and a reservation is construed more strictly than a grant. The provision in question does not indicate clearly, unequivocally, and unmistakably an intent to exclude the servient estate. Instead, it reflects a purpose to exclude the *734 dominant estate then held by the school district. It reflects the desire of a reasonably prudent person to safeguard himself against liability on his warranty for the dominant estate of the school district."
[5] It is contended that where the grantor owns the land on both sides of the railroad easement--hence, after a sale of a parcel, on one side thereof--the grantor retains, as connected to his land, the whole of the land subject to the easement. This rule was applied in Couch v. Texas & Pac. R. Co., 99 Tex. 464 [90 S.W. 860, 122 Am.St.Rep. 653, 72 L.R.A. N.S. 1111].
As we have pointed out, the conveyance of the Shultz property was a conveyance to the center of the railroad right of way, and at the time of the sale of the Hoerber property, no longer was there an adjacent piece of property owned by the grantor, Gardner. Therefore, the Couch rule of not applying the presumptions as codified in Civil Code sections 831 and 1112 is not applicable here.
In both of the Hoerber and Shultz deeds, reference is made to a lot number of a particular tract. The fact that it appears from the subdivision map that the lines of the lots adjacent to the Pacific Electric right of way stop at the exterior line of such right of way is not of itself sufficient to exclude the conveyance of title to the center of the railroad (11 C.J.S., 104a, p. 696). [6] The general rule is that where lots are sold by number and not by metes and bounds, reference being made to a registered map and plat which show that the property abuts on a street or highway, the conveyance carries title to the center of the street. (8 Cal.Jur.2d, 8, 787-8.) We have noted that the same applies to rail line monuments. (Faus v. Nelson, supra, 241 Cal.App.2d 320, 324.)
[7a] Both the Shultzes and the Hoerbers have sought affirmatively to quiet title in themselves to the center line of the Pacific Electric right of way. In addition to this affirmative relief by cross-complaint, they answered the quiet title action initially filed by Freeman. So also did Affiliated answer Freeman's action. [8] It is axiomatic that in a quiet title action the plaintiff must prevail on the strength of his own title, and not on the weakness of defendant's title. (Knoke v. Knight, 206 Cal. 225 [273 P. 786]; Sears v. Willard, 165 Cal. 12 [130 P. 869]; Mandel v. Great Lakes Oil etc. Co., 150 Cal.App.2d 621 [310 P.2d 498].)
[7b] The evidence has been set forth in such manner as to *735 not only test the strength of Freeman's claim for quiet title, but likewise to establish the affirmative claims in the Shultzes and the Hoerbers. Our conclusion is that the Shultzes and Hoerbers have met that burden, and judgment quieting title in them is ordered.
This leaves only the question as to the affirmative relief sought by Affiliated Local 44.
[9] Affiliated Local 44 claimed title only through adverse possession. By amended pleading, a second right was alleged, conditional upon an adverse finding on the claim of title by adverse possession. The second claim by Affiliated is that an easement by prescription for car parking purposes was acquired through its use of the area. The trial court found adversely to both contentions.
We need not analyze the correctness of the court's finding as to Affiliated's claim under either of these stated theories. In Affiliated's cross-complaint for quiet title, the claim of title and a description of the property are fully set forth. The evidence admitted at the trial traces title in Affiliated through purchasers back to the original sale of the property by Gardner to one Soethout. In the light of the holding as to the Hoerbers and the Shultzes as heretofore stated, Affiliated likewise is possessed of title to the center of the railroad right of way. Under the rule of Ward v. Taggart, 51 Cal.2d 736, 742 [336 P.2d 534], we find that the same legal theory presented by the Hoerbers and the Shultzes may sustain a judgment for Affiliated, though a different theory was relied upon by Affiliated. This legal theory, though not raised in the trial court by Affiliated, does not raise factual issues not presented there, and the question becomes, under the existing circumstances, one of law only. (Allstate Ins. Co. v. Orlando, 262 Cal.App.2d 858, 867 [69 Cal.Rptr. 702].)
The judgment is reversed and the cause is remanded to the trial court for entry of judgment quieting title to the respective parties, the Shultzes, the Hoerbers, and Affiliated, in accordance with the views hereinbefore expressed.
Kaus, P. J., and Aiso, J. pro tem., [fn. *] concurred.
Section 1112. "A transfer of land, bounded by a highway, passes the title of the person whose estate is transferred to the soil of the highway in front to the center thereof, unless a different intent appears from the grant."
It might be added that Code of Civil Procedure section 2077, subdivision 4, which sets forth the same rule, applies it also to a "stream of water not navigable."
NOTES
[fn. 1] 1. Under articles of incorporation and consolidation in 1911, Pacific Electric Railway Company became the successor in interest to the Los Angeles Pacific Company. The easement herein involved will hereinafter be referred to as the Pacific Electric right of way.
[fn. 2] 2. The Shultzes acquired from the heirs of Larsen, by quitclaim deeds, dated 1963, all interests to said property possessed by Larsen.
[fn. 3] 3. At time of judgment, Affiliated Local 44 had acquired the Dulgarian parcel, making it the owner of Lots (D) and (E) as marked on Diagram #3.
[fn. 4] 4. Section 831. "An owner of land bounded by a road or street is presumed to own to the center of the way; but the contrary may be shown."
[fn. 5] 5. The record shows that the immediate predecessors in title to the Shultz property likewise leased the questioned property. The Shultzes, however, obtained quitclaim deeds from the heirs of Larson, in furtherance of their claim.
[fn. 6] 6. As we have already noted, certain new streets were likewise dedicated in the second map, but this was only to facilitate the lot type subdivision, and does not pertain to the question before us.
[fn. 7] 7. The language contained in the deed involved in Shell (p. 812) was quite similar to that of the instant case. The tract there described included a school area, and the conveyance contained this provision of exception or exclusion: "Excepting, however, and not included in this grant, one acre in the extreme NE corner of the SE1/4 which has been deeded to School District No. 29." (Italics added.)
[fn. *] *. Assigned by the Chairman of the Judicial Council. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2565682/ | 4 N.Y.3d 701 (2004)
CON-SOLID CONTR. CO., INC. v. LITWAK
Court of Appeals of the State of New York.
Decided December 16, 2004
Motion for leave to appeal denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318877/ | 94 S.E.2d 466 (1956)
244 N.C. 489
Hattle S. WOOLARD, Florence Silverthorne, James Enoch Smith, Jr., Pearlle Bell McCullar and W. E. Smith,
v.
Emma F. SMITH.
No. 32.
Supreme Court of North Carolina.
September 26, 1956.
*467 LeRoy Scott and L. E. Mercer, Washington, D. C., for plaintiff appellants.
John A. Mayo and Junius D. Grimes, Washington, D. C., for defendant appellee.
RODMAN, Justice.
The judgment presents for decision these questions:
1. May a husband, the owner of land, by deed to himself and wife create an estate by the entireties?
2. If not, may the same result be accomplished by way of estoppel?
It will be noted that the habendum of the deed reads: "unto the said parties of the first part, their heirs and assigns, in fee simple * * *" Appellants, in their brief, concede this was a clerical error.
The deed, by express language, recites both a desire and a willingness on the part of the party of the first part to create an estate by the entirety. Following this recital are formal words of conveyance followed by general covenants of seizin and warranty.
The right to contract and to convey property ought not to be limited or circumscribed unless prohibited by sound public policy or valid statute.
What sound reason, if any, exists why a deed from a husband to husband and wife cannot, in accord with the express language of the deed, create an estate by the entirety?
*468 Appellants contend that J. E. Smith, the husband, could not, at the same moment, be grantor and grantee. So, they say, the deed conveyed nothing to J. E. Smith. They say that Emma Smith, the other named grantee could take only an undivided half interest. Hence, they say, the deed constituted J. E. Smith and Emma Smith tenants in common and upon the death of J. E. Smith, his half descended to plaintiffs, his heirs at law.
The assertion that one cannot be grantor and grantee at the same instant is logical and a correct statement of law. Pearson, J., expressed it thus: "Property must at all times have an owner. One person cannot part with the ownership unless there be another person to take it from him. There must be a `grantor and a grantee and a thing granted.'" Dupree v. Dupree, 45 N.C. 164.
Appellants assume the very question at issue. They assume that a conveyance to "J. E. Smith and wife, Emma Smith," is a conveyance to two separate and distinct individuals. Their assumption does not accord with the theory on which the estate by entireties originated and which is recognized by us.
That husband and wife constitute a legal entity separate and distinct from the component parts of the marital status was recognized as early as the Fourteenth Century. It was so declared by this Court as early as 1837. Motley v. Whitemore, 19 N.C. 537.
The necessity of the unity of person, that is, a separate entity, to create an estate by the entirety has been declared on many occasions by this Court.
The following quotations illustrate the uniform holdings of this Court:
"The idea that husband and wife are one, or, as generally expressed, of the unity of person, does not have its origin in the common law. It dates from the Garden of Eden when it was declared `they shall be one flesh' (Gen., 2:14), and it has been reaffirmed and preserved in the Gospels and the Epistles. `Wherefore they are no more twain, but one flesh.' (Matt., 19:5); `They twain shall be one flesh' (Mark, 10:18); `They too shall be one flesh.' (Eph., 5:31).
"It is on the doctrine of the unity of person that estates by entireties, with the right of survivorship, rest." Freeman v. Belfer, 173 N.C. 581, 92 S.E. 486, 487, L.R.A.1917E, 886.
"The estate was predicated upon the fact that, in law, the husband and wife, though twain, are regarded as one there being, in other words, a unity of person, which has been called the fifth unity of this estate, the others being of time, title, interest, and possession, which also belonged to an estate by joint tenancy." Moore v. Greenville Banking & Trust Co., 178 N.C. 118, 100 S.E. 269, 272.
"This tenancy by the entirety is sui generis, and arises from the singularity of relationship between husband and wife. In order to comprehend its peculiar properties and incidents, the one fact which must be constantly borne in mind is that the estate may be taken and held only by husband and wife in their capacity as such, and not otherwise, though it is not necessary that they be so described. 13 R.C.L. 1180. As between them, there is but one owner, and that is neither the one nor the other, but both together, in their peculiar relationship to each other, constituting the proprietorship of the whole, and every part and parcel thereof. Ketchum v. Walsworth, 5 Wis. [95, at page] 102. It may be taken under execution against one of the parties only when the legal personage of `husband and wife' has been reduced to an individuality identical with the natural *469 person of the survivor." Johnson v. Leavitt, 188 N.C. 682, 125 S.E. 490, 492.
"Tenancy by entireties, or by the entirety, is the tenancy by which husband and wife at common law hold land conveyed or devised to them by a single instrument, which does not require them to hold it by another character of tenancy. Littleton, § 291; Tiffany, Real Property, § 194. The husband and wife take the whole estate as one person. Each has the whole; neither has a separate estate or interest * * *." First Nat. Bank v. Hall, 201 N.C. 787, 161 S.E. 484, 485.
"Estates by the entireties are creatures of the common law created by legal fiction and based wholly on the common-law doctrine that husband and wife are one, and, therefore there is but one estate, and in contemplation of law, but one person owning the whole. * * * By reason of their legal unity by marriage, the husband and wife together take the whole estate as one person. Neither has a separate estate or interest in the land, but each has the whole estate. Upon the death of one the entire estate and interest belongs to the other, not by virtue of survivorship, but by virtue of the title that vested under the original limitation." Thompson on Real Property, sec. 1803.
The New York Court said:
"It [estate by entireties] originated in the marital relation, and, although the survivorship presents the greatest formal resemblance to joint tenancy, instead of founding the estate by the entirety upon the notion of joint tenancy, all the authorities refer it to the established effect of a conveyance to husband and wife pretty much independent of any principles which govern other cases. * * * At common law, husband and wife were regarded as one person, and a conveyance to them by name was a conveyance in law to but one person. These two real individuals, by reason of this relationship, took the whole of the estate between them, and each was seised of the whole, and not of any undivided portion. They were thus seised of the whole because they were legally but one person." Steltz v. Shreck, 128 N.Y. 263, 28 N.E. 510, 511.
Death creates no new estate in the survivor. The survivor takes by virtue of the original conveyance. Spruill v. Branning Mfg. Co., 130 N.C. 42, 40 S.E. 824; Underwood v. Ward, 239 N.C. 513, 80 S.E.2d 267.
Presumably appellants would concede that J. E. Smith, the grantor, could convey to a corporation whose only stockholders were the grantor, J. E. Smith, and his wife, Emma Smith. That would be true because a corporation is a different entity, a different person from J. E. Smith, the grantor.
The husband may have property conveyed to a trustee for the husband and his wife. Such conveyance forthwith creates a tenancy by entirety. Akin v. First Nat. Bank, 227 N.C. 453, 42 S.E.2d 518.
A conveyance by one spouse to the other followed by a conveyance by both to a trustee for the husband and wife has been held by us to create an estate by the entireties, the trust being passive, is immediately executed by the statute. Harris v. Carolina Distributing Co., 172 N.C. 14, 89 S.E. 789.
If husband and wife are in law one person, that is, an entity separate from the individuals as the cases declare, the foundation on which appellants build their case falls, and their assertion of ownership must fall with it.
Appellants claim Blackstone supports their position. Blackstone says: "The properties of a joint-estate are derived from its unity, which is fourfold; the unity of interest, the unity of title, the unity of time, *470 and the unity of possession; or, in other words, joint-tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession."
Appellants insist that these unities cannot exist here because J. E. Smith and Emma Smith take at different times, J. E. Smith, by virtue of the original conveyance; Emma Smith, by virtue of the conveyance to her. That is simply another way of saying that the grantee, "J. E. Smith and wife, Emma Smith," take, if at all, as separate individuals and not as a single unity. Blackstone clearly differentiates between a joint tenancy and an estate by the entireties. He says: "Joint-tenants are said to be seised per my et per tout, by the half or moiety, and by all: that is, they each of them have the entire possession, as well of every parcel as of the whole. They have not, one of them, a seisin of one half or moiety, and the other of the other moiety; neither can he be exclusively seised of one acre, and his companion of another; but each has an undivided moiety of the whole, and not the whole of an undivided moiety." He there points to the distinction between joint tenants and tenants in common. He immediately follows it by saying: "And therefore, if an estate in fee be given to a man and his wife, they are neither properly joint-tenants, nor tenants in common: for husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout, et non per my: the consequence of which is, that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor." (Emphasis supplied.)
A joint tenancy may be terminated by sale by one of the joint tenants or by sale under execution against one of the joint tenants. An estate by the entirety cannot be so terminated.
Survivorship in joint tenancy was abolished by statute in this State in 1784. G.S. § 41-2. But this statute did not affect estates by the entirety. Motley v. Whitemore, supra.
The late Chief Justice Clark, on two occasions, said: "though it has often been recommended to the Legislature the abolition of this anomaly, it has not been done." Moore v. Greenville Banking & Trust Co., supra [178 N.C. 118, 100 S.E. 275]; Freeman v. Belfer, supra.
The Legislature, notwithstanding the suggestion made by the late Chief Justice, has not abolished estates by the entirety but has enacted legislation by which a sale of the estate may be made if one of the tenants is insane. G.S. § 35-14.
No sound reason has been suggested why the right to create these estates should be limited or discouraged.
Courts in our sister states are not in accord on the question of whether an estate by entirety may be created by direct conveyance from a husband to a husband and wife. The varying decisions are assembled and analyzed in Ebrite v. Brookhyser, 219 Ark. 676, 244 S.W.2d 625, 44 A.L.R. 2d 587. To properly evaluate the cases in the different states one must consider the statutes of those states and the fact that in some states the estate by the entireties is not recognized. Some of the decisions holding that such an estate may not be created by direct conveyance proceed upon the theory joint tenancy is attempted. In joint tenancy, as previously noted, the tenants are not a unity. Hence where one undertakes to convey to himself and another as joint tenants, he is conveying to two district individuals and the conveyance to himself fails. This is the reasoning of the Michigan Court, Pegg v. Pegg, 165 Mich. 228, 130 N.W. 617, 33 L.R.A.,N.S., 166; Wright v. Knapp, 183 Mich. 656, 150 N.W. 315. Notwithstanding this holding, the Michigan Court recognized that a spouse may create *471 an estate by the entirety with respect to property owned by him by conveying, to a straw man. It is said in Howell v. Wieas, 232 Mich. 227, 205 N.W. 55, 56: "We have said that where a husband holds the record title to real estate and desires to create an estate by the entirety, the proper course to be pursued is to deed to a third party, who in turn deeds to the husband and wife. The reason for requiring a deed to a third party is that the husband must divest himself of the legal title so there may be created in him and his wife that unity of title and interest necessary in an estate by the entireties."
Appellants urge in support of their position Deslauriers v. Senesac, 331 Ill. 437, 163 N.E. 327, 328, 62 A.L.R. 511. There Ida Deslauriers, the owner of a lot, with the joinder of her husband undertook to convey the lot to her husband and herself. The deed stated: "`Said grantors intend and declare that their title shall and does hereby pass to grantees not in tenancy in common but in joint tenancy.'"
The court concluded that the deed was ineffectual to create a joint tenancy. The court said: "Ida Deslauriers was the sole owner of the half lot prior to the execution of the deed from herself and husband to themselves. She could not by that deed convey an interest in the property to herself. It is manifest from the deed that she did not intend to convey the whole and entire interest to her husband, for she retained an equal share or interest. Hence the interests of Ida Deslauriers and her husband were neither acquired by one and the same conveyance, nor did they vest at one and the same time."
Illinois does not recognize estates by the entireties. Hence that court, in reaching its conclusion, gave no consideration to the legal fiction of unity of person on which estates by the entirety are founded and to which we adhere.
Apparently a majority of the courts recognizing estates by the entirety and called upon to consider the question have declared a conveyance by husband to husband and wife valid. The reasons assigned accord with the conclusion reached by us, vis., the unity of husband and wife suffices to effectuate the express and declared intention of the grantor.
To hold that the deed under consideration created a tenancy in common between J. E. Smith and his wife would do violence to the declared intent of the grantor: (1) it would permit immediate partition at the instance of either cotenant; (2) it would permit either cotenant to sell his or her moiety; (3) it would deprive the husband of the usufruct during his lifetime; (4) it would permit the wife to devise her moiety, thus depriving the husband and grantor of his right of survivorship; (5) upon the death of the wife intestate her moiety would descend to her heirs, defeating the right of survivorship; (6) a half could be sold under execution issuing on a judgment rendered against either cotenant and for which the other was not liable. None of these results would be permitted if the deed created an estate by the entireties.
To hold that the deed created a tenancy in common would not be a construction of the deed. It would be a creation by the courts of a new and entirely different deed from the one the grantor signed. It would create an estate we have no right to think the grantor ever contemplated.
It is unnecessary to consider the question of estoppel.
The judgment is
Affirmed.
JOHNSON, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318907/ | 677 S.E.2d 868 (2009)
Ross A. PANOS, Plaintiff,
v.
TIMCO ENGINE CENTER, INC., Defendant.
No. COA08-1018.
Court of Appeals of North Carolina.
June 16, 2009.
*870 Hill Evans Jordan & Beatty, PLLC, by R. Thompson Wright and Benjamin D. Ridings, Greensboro, for Plaintiff.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Mack Sperling and Elizabeth V. LaFollette, Greensboro, for Defendant.
*871 STEPHENS, Judge.
Factual Background and Procedural History
Timco Engine Center, Inc. ("Defendant") is in the business of servicing and repairing jet engines on commercial aircraft. Timco Aviation Services, Inc. ("Timco") is the parent company of Defendant, and has an office in Greensboro, North Carolina. Defendant is a Delaware corporation with its principal place of business in Oscoda, Michigan.
Ross A. Panos ("Plaintiff") entered into an employment agreement with Defendant on 20 January 2005, under which Plaintiff was employed as a general manager for Defendant for a term of two years and a salary of $150,000 per year. Under the terms of the employment agreement, Defendant's early termination of Plaintiff's employment "without cause" required Defendant to pay Plaintiff his base salary of $150,000 for a period of twelve months following such termination. The employment agreement defines "cause" as
a determination by [Defendant's] Board of Directors that (i) Employee has breached of [sic] this Agreement, (ii) Employee has failed or refused to perform the duties and responsibilities required to be performed by Employee under the terms of this Agreement, (iii) Employee has acted with gross negligence or willful misconduct in the performance of his duties hereunder, (iv) Employee has committed an act of dishonesty affecting [Defendant] or committed an act constituting common law fraud or a felony, or (v) Employee has committed an act (other than the good faith exercise of his business judgment in the performance of his duties) that is reasonably likely to result in material harm or loss to [Defendant] or Parent or the reputation of [Defendant] or Parent.
The employment agreement also provides that it "shall be construed in accordance with and governed for all purposes by the laws of the State of North Carolina[.]"
During his employment with Defendant, Plaintiff maintained a residence in San Diego, California, and the facility that he managed was located in Oscoda, Michigan. Plaintiff's normal work routine consisted of two weeks working in Oscoda and then working from his residence in San Diego the third week. Gil West ("West"), Plaintiff's direct supervisor and president of Defendant, was based in Greensboro. Plaintiff participated in a conference call with West and other management in Greensboro on most weekdays. Plaintiff also attended quarterly management meetings in Greensboro. Plaintiff estimated that he came to North Carolina about eight or nine times a year, generally for one or two days on each visit.
Plaintiff testified at deposition that despite efficiencies and increased revenue enjoyed by Defendant during Plaintiff's tenure, West led Plaintiff to believe that Timco's Chief Operating Officer, Roy Rimmer ("Rimmer"), was looking for a way to terminate Plaintiff's employment prior to the expiration of Plaintiff's employment agreement. Thereafter, in December 2005, Plaintiff began searching for new employment by sending email correspondence through his corporate email account, some of which was sent to competitors of Defendant. Defendant claims that Plaintiff's actions constituted a breach of Plaintiff's contractual duty to "devote his full time and efforts to the service of [Defendant]."
Plaintiff claims that Rimmer requested that Plaintiff fly to Dallas-Fort Worth International Airport for a meeting on 29 December 2005. According to Plaintiff, when he arrived at the airport, Rimmer handed him a letter stating that his employment with Defendant had been terminated "for cause." Defendant claims that it terminated Plaintiff because of Plaintiff's disloyalty in actively seeking other employment with Defendant's competitors. Defendant notes that it was inappropriate for Plaintiff to publicize to the marketplace that he would be departing from Defendant, and especially to do so by using his corporate email account. Plaintiff did not receive any further explanation, and the record does not contain any meeting minutes or other indication that Defendant's Board of Directors discussed Plaintiff's termination. After Plaintiff was terminated, no further investigation into whether Plaintiff was terminated "for cause" was undertaken by Defendant's Board of Directors.
*872 Plaintiff's termination letter also informed Plaintiff that he should immediately return his company-issued computer. Before doing so, Plaintiff deleted all data from the computer's hard drive. This data included management information, wage information for employees, and other company information, most of which Plaintiff claimed existed on Defendant's central server. Plaintiff claims he deleted these files out of concern that someone not privy to information on the computer, such as company payroll information, might discover the privileged information. Defendant, however, argues that Plaintiff's conduct violated Defendant's code of ethical conduct, and that Plaintiff's actions constitute evidence spoliation which severely impaired Defendant's trade secrets claim against Plaintiff.
Based, inter alia, on Defendant's alleged breach of Plaintiff's employment agreement and alleged violation of the North Carolina Wage and Hour Act, N.C. Gen.Stat. § 95-25.1, Plaintiff filed a complaint against Defendant on 18 April 2006, seeking recovery of severance pay under the employment agreement. Defendant filed its answer and counterclaim on 26 June 2006, which included a claim under the North Carolina Trade Secrets Protection Act, N.C. Gen.Stat. § 66-152. On 6 June 2008, following arguments of counsel and upon consideration of each party's evidence in support of their respective positions, the trial court entered an order granting partial summary judgment for each party. Specifically, the court determined that:
[D]efendant is entitled to judgment as a matter of law with respect to . . . [P]laintiff's Second Claim for Relief (N.C. Wage and Hour Act), and the Third Claim for Relief (N.C. Gen.Stat. § 75-1, et seq.); . . . [and Plaintiff] is entitled to judgment as a matter of law with respect to . . . [D]efendant's Second Cause of Action (North Carolina Trade Secrets Protection Act, N.C. Gen.Stat. § 66-152, et seq.) and . . . [D]efendant's Third Cause of Action (Temporary, Preliminary, and Permanent Injunctive Relief)[.][1]
The court denied Defendant's motion for summary judgment on Plaintiff's breach of contract claim and, likewise, denied Plaintiff's motion for summary judgment on Defendant's breach of contract counterclaim. Both parties appeal.
Standard of Review
Our Court reviews de novo a trial court's ruling on a motion for summary judgment. Edwards v. GE Lighting Systems, Inc., ___ N.C.App. ___, ___, 668 S.E.2d 114, 116 (2008). Where a trial court has granted a motion for summary judgment, "the two critical questions on appeal are whether, on the basis of the materials presented to the trial court, (1) there is no genuine issue of material fact, and (2) the moving party is entitled to judgment as a matter of law." Nationwide Mut. Fire Ins. Co. v. Mnatsakanov, ___ N.C.App. ___, ___, 664 S.E.2d 13, 15 (2008). The evidence must be viewed in the light most favorable to the non-moving party. Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C.App. 729, 733, 504 S.E.2d 574, 577 (1998).
The trial court's order granting partial summary judgment for each party is an interlocutory order. "`An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.'" North Iredell Neighbors for Rural Life v. Iredell County, ___ N.C.App. ___, ___, 674 S.E.2d 436, 439 (2009) (quoting Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950), reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950)).
[A]n interlocutory order is immediately appealable only under two circumstances. First, if the order or judgment is final as to some but not all of the claims or parties, and the trial court certifies the case for appeal pursuant to N.C. Gen.Stat. § 1A-1, Rule 54(b), an immediate appeal will lie. . . . The other situation in which an immediate appeal may be taken from an interlocutory order is when the challenged order affects a substantial right of the *873 appellant that would be lost without immediate review.
Embler v. Embler, 143 N.C.App. 162, 164-65, 545 S.E.2d 259, 261 (2001) (internal quotation marks and citations omitted). "A substantial right is one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment." Id. at 165, 545 S.E.2d at 262 (internal quotation marks and citations omitted). "The right to avoid the possibility of two trials on the same issues can be a substantial right that permits an appeal of an interlocutory order when there are issues of fact common to the claim appealed and remaining claims." Allen v. Sea Gate Ass'n, Inc., 119 N.C.App. 761, 763, 460 S.E.2d 197, 199 (1995) (citation omitted).
Plaintiff's N.C. Wage and Hour Act claim arises out of Plaintiff's employment agreement with Defendant, as does Plaintiff's breach of contract claim, which remains before the trial court. If we dismiss Plaintiff's appeal with respect to the N.C. Wage and Hour Act claim and a later appeal is successful, Plaintiff will be required to present the same evidence of Defendant's breach of the employment agreement that he will present on his remaining breach of contract claim. Should this occur, the same evidence will be presented to different juries on the same factual issue, which could result in inconsistent verdicts. Thus, Plaintiff's appeal of the trial court's dismissal of his Second Claim for Relief under the N.C. Wage and Hour Act affects the substantial right of avoiding two trials on the same issues, and is properly before us. See id.
Also before us on appeal is Defendant's trade secrets claim. This claim does not involve the issue of Defendant's breach of the employment agreement, but it does arise out of the same facts common to the remaining claims. In the interests of judicial economy, we elect to also review Defendant's appeal. See Robinson, Bradshaw & Hinson, P.A. v. Smith, 139 N.C.App. 1, 9, 532 S.E.2d 815, 820 (2000) (where interlocutory order was not immediately appealable, our Court elected to review the defendants' appeal "in the interests of judicial economy and pursuant to our discretionary powers").
Plaintiff's Appeal
Plaintiff argues on appeal that the trial court erred in granting Defendant's motion for partial summary judgment because the North Carolina Wage and Hour Act applies to a nonresident employee who performs work in this State. See N.C. Gen.Stat. § 95-25.1 (2007). Specifically, Plaintiff argues this Act applies to the employment of (1) a resident of California (2) who managed a Michigan facility (3) for a corporation with an office in Greensboro, North Carolina, (4) where the business required the employee to perform duties in North Carolina up to eighteen times per year, and (5) where the parties agreed that North Carolina law governed the employment agreement. We are not persuaded.
The Wage and Hour Act provides in pertinent part that:
(a) This Article shall be known and may be cited as the "Wage and Hour Act."
(b) The public policy of this State is declared as follows: The wage levels of employees, hours of labor, payment of earned wages, and the well-being of minors are subjects of concern requiring legislation to promote the general welfare of the people of the State without jeopardizing the competitive position of North Carolina business and industry. The General Assembly declares that the general welfare of the State requires the enactment of this law under the police power of the State.
N.C. Gen.Stat. § 95-25.1.
Our Court recently considered the applicability of the Wage and Hour Act to a nonresident employee working outside of North Carolina in the factually similar case, Sawyer v. Market America, Inc., ___ N.C.App. ___, 661 S.E.2d 750, disc. review denied, 362 N.C. 682, 670 S.E.2d 235 (2008). In Sawyer, the plaintiff, Sawyer, was an Oregon resident and was employed as an independent contractor by Market America, Inc. ("Market America"), a North Carolina corporation based in Greensboro, North Carolina. Id. at ___, 661 S.E.2d at 751. The parties met in Greensboro on 1 December 2004 and executed an independent contractor agreement which provided that North Carolina law *874 should apply to disputes under the agreement. Id. at ___, 661 S.E.2d at 751-52. Sawyer performed services for Market America outside of North Carolina from December 2004 until his contract was terminated on 30 January 2006. Id. at ___, 661 S.E.2d at 752. Sawyer subsequently filed suit against Market America alleging violation of the Wage and Hour Act. Id. In granting summary judgment for Market America, the trial court ruled that "the North Carolina Wage [and] Hour Act does not apply to [Sawyer] as an individual who resides and primarily works outside of the State of North Carolina[.]" Id. (emphasis added). Our Court affirmed the ruling of the trial court, holding that the "Wage and Hour Act does not apply to the wage payment claims of a nonresident who neither lives nor works in North Carolina." Id. at ___, 661 S.E.2d at 753. We placed emphasis on the trial court's ruling in Sawyer to note that it does not appear that Sawyer never worked in North Carolina, but rather that Sawyer rarely worked in North Carolina. See id.
The present case is nearly indistinguishable from the facts in Sawyer. Plaintiff is a nonresident, who worked primarily outside of the State of North Carolina, and whose employment agreement stipulated that North Carolina law was to apply. See id. at ___, 661 S.E.2d at 752. Plaintiff worked primarily in Michigan and spent at most eighteen days working within North Carolina. Indeed, the only distinguishing fact between Sawyer and the present case is the fact that Plaintiff participated in almost daily conference calls with Defendant's Greensboro, North Carolina office. Despite this factual difference, our analysis in the present case is properly informed by the analysis in Sawyer.
In Sawyer, we noted that "[t]he U.S. Supreme Court has long held that `[l]egislation is presumptively territorial and confined to limits over which the law-making power has jurisdiction.'" Id. at ___, 661 S.E.2d at 754 (quoting Sandberg v. McDonald, 248 U.S. 185, 195, 39 S. Ct. 84, 63 L. Ed. 200, 204 (1918) (citations omitted)). Our own Supreme Court has echoed this sentiment:
The law is unmistakably clear that the Legislature has no power to enact statutes, even though in general words, that can extend in their operation and effect beyond the territory of the sovereignty from which the statute emanates. . . . Prima facie, every statute is confined in its operation to the persons, property, rights, or contracts, which are within the territorial jurisdiction of the legislature which enacted it. The presumption is always against any intention to attempt giving to the act an extraterritorial operation and effect. . . . No presumption arises, from a failure of the state through its legislative authority to speak on the subject, that the state intends to grant any right, privilege, or authority under its laws to be exercised beyond its jurisdiction.
McCullough v. Scott, 182 N.C. 865, 877-78, 109 S.E. 789, 796 (1921) (citations omitted). Therefore, we must decide if an individual who does not live within the State and who worked primarily outside the State, but communicated daily with co-workers within the State, is within the jurisdiction of the Wage and Hour Act. See id. In other words, is the fact that Plaintiff participated in daily conference calls with Defendant's Greensboro, North Carolina office enough to allow Plaintiff the protection of the Wage and Hour Act where he otherwise would not have had this protection under Sawyer? We hold that it is not. A daily phone call to North Carolina is insufficient to bring Plaintiff within the protection of the Wage and Hour Act where he otherwise would not have had such protection.
Plaintiff also argues that he is entitled to the protection of the Wage and Hour Act because the employment agreement stipulates that it shall be governed by North Carolina law. We considered this argument in Sawyer where the parties had also contractually agreed that North Carolina law was to apply. In Sawyer, we applied "the substantive law of North Carolina to our determination of the territorial ambit of the North Carolina Wage and Hour Act[,]" and held "that the choice of law provision in the parties' contract, although it requires us to apply North Carolina law, does not change the limits or requirements of the North Carolina statutes thus applied." Sawyer, ___ *875 N.C.App. at ___, 661 S.E.2d at 753. We are bound by our decision in Sawyer and hold that the choice of law provision in the employment agreement sub judice does not give extraterritorial application to the Wage and Hour Act. See id. Plaintiff's assignment of error is overruled.
Defendant's Appeal
Defendant argues the trial court erred in granting partial summary judgment for Plaintiff because Plaintiff's actions constituted spoliation of the evidence, which severely impeded Defendant's ability to prove its claim under the North Carolina Trade Secrets Protection Act ("TSPA").
Under the TSPA, a trade secret is
business or technical information, including but not limited to a formula, pattern, program, device, compilation of information, method, technique, or process that:
a. Derives independent actual or potential commercial value from not being generally known or readily ascertainable through independent development or reverse engineering by persons who can obtain economic value from its disclosure or use; and
b. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
N.C. Gen.Stat. § 66-152(3) (2007). Under the TSPA, the owner of a trade secret may bring a civil action for the misappropriation of the trade secret. N.C. Gen.Stat. § 66-153 (2007). In order to survive a motion for summary judgment, the nonmovant must allege sufficient facts to allow a reasonable finder of fact to conclude that the information at issue meets the two above stated requirements of a trade secret under N.C. Gen.Stat. § 66-152(3). Wilmington Star-News, Inc. v. New Hanover Reg'l Med. Ctr., Inc., 125 N.C.App. 174, 180, 480 S.E.2d 53, 56 (1997) (In order to survive the defendant's motion for summary judgment, the plaintiff, a health maintenance organization operator, was required to show negotiated price lists were, in fact, trade secrets.).
A prima facie case of misappropriation of trade secrets is
established by the introduction of substantial evidence that the person against whom relief is sought both:
(1) Knows or should have known of the trade secret; and
(2) Has had a specific opportunity to acquire it for disclosure or use or has acquired, disclosed, or used it without the express or implied consent or authority of the owner.
N.C. Gen.Stat. § 66-155 (2007). Thus, a prima facie case does not exist without a showing of the trade secret the person against whom relief is sought knows or should have known. See N.C. Gen.Stat. § 66-155. Summary judgment should be granted upon the nonmovant's failure to identify that information which it claims to be a trade secret that was misappropriated.
Defendant argues Plaintiff violated the TSPA by "wrongfully misappropriating and using [Defendant's] trade secrets[.]" Because Plaintiff deleted all of the information stored on his company-issued computer, Defendant was unable to identify the trade secret information that Plaintiff allegedly improperly used.
Elizabeth MeHaffey ("MeHaffey"), the Executive Vice President and general counsel to Timco, testified as follows when asked at a deposition which trade secrets Plaintiff allegedly misappropriated:
He I don't know what he shared with anyone else. All I know is that he offered to share at least [Defendant's] business with information with third parties, including our customers' vendors and what we consider to be competitors. I also he's told us that he retained or didn't return to us proprietary information that was on a company computer. I don't know what he did with that information. I don't even know he wouldn't tell us what the scope of that information was, so
MeHaffey also testified that Plaintiff referred to improvements he had made to Defendant's business practice and shop processes in his resume and correspondence with potential employers. According to MeHaffey, Defendant interpreted these references as an offer by Plaintiff "to bring that to *876 whoever his next employer is." Finally, MeHaffey provided the following response when asked to identify the harm Defendant suffered as a result of Plaintiff's actions:
A. We believe that our reputation was harmed. We believe that there was-because of the results, what would have had to happen when he was doing this, the termination of his employment, that the shop was harmed from that.
Q. The shop was harmed because of what?
A. Because of the turnover there that had to occur.
Q. Because [Plaintiff] was no longer working there?
A. Because he breached his employment agreement and we couldn't have somebody continuing to do that.
Q. Okay. So whatever he had done businesswise when you decided to fire him, that was harm because you had to fire him; is that what you're saying?
A. I think it was a it was a disruption to the shop, certainly. I think we lost credibility in the market.
Q. And that was because you fired [Plaintiff]?
A. No. Because [Plaintiff] is out shopping, telling how his mission is complete, while we're holding him out on our web site as our GM.
Q. And credibility in the market, specifically to whom do you feel like can you identify anybody specifically that you feel like you lost credibility with?
A. I don't know. You know, I'm not the person most knowledgeable about what customers have said.
Defendant cannot identify the specific information which it argues constituted trade secrets and that it claims Plaintiff misappropriated. Accordingly, Defendant has not established a prima facie case that Plaintiff misappropriated trade secrets.
Defendant argues that its inability to establish a prima facie case on its trade secrets cause of action was caused by Plaintiff's misconduct. Specifically, Defendant contends that Plaintiff's conduct in erasing his company-issued computer's hard drive constitutes evidence spoliation. The remedy for Plaintiff's misconduct, according to Defendant, should be the creation of a "presumption that the destroyed evidence goes to the merits of the case and that the evidence was adverse to the party that destroyed it." Accordingly, Defendant asserts it should be presumed that (1) the destroyed records were relevant to Defendant's case, (2) the destroyed information was confidential and proprietary, and (3) Plaintiff misappropriated the data involved.
"The spoliation doctrine recognizes that where a party fails to produce certain evidence relevant to the litigation, the finder of fact may infer that the party destroyed the evidence because the evidence was harmful to its case." Outlaw v. Johnson, 190 N.C.App. 233, ___, 660 S.E.2d 550, 559 (2008). Defendant argues that the evidentiary inference allowed by the spoliation doctrine should apply in this case so as to permit the specific inference that the information erased from Plaintiff's hard drive constituted trade secrets and that Plaintiff misappropriated that information. We cannot agree.
Although spoliation of evidence permits an inference that the destroyed evidence was unfavorable to the party that destroyed it, the inference does not
["]supply the place of evidence of material facts and does not shift the burden of proof so as to relieve the party upon whom it rests of the necessity of establishing a prima facie case, although it may turn the scale when the evidence is closely balanced.["]
McLain v. Taco Bell Corp., 137 N.C.App. 179, 183-84, 527 S.E.2d 712, 716 (quoting Doty v. Wheeler, 120 Conn. 672, 182 A. 468, 471 (1936)), disc. review denied, 352 N.C. 357, 544 S.E.2d 563 (2000). Furthermore, the adverse inference "`is permissive, not mandatory.'" Id. at 185, 527 S.E.2d at 717 (quoting Blinzler v. Marriott Int'l, Inc., 81 F.3d 1148, 1159 (1st Cir.1996)). "For this reason, it is improper to base the grant or denial of a motion for summary judgment on evidence of spoliation. It is not an issue to *877 be decided as a matter of law, and cannot, by its mere existence, be determinative of a claim." Sunset Beach Dev., LLC v. AMEC, Inc., ___ N.C.App. ___, ___, 675 S.E.2d 46, 58 (2009).
In Hawley v. Cash, 155 N.C.App. 580, 574 S.E.2d 684 (2002), this Court considered the applicability of the spoliation doctrine to a plaintiff's claim for punitive damages. In Hawley, the "plaintiff appealed the trial court's granting of defendants' motion for partial summary judgment on plaintiff's punitive damages claim[,]" and argued that the defendants' alleged spoliation of evidence prevented him from proving his claim. Id. at 586, 574 S.E.2d at 688. We affirmed the order of the trial court, noting that the "[p]laintiff did not forecast any evidence that would have supported a punitive damages claim. Further, [the] plaintiff points to nothing that might be contained in the discovery material he claims was inappropriately destroyed which would support such a claim." Id. at 586, 574 S.E.2d at 688.
Likewise, in the present case, Defendant has not identified any information destroyed by Plaintiff that could support a claim of misappropriation of trade secrets. Defendant has produced no evidence that Plaintiff misappropriated any trade secrets, nor has Defendant produced evidence of any damages incurred as a result of the alleged misappropriation. Because Defendant has presented no independent evidence to establish or support its TSPA claim, the trial court did not err in granting Plaintiff's motion for summary judgment on this claim. Defendant's assignment of error is overruled.
As to each party's appeal, the order of the trial court is AFFIRMED.
Judges STEELMAN and GEER concur.
NOTES
[1] The parties do not assign as error the trial court's grant of summary judgment on Plaintiff's Section 75 claim and Defendant's Third Cause of Action on this appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318925/ | 94 S.E.2d 797 (1956)
244 N.C. 679
STATE
v.
Clarence SUTTON, Jr.
No. 292.
Supreme Court of North Carolina.
October 31, 1956.
*798 Atty. Gen. George B. Patton, Asst. Atty. Gen. Samuel Behrends, Jr., for the State.
J. Harvey Turner, Kinston, for defendant.
DENNY, Justice.
The defendant in his first assignment of error challenges the right of the State to put him on trial for speeding and reckless driving on the ground that he was arrested by a policeman of the City of Kinston outside the corporate limits of the City, citing Wilson v. Mooresville, 222 N.C. 283, 22 S.E.2d 907, 911.
In the above cited case, Winborne, J., now Chief Justice, in considering the authority of a municipal police officer to make an arrest outside the corporate limits of his municipality, said: "* * * in the absence of statutory authority, the power of a sheriff or other peace officer is limited to his own county, township, or municipality, and he cannot with or without warrant make an arrest out of his own county, township or municipality, where the person to be arrested is charged with the commission of a misdemeanor. Beyond the limits of his county, township, or municipality his right to arrest for misdemeanor is no greater than that of a private citizen." G.S. § 160-21.
We concur in what was said in the above case. Even so, we know of no authority that prohibits or bars a prosecution because the arrest was unlawful.
In 15 Am.Jur., Criminal Law, section 317, page 15, et seq, it is said: "As a general rule, the mere fact that the arrest of an accused person is unlawful is of itself no bar to a prosecution on a subsequent indictment or information, by which the court acquires jurisdiction over the person of the defendant." Ker v. Illinois, 119 U.S. 436, 7 S. Ct. 225, 30 L. Ed. 421; State v. May, 57 Kan. 428, 46 P. 709; Commonwealth v. Tay, 170 Mass. 192, 48 N.E. 1086; People v. Miller, 235 Mich. 340, 209 N.W. 81; People v. Ostrosky, 95 Misc. 104, 160 N.Y.S. 493; 34 N.Y.Cr.R. 396; State v. McClung, 104 W.Va. 330, 140 S.E. 55, 56 A.L.R. 257. For additional authorities in support of the above view, see Annotation 56 A.L.R. 260.
*799 It is likewise said in 22 C.J.S., Criminal Law, § 144, p. 236 et seq.: "The illegal arrest of one charged with crime is no bar to his prosecution if all other elements necessary to give a court jurisdiction to try accused are present, a conviction in such a case being unaffected by such unlawful arrest."
In the instant case, the defendant does not challenge the validity of the warrant upon which he was tried. Moreover, he concedes in his brief that in those jurisdictions where the question he is raising has been raised, the general rule is that the illegality of arrest does not affect the jurisdiction of the court. This assignment of error is overruled.
The defendant's ninth assignment of error is to the following portion of the court's charge to the jury: "Now a mere unintentional violation of a traffic law will not constitute reckless driving, but if one intentionally violates a traffic law, that constitutes reckless driving."
In another part of the charge, the court instructed the jury with respect to reckless driving in substantial compliance with what this Court said on the subject in State v. Folger, 211 N.C. 695, 191 S.E. 747, 748, in which case the Court, speaking through Connor, J., said: "A person is guilty of reckless driving (1) if he drives an automobile on a public highway in this State, carelessly and heedlessly in a willful or wanton disregard of the rights or safety of others, or (2) if he drives an automobile on a public highway in this State without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property." Nevertheless, in our opinion, this instruction did not cure the unequivocal statement complained of, to wit, "if one intentionally violates a traffic law, that constitutes reckless driving."
The defendant is entitled to a new trial on the count charging him with reckless driving, and it is so ordered.
We find no error in the trial below on the count charging the defendant with speeding in excess of 80 miles per hour. However, since the sentence on that count is to begin at the expiration of the sentence on the count charging the defendant with reckless driving, the judgment on the speeding count is set aside and the cause remanded for judgment.
Remanded for judgment on the count charging the defendant with speeding.
New trial on the count charging the defendant with reckless driving.
JOHNSON, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318924/ | 198 Va. 425 (1956)
HILL HARDWARE CORPORATION
v.
LAWRENCE A. HESSON.
Record No. 4544.
Supreme Court of Virginia.
September 4, 1956.
Walter H. Carter and Henry M. Sackett, Jr. (Williams, Roberston, Sackett & Blackburn, on brief), for the plaintiff in error.
William Rosenberger, Jr. (Perrow & Rosenberger, on brief) for the defendant in error.
Present, All the Justices.
1. One Moss, a friend of defendant Hesson, agreed as an act of friendship and without thought of pay, to come to the house of Hesson's father to repair a pump. While riding in Hesson's car on the way to the house for this purpose, he was injured in a collision between the car and one of plaintiff's trucks. In these circumstances he was a guest within the meaning of Code 1950, section 8-646.1, and not a paying passenger. The mere giving and receiving of friendly reciprocal benefits between driver and occupant does not change the latter's status as a guest.
2. Moss having sued Hesson and plaintiff as joint tort feasors, plaintiff effected a compromise settlement in which Hesson refused to join. Plaintiff brought the instant action under Code 1950, section 8-627, to recover of Hesson half the amount paid. But since Hesson was not proved guilty of gross negligence, Moss had no enforceable claim against him, and plaintiff was not entitled to contribution from him.
Error to a judgment of the Circuit Court of Amherst county. Hon. Edward Meeks, judge presiding. The opinion states the case.
MILLER
MILLER, J., delivered the opinion of the court. *426
John W. Moss was seriously injured when a truck owned by Hill Hardware Corporation (hereinafter called Hill) and driven by its employee, William H. Mosby, collided with an automobile owned and operated by Lawrence A. Hesson in which Moss was riding. In an action for damages instituted by Moss against Hill and Hesson, it was alleged that the collision and resultant injuries were caused by the joint and concurring negligence of the two defendants.
After institution of that action by Moss against the two alleged tort feasors, Hill made a compromise settlement with Moss for $23,500, but before doing so, Hill notified Hesson and asked him to contribute to the settlement. Hesson declined to contribute and after the settlement was concluded, Hill instituted this action under | 8-627, Code of 1950, [1] against Hesson for $11,750, half of the amount paid to Moss in settlement of his claim. Upon trial of Hill's action against Hesson, a verdict was returned in favor of Hesson and from judgment entered thereon, we granted Hill an appeal.
In his assignments of error Hill states that prejudicial error was committed by the court in the granting and refusing of instructions, but Hesson asserts that the evidence is insufficient to support any verdict other than one in his favor. These claims require that the evidence be stated in some detail.
George Hesson and his son, Lawrence Hesson, reside in Riverville, Virginia, but they live in different homes. On Saturday, June 14, 1952, the water pump at George Hesson's residence was out of order, and he was anxious to have it promptly repaired. John W. Moss, an employee of the Chesapeake and Ohio Railway, who lives in Gladstone, Virginia, about five miles from Riverville, is adopt at plumbing work and about a week previously he had installed a water pump and bathroom fixtures in Lawrence Hesson's home. When Lawrence Hesson learned that the pump at his father's residence was out of order, he called Moss on the telephone and requested him to come and repair the pump. When first asked, Moss stated that he planned to go to Lynchburg and would not be able to do the work. However, when the request was repeated and Lawrence Hesson offered to drive to Gladstone and get him and carry him back after the repairs had been made, he acceded to the request.
Moss and the Hessons had been friends for years, and no charge was to be made for making the repairs which it was believed would *427 not take much time. Moss said that he was going to do the job as a friendly and neighborly act.
Lawrence Hesson, accompanied by his brother-in-law, J. B. Boyle drove to Gladstone to get Moss. The necessary tools were brought by Moss, and he, Hesson, and Boyle occupied the front seat of the car on the trip back to Riverville. They proceeded southwardly along route 622, a hard-surfaced sixteen-foot wide secondary state highway which extends in a northerly and southerly direction. State route 601, a gravel-surfaced secondary state road extends in an easterly and westerly direction, and between Gladstone and Riverville it intersects route 622 from the west, but it does not extend across highway 622. Where route 601 intersects route 622, it enters at an ascending grade and fans out in the shape of a "Y"; it was at this intersection that the collision occurred about three o'clock in the afternoon.
Mosby, who was driving the Hill truck eastwardly along route 601, intended to turn left and proceed northwardly on route 622, but just as the truck entered the intersection it collided with the car. After the collision Hesson's car slid sideways down the road, rolled over and came to rest on its wheels on the left edge of route 622 about 129 feet south of the point of collision.
A bank at the northwest corner of the intersection upon which some vegetation and bushes were growing materially limited the view of drivers approaching the intersection from the west on route 601 or from the north on route 622.
Boyle testified that Hesson was driving at 35 to 40 miles an hour and that the truck, which he first saw when it was about six or seven feet from the intersection, entered route 622 and struck the right rear fender of the car a "pretty fast lick and hard." When asked if Hesson ever slowed up or made any effort to stop or turn his car aside, he answered, "He didn't have time."
Lawrence Hesson testified that he was not driving over 35 or 40 miles an hour, and that he was about ten feet from the intersection when he saw the truck to his right about ten feet down the hill. He further said that there is a slight down grade on route 622, that the upgrade on route 601 as it enters route 622 is "right steep," and there were some bushes which prevented him from seeing the truck sooner which was being driven on the left side of route 601 and moving "pretty fast" when he saw it, and it struck his rear fender a "terrific blow." He also said that he was familiar with the road, assumed *428 that he had the right of way and did not apply his brake, reduce speed or turn before his car was struck. In explanation he said, "I didn't think he was coming up there and hit me." To further questions he said that the truck was coming up the hill and if Mosby had applied his brakes, he could have easily stopped and avoided the collision.
The depositions of Moss were taken, and he said that he did not see the truck before the collision, but that Hesson was driving at a moderate rate of speed, "I would say * * * around 35 to 40, maybe 45" and there was nothing about Hesson's speed that caused him any alarm.
Mosby testified that as he approached route 622 on an ascending grade, he "pulled down very slow" to ease up into the roadway for his vision to the left was obstructed by the bank and bushes, and as he "nosed into the road" in an effort to see to his left, the Hesson car "shot by me and we met together there." He said that "according to my imagination, he was running as much as fifty miles an hour. * * * It seemed like he was running very fast. He just flashed by me." He also said that he came up the incline about 5 to 10 miles an hour because he knew he had to stop before going into the road, and his wheels had reached the hard surface of route 622 with the bumper out over the road when the front of Hesson's car passed, and its rear fender came in contact with the truck's bumper.
Two other occupants of the Hill truck, neither of whom knew how to drive a motor vehicle, i.e., Mosby's wife, Katherine Mosby, and his helper, William Morgan, both seated on the front seat, did not see the Hesson car until it was right in front of them just as it "hit." They said it was going "real fast * * * running pretty fast." Morgan also said that Mosby couldn't see to his left because of the "high bushes and the bank * * *," and he stopped and then "pulled on out into that road" in low gear and the rear fender of the Hesson car struck the bumper of the Hill truck.
After overruling Hesson's motion to strike the evidence, the Court held that Moss was a guest in Hesson's car and that there could be no recovery by Hill unless it proved that Hesson was guilty of gross negligence that contributed as a proximate cause to the accident. Hesson contended that the evidence was insufficient to sustain a finding of gross negligence and objected to the submission of that issue to the jury. In submitting to the jury the issue of whether or not Hesson was grossly negligent, the court also instructed as to *429 which driver had the right of way at the intersection and the instructions submitting these issues to the jury were objected to by Hill and appropriate exceptions taken.
We first review the court's holding that Moss was a guest in Hesson's car.
When Lawrence Hesson agreed to drive to Gladstone and get Moss, he was acting for his father who would derive benefit from the work that Moss was to do, yet none of the three intended or expected that any business relationship be created. Each knew and realized that no contractual status existed between Moss and either of the Hessons, for the service to be rendered was considered by all as a gratuity and friendly act.
Section 8-646.1, Code 1950, provides in part:
"No person transported by the owner or operator of any motor vehicle as a guest without payment for such transportation * * * shall be entitled to recover damages against such owner or operator for death or injuries * * * unless such death or injury was caused or resulted from the gross negligence * * * of such owner or operator." (Emphasis added.)
In construing and applying this statute in Dickerson Miller, 196 Va. 659, 662, 85 S.E.2d 275, we said:
"In considering whether a person is a paying passenger or guest passenger, the courts of the several states which have statutes similar to this section of our Code, are in general agreement as to the principles to be applied. See 5 Am. Jur., Automobiles, | 239, p. 634. With respect to 'payment' it is not necessary that the operator of the vehicle receive actual cash in return for the transportation supplied, since services or other benefits given by the occupant, if regarded by the parties as consideration inducing the offer of transportation, may be sufficient to entitle the occupant to the status of a paying passenger, as distinguished from a guest passenger. See, for example, Hayes Brower, 39 Wash.(2d) 372, 235 P.(2d) 482, 25 A.L.R.(2d) 1431; Wilcox Keeley, 336 Mich. 237, 57 N.W.(2d) 514; 10 A.L.R.(2d) 1361."
It is generally held that it is not necessary to prove that there was an express enforceable contract between the operator and the occupant of a motor vehicle resulting from considerations moving from one to the other to raise the status of the occupant from that of a guest to that of a paying passenger. However, mere giving and receiving of friendly and reciprocal benefits and amenities between the *430 driver and occupant without any thought of creating a business or contractual relation is insufficient to change the status of a guest to that of a paying passenger within the meaning of | 8-646.1. Brown Branch, 175 Va. 382, 9 S.E.2d 285; Miller Ellis, 188 Va. 207, 49 S.E.2d 273; Davis Williams, 194 Va. 541, 74 S.E.2d 58; 10 A.L.R. 2d 1351.
It is clear that no business relationship existed between Moss and Lawrence Hesson, whether or not the latter was acting for himself or his father, and we find nothing in the conduct or undertaking of the parties to show that the trial court erred when it held that Moss was being transported by Hesson as a "guest without payment for such transportation."
Was Hesson guilty of gross negligence in the operation of his automobile? If not, there could be no finding in favor of Hill and we need not discuss the assignments of error having to do with the giving and refusing of instructions.
The evidence bearing upon this question, when viewed in the light most favorable to Hill, shows that Hesson was driving along a smooth, hard-surfaced road on a slight down grade at not over 45 miles per hour, and thus well within the limit allowed by law as he approached the intersection. At the intersection there was an embankment to his right on which some bushes were growing that limited his vision in that direction, and he was within about ten feet of the intersection when he saw the truck approaching from the west along route 601 which entered route 622 upon an ascending grade. Hesson failed to turn his vehicle or apply his brakes as the front of the truck entered the intersection and struck the rear fender of his car. He was in close proximity to the approaching truck when he saw it and explains his failure to turn or brake his vehicle by saying that he thought he had the right of way, that the driver of the Hill truck could stop in a few feet for he was proceeding uphill and concluded that he would clear the intersection without mishap. One of the occupants of Hesson's car also said that Hesson did not have time to stop or turn his car and avoid the collision as the truck suddenly entered the edge of route 622.
Hill admits that its driver was guilty of negligence that proximately contributed to the collision but contends that the evidence shows that Hesson failed to keep a proper lookout or control of his car, operated his car at an unreasonable speed and violated the right of way statute, *431 | 46-238, Code 1950, which conduct it says permits a finding of gross negligence by the jury.
Hesson insists that he and not Mosby was entitled to the right of way because the truck was leaving a gravel-surfaced road and entering an improved hard-surfaced highway. Section 46-255, Code 1950.
We need not determine which driver was entitled to the right of way at this intersection of two secondary state highways, for if it be conceded that Hesson was not entitled to the right of way, yet we find nothing in the facts and circumstances proved to sustain a finding of gross negligence on his part. He was driving at a lawful rate of speed, and the evidence does not indicate that his vehicle was not under control before the accident. Though he might have kept a more vigilant lookout and approached the intersection at a lesser speed, yet there was nothing in his conduct or in the manner in which he operated his automobile to shock reasonable men or show that he was guilty of an "utter disregard of prudence amounting to complete neglect of the safety" of the occupants of his car, which is necessary to justify a finding of gross negligence. Hershman Payne, 196 Va. 241, 83 S.E.2d 418; Sibley Slayton, 193 Va. 470, 69 S.E.2d 466; Young Dyer, 161 Va. 434, 170 S.E. 737.
For the reasons stated, the judgment of the trial court in favor of Hesson is
Affirmed.
NOTES
[1] "Contribution among wrongdoers may be enforced when the wrong is a mere act of negligence and involves no moral turpitude." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743197/ | 289 Wis. 2d 551 (2006)
710 N.W.2d 725
2006 WI App 31
TOWNSEND v. GLASHAUSER.
No. 2005AP002212 FT.
Court of Appeals of Wisconsin.
January 18, 2006.
Unpublished opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319007/ | 677 S.E.2d 114 (2009)
PATEL
v.
PATEL.
No. S09F0505.
Supreme Court of Georgia.
May 4, 2009.
*115 Davis, Matthews & Quigley, Kurt A. Kegel, Kelly R. Webb, Atlanta, for appellant.
William Robert Pike, Tyler Jennings Browning, Marietta, for appellee.
HUNSTEIN, Presiding Justice.
Dhiraj Patel ("Husband") filed for divorce from Kapila Patel ("Wife") after 22 years of marriage. Following a bench trial at which the parties testified, along with several experts regarding the value of Husband's medical practice and the parties' residential and business properties, the trial court issued a final judgment and decree of divorce. Wife's application for discretionary review of the trial court's award of alimony, its equitable division of certain property, and its denial of her request for attorney fees was granted pursuant to this Court's Family Law Pilot Project. See Wright v. Wright, 277 Ga. 133, 587 S.E.2d 600 (2003). Finding no error, we affirm.
1. (a) Wife contends that the trial court failed to properly consider the factors set forth in OCGA § 19-6-5(a)[1] in awarding her monthly alimony of $5,000 for the first year; $4,000 for the following two years; and $3,000 for the final year. Specifically, she challenges the trial court's finding that she is capable of updating her skills and reentering the work force, and its consideration of the parties' respective financial resources.
"`In the appellate review of a bench trial, this Court will not set aside the trial *116 court's factual findings unless they are clearly erroneous, and this Court properly gives due deference to the opportunity of the trial court to judge the credibility of the witnesses.' (Cit.)" [Cit.] "Furthermore, since the clearly erroneous test is the same as the any evidence rule, we will not disturb factfindings of the trial court if there is any evidence to sustain them." [Cit.]
LaFont v. Rouviere, 283 Ga. 60, 61(1), 656 S.E.2d 522 (2008). Here, there was evidence to support the trial court's finding regarding Wife's ability to work. As for the trial court's consideration of Wife's need for alimony and Husband's ability to pay,
"[i]n the absence of any mathematical formula, fact-finders are given a wide latitude in fixing the amount of alimony ... and to this end they are to use their experience as enlightened persons in judging the amount necessary for support under the evidence as disclosed by the record and all the facts and circumstances of the case." ... [Cit.]
Arkwright v. Arkwright, 284 Ga. 545, 546(2)(a), 668 S.E.2d 709 (2008). Based on our review of the record, it cannot be said that the trial court abused its discretion in determining the amount of alimony awarded to Wife.
(b) Wife also argues that the reductions in alimony after the first and third years constitute improper future modifications that are not based on a change of circumstances, as required by OCGA § 19-6-19. However, because the alimony provision set forth in the trial court's order "state[s] the exact amount of each payment and the exact number of payments to be made without other limitations, conditions or statements of intent, the obligation is one for lump sum alimony payable in installments," Winokur v. Winokur, 258 Ga. 88, 90(1), 365 S.E.2d 94 (1988), rather than periodic alimony.[2] Thus, OCGA § 19-6-19 does not apply. Rivera v. Rivera, 283 Ga. 547, 549, 661 S.E.2d 541 (2008) (lump sum alimony not subject to modification). It is within the trial court's discretion to establish an installment payment schedule for a lump sum alimony award that varies over time, see, e.g., Shepherd v. Collins, 283 Ga. 124, n. 2, 657 S.E.2d 197 (2008) (reversing finding of lump sum alimony on other grounds), and there was no abuse of such discretion here.
2. Wife argues that the trial court erred in its valuation of certain family loans, the marital residence, and the furnishings and jewelry in Wife's possession. Because there was evidence to support the trial court's factual findings on each of these issues, they will not be disturbed on appeal. LaFont, supra, 283 Ga. at 61(1), 656 S.E.2d 522.
3. Wife maintains that the trial court erred in its equitable division of property by awarding to Husband the office condominium housing his medical practice. However, "[i]n equitable actions for divorce, the factfinder possesses broad discretion to distribute marital property to assure that property accumulated during the marriage is fairly divided between the parties. ... [Cit.]" Wood v. Wood, 283 Ga. 8, 10(3), 655 S.E.2d 611 (2008). Given the overall distribution of assets between the parties and the trial court's findings of fact specific to the office condominium, it cannot be said that the trial court abused its discretion in awarding the office condominium to Husband. See id. at 10-11, 655 S.E.2d 611.
4. Finally, Wife contends that the trial court erred by failing to award attorney fees to her.
OCGA § 19-6-2(a)(1) authorizes a trial court, after considering the financial circumstances of the parties, to exercise its discretion to award attorney fees to one party in order to "ensure effective representation of both spouses so that all issues can be fully and fairly resolved." ... [Cit.]
*117 Wood, supra, 283 Ga. at 11(6), 655 S.E.2d 611. Here, the trial court found that both parties had utilized marital property to pay attorney fees. As noted in Division 1(a), supra, the trial court did consider the respective financial conditions of the parties. There was no abuse of discretion in this regard.
Judgment affirmed.
All the Justices concur.
NOTES
[1] This statute sets forth the following considerations in determining the amount of alimony: (1) the standard of living established during the marriage; (2) the duration of the marriage; (3) the age and the physical and emotional condition of both parties; (4) the financial resources of each party; (5) where applicable, the time necessary for either party to acquire sufficient education or training to find appropriate employment; (6) the contribution of each party to the marriage, including homemaking, child care, education and career building of the other party; (7) the financial condition of the parties; and (8) any other relevant factors.
[2] At oral argument, counsel for Wife maintained that the trial court's consideration of the factors set forth in OCGA § 19-6-5(a) necessarily established that the resulting award was one for periodic alimony. However, these factors are relevant for the determination of permanent alimony, whether periodic or lump sum. See, e.g., Wood v. Wood, 283 Ga. 8(1)(a), 655 S.E.2d 611 (2008) (discussing consideration of OCGA § 19-6-5(a) factors in context of lump sum alimony award). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319006/ | 94 Ga. App. 251 (1956)
94 S.E.2d 117
UNIVERSAL MATCH CORPORATION
v.
HENDRICKS.
36235.
Court of Appeals of Georgia.
Decided July 9, 1956.
Rehearing Denied July 27, 1956.
*252 Isidore A. Blanch, for plaintiff in error.
Lucian J. Endicott, contra.
GARDNER, P. J.
Counsel for the plaintiff argues that the motion to file the declaration nunc pro tunc should have been *253 allowed. The affidavit, bond and attachment shows on its face that it was executed and filed February 23, 1955, and was returnable to the March term, 1955, of the trial court. Counsel cites a number of cases in support of his contention that the case should be reversed. Counsel cites and quotes from Bailey v. Kennett, 32 Ga. App. 255 (122 S.E. 804). That case is not in point because the facts there as compared with the facts in the instant case do not warrant that ruling superseding the rules of the Civil Court of Fulton County which must perforce be followed by attorneys practicing therein. Neither is Earle v. Sayre, 99 Ga. 617 (25 S.E. 943), in point under the facts of that case as compared to the case at bar. In Coral Gables Corporation v. Hamilton, 168 Ga. 182 (147 S.E. 494), counsel quotes headnote 1a. That was a case in equity to determine jurisdictional rights and certain other rights which do not appear in the case at bar and moreover the ruling there is not a ruling on the point now before us. Counsel also cites King v. Knight, 42 Ga. App. 269 (155 S.E. 784). In that case it appears that the declaration and attachment was handed to either the clerk or the deputy clerk for the purpose of being filed. That, of course, was tantamount to being filed. In the instant case counsel did not tender the declaration and attachment, but merely stated that he was ready to file said declaration but failed to file because of the erroneous statement of a deputy clerk. In Rock Island Paper Mills Co. v. Todd, 37 Ga. 667, the ruling allowing the declaration to be filed nunc pro tunc was based on an early announcement by the court that the appearance term of court would be dispensed with, and moreover a consent order was passed dispensing with the call of the appearance docket and allowing pleas and exceptions to be filed at the next term. Therefore that case is not binding authority for reversal of the instant case. Under the facts of this case and based on the rules of the Civil Court of Fulton County the trial court did not err in refusing to allow the declaration to be filed nunc pro tunc. It follows that this ground of the appeal is without merit. Counsel for the plaintiff also contends that by his amendment allowed on September 26, 1955, subject to demurrer, he complied with the rules of the Civil Court of Fulton County concerning declarations in attachment involving less than $300. Counsel cites *254 Code § 81-1312 in support of this contention. We concede that this is a proper concept of the law but does not apply to the facts of the case at bar. The following cases are also cited in support of the position of counsel for the plaintiff in relation to his method of pleading: Cincinnati, New Orleans &c. Ry. Co. v. Pless, 3 Ga. App. 400 (60 S.E. 8); Dolvin & Co. v. Hicks, 4 Ga. App. 653 (62 S.E. 95); Penn & Watson v. McGhee, 6 Ga. App. 631 (65 S.E. 686); Silverman & Son v. Sloat, 11 Ga. App. 193 (74 S.E. 938); General Accident, Fire &c. Assurance Corp. v. Way, 20 Ga. App. 106 (92 S.E. 650); Kinney v. Kinney, 20 Ga. App. 816 (93 S.E. 496); Busby & Son v. Elliott, 22 Ga. App. 391 (95 S.E. 1014); Middlebrooks v. Carson, 23 Ga. App. 665 (99 S.E. 151); Holloman v. Baird, 36 Ga. App. 49 (135 S.E. 494); Thompson v. Wright, 22 Ga. 607; Bruce v. Conyers, 54 Ga. 678; Powell v. Cheshire, 70 Ga. 357 (48 Am. R. 572) and Alvaton Mercantile Co. v. Caldwell, 156 Ga. 317 (119 S.E. 25). We have read the cases cited by counsel and find that no case holds that the filing of a declaration and attachment is not necessary. Neither does any case cited hold that such filing is waived by the appearance on the part of the defendant. Our own research has developed no authority which holds that the plaintiff in attachment was not required to file his declaration at the first term. It follows that there was nothing to amend by. In Cochran Furniture Co. v. Corbett, 49 Ga. App. 625 (2) (176 S.E. 827), the court held: "No declaration in attachment having been filed in the attachment proceedings, at the first term, or anything equivalent thereto, in accordance with the rule of the municipal court of Atlanta with reference to the filing of declarations in attachment proceedings, the judge did not err in this case in holding that such proceedings were void." Later on in the same opinion this court held: "No reason can excuse a plaintiff in attachment from filing his declaration in attachment at the first term. "The failure of the plaintiff to file his declaration in attachment at the first term is a very serious defect, so serious, indeed, as to make it impossible to render any valid judgment in the case. The words of the statute are mandatory. "The plaintiff shall file his declaration at the first term." . . An attachment without a declaration is void and may be attacked anywhere. Calloway v. Maxwell, 123 Ga. 208.'" The *255 construction placed by a trial court upon one of its rules is usually conclusive and an appellate court will not interfere with such construction unless it is shown that such construction is manifestly wrong. See Roberts v. Kuhrt, 119 Ga. 704 (46 S.E. 856).
The Appellate Division of the Civil Court of Fulton County did not err in the judgment for any reason assigned by counsel for the plaintiff.
Judgment affirmed. Townsend and Carlisle, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319030/ | STATE OF NORTH CAROLINA
v.
KENNETH EDWARD CHANCE
No. COA08-1362
Court of Appeals of North Carolina
Filed June 2, 2009
Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State.
Robert W. Ewing, for defendant-appellant.
ROBERT C. HUNTER, Judge.
Defendant Kenneth Chance appeals from the judgment entered after this Court remanded this case for a new sentencing hearing. Defendant contends that the trial court violated N.C. Gen. Stat. § 15A-1335 (2007) by recommending he pay court costs, restitution, and fees as a condition of post-release supervision. Defendant also asserts that the amount of restitution the trial court recommended is not supported by the evidence. We find no error.
In June of 2007, defendant was convicted by a jury of misdemeanor larceny and common law robbery after a 2006 robbery of a convenience store. Defendant pled guilty to having attained habitual felon status. The trial court consolidated the charges for sentencing and imposed a term of 101 to 131 months in prison. The trial court did not recommend any restitution or other payments as a condition of post-release supervision. On appeal, this Court vacated the judgment for misdemeanor larceny based on a defect in the charging document, and remanded the case for a new sentencing hearing on the other charges. State v. Chance, ___ N.C. App. ___, 662 S.E.2d 405 (2008) (unpublished).
On 17 July 2008, after the remand, the trial court entered a judgment imposing the same term of 101 to 131 months in prison. The trial court recommended as a condition of post-release supervision that defendant pay $50.00 in court costs, $900.00 in restitution, and $2,448.00 in attorney's fees. Defendant appeals from the judgment entered after remand.
In his first argument, defendant contends that the trial court violated N.C. Gen. Stat. § 15A-1335 (2007) in the judgment entered after the remand when it recommended that he pay restitution, court costs, and attorney's fees as a condition of post-release supervision. We disagree.
"When a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same conduct, which is more severe than the prior sentence less the portion of the prior sentence previously served." N.C. Gen. Stat. § 15A-1335 (2007). A trial court's recommendation regarding payments as a condition of post-release supervision is not binding on the Department of Corrections and does not constitute additional punishment in violation of N.C. Gen.Stat. § 15A-1335. See State v. Hanes, 77 N.C. App. 222, 225, 334 S.E.2d 444, 446 (1985)(on remand, judge recommended additional condition that restitution be paid before any early release). Here, as in Hanes, the trial court's recommendation regarding payments as a condition of work release is not additional punishment as prohibited by N.C. Gen. Stat. § 15A-1335. We also note that the trial court imposed the same prison term on remand as was imposed in the original judgment. Accordingly, this assignment of error is overruled.
In defendant's other argument, he contends that the trial court's order of restitution is not adequately supported by the evidence. We disagree.
"'[T]he amount of restitution recommended by the trial court must be supported by evidence adduced at trial or at sentencing.'" State v. Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004) (quoting State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995)); see also N.C. Gen. Stat. § 15A-1340.35 (2007). "If there is `some evidence as to the appropriate amount of restitution, the recommendation will not be overruled on appeal.'" State v. Freeman, 164 N.C. App. 673, 677, 596 S.E.2d 319, 322 (2004)(quoting State v. Hunt, 80 N.C. App. 190, 195, 341 S.E.2d 350, 354 (1986)).
Here, the trial court's order of $900.00 of restitution is supported by the evidence introduced at trial. The store manager told police that defendant took thirty cartons of cigarettes. The cartons were worth approximately $30.00 each, making the total value of the property approximately $900.00. Accordingly, we find that sufficient evidence supports the trial court's order of restitution.
No error.
Judges STEELMAN and JACKSON concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/877804/ | 649 P.2d 456 (1982)
The STATE of Montana, ex rel., Colonel Joe R. SOL, Chief, Montana Highway Patrol, Plaintiff and Respondent,
v.
Vernon John BAKKER, Defendant and Appellant.
No. 82-23.
Supreme Court of Montana.
Submitted on Briefs May 20, 1982.
Decided August 11, 1982.
*457 Berger, Sinclair and Nelson; James Sinclair, Billings, for defendant and appellant.
Mike Greely, Atty. Gen., Helena, Harold F. Hanser, County Atty., Billings, for plaintiff and respondent.
HARRISON, Justice.
This is an appeal from an Order of the District Court of the Thirteenth Judicial District, County of Yellowstone, adjudging Bakker to be an habitual traffic offender and directing him to surrender his drivers license to the Montana Highway Patrol.
The complaint was filed seeking to declare defendant a habitual traffic offender. Thereafter the order to show cause was issued by the District Court requiring him to appear on August 12, 1981. Defendant secured counsel and appeared before the Honorable William J. Speare, sitting without a jury, who determined that defendant was a habitual traffic offender under the provisions of our code.
Bakker is a twenty-nine year old truck driver employed by Wymont Beverages. His sole means of support is that of driving trucks. His driving record, as introduced at the hearing showed an accumulation of a status of thirty (30) habitual offender points. The thirty (30) points represent an accumulation of ten (10) speeding violations under the provisions of Section 61-8-312, MCA. These violations occurred between January 15, 1979, and April 20, 1981. During that period the record indicated that the Montana Highway Patrol had corresponded with the defendant warning him of the accumulation of points and counseling him about future violations and the possible loss of his license.
Following post-trial motions for a new trial and to amend findings of fact and conclusions of law, and denial of same, the defendant filed his notice of appeal. The District Court entered an order, pursuant to a stipulation between the parties, staying judgment pending a decision by this Court.
The sole issue before this Court is whether Section 61-8-312, MCA, has been preempted by provisions of Section 61-8-304, MCA.
Three sections of our code are before us in considering the issue presented.
"Declaration of speed limits exception to the rule. The attorney general shall declare by proclamation filed with the secretary of state a speed limit for all motor vehicles on all public streets and highways in the state whenever the establishment of such a speed limit by the state is required by federal law as a condition to the state's continuing eligibility to receive funds authorized by the Federal Aid Highway Act of 1973 and all acts amendatory thereto or any other federal statute. The speed limit may not be less than that required by federal law, and the attorney general shall by further proclamation change the speed limit adopted pursuant to this section to comply with federal law. Any proclamation issued pursuant to this section becomes effective at midnight of the day upon which it is filed with the secretary of state. A speed limit imposed pursuant to this section is an exception to the requirements of 61-8-303 and 61-8-312, and speed in excess of the speed limit established pursuant to this section is unlawful notwithstanding any provision of 61-8-303 and 61-8-312." Section 61-8-304, MCA.
"Speed restrictions basic rule. (1) A person operating or driving a vehicle of *458 any character on a public highway of this state shall drive it in a careful and prudent manner, and at a rate of speed no greater than is reasonable and proper under the conditions existing at the point of operation, taking into account the amount and character of traffic, condition of brakes, weight of vehicle, grade and width of highway, condition of surface, and freedom of obstruction to view ahead, and he shall drive it so as not to unduly or unreasonably endanger the life, limb, property, or other rights of a person entitled to the use of the street or highway.
"(2) Where no special hazard exists that requires lower speed for compliance with subsection (1) of this section, the speed of a vehicle not in excess of the limits specified in this section or established as authorized in 61-8-309, 61-8-310, 61-8-311, and 61-8-313 is lawful, but a speed in excess of those limits is unlawful:
"(a) 25 miles per hour in an urban district;
"(b) 35 miles per hour on a highway under construction or repair;
"(c) 55 miles per hour in other locations during the nighttime, except that the nighttime speed limit on completed sections of interstate highways is 65 miles per hour.
"(3) `Daytime' means from one-half hour before sunrise to one-half hour after sunset. `Nighttime' means at any other hour.
"(4) The speed limits set forth in this section may be altered by the highway commission as authorized in 61-8-309, 61-8-310, and 61-8-313.
"(5) The driver of a vehicle shall, consistent with subsection (1), drive at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon a narrow or winding roadway and when a special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway condition." Section 61-8-303, MCA.
"Special speed limitations on trucks, truck tractors, motor-driven cycles, and vehicles towing housetrailers. (1) No person shall operate any truck or truck tractor the gross weight of which exceeds 8,000 pounds at a speed greater than 65 miles per hour on those completed sections of interstate and four-lane divided highways and 60 miles per hour on those completed sections of primary and secondary highways. However, the truck nighttime speed limit shall not exceed that of automobiles as stated in 61-8-303.
"(2) No person shall operate any motor-driven cycle at any time mentioned in 61-9-201 at a speed greater than 35 miles per hour unless such motor-driven cycle is equipped with a headlamp or lamps which are adequate to reveal a person or vehicle at a distance of 300 feet ahead.
"(3) No person shall operate a vehicle which is towing a housetrailer at a speed greater than a maximum of 50 miles per hour." Section 61-8-312, MCA.
The defendant argues that Section 61-8-312, MCA, has been preempted by the provisions of Section 61-8-304, MCA. In the instant case, action began when the State of Montana charged defendant as a habitual traffic offender. Defendant contends that with the enactment of Section 61-8-304, MCA, by the 1974 legislature, and with its subsequent amendment by the 1979 legislature, Section 66, Chapter 421, that under the established rules of statutory construction our legislature clearly intended that Section 61-8-304, MCA, is the controlling statute and preempts Section 61-8-312, MCA, as to speeding offenses. Montana Department of Revenue v. American Smelting and Refining (1977), 173 Mont. 316, 567 P.2d 901, 906; Matter of Senate Bill No. 23, Chapter 491, Montana Session Laws of 1973 (1975), 168 Mont. 102, 540 P.2d 975; Hammill v. Young (1975), 168 Mont. 81, 540 P.2d 971.
We find no argument with the cases cited and have long adhered to the position that in construing a statute the intention of the legislature must be followed, if possible. *459 Section 1-2-102, MCA. However, the intention of legislature must first be determined from the plain meaning of the words used, and if the meaning of the statute can be determined, courts may not go further and apply any other means of interpretation. State ex rel Zander v. District Court (1979), Mont., 591 P.2d 656, 36 St.Rep. 489; Haker v. Southwestern Ry Co. (1978), 176 Mont. 364, 578 P.2d 724. In this case the intent of the legislature can be ascertained from the plain meaning as written.
Section 61-8-304, MCA, makes clear that it is an exception to Sections 61-8-303, MCA, and 61-8-312, MCA, which establish the speed limit at 55 miles per hour. The basic rule statute Section 61-8-303, MCA, provides in subsection (2)(c) that a nighttime speed in excess of 65 miles per hour on the interstate highway is unlawful. The defendant was cited under Section 61-8-312, MCA, which provides that the speed limit for trucks is 65 miles per hour on interstate and four-lane divided highways, and 60 miles per hour on other highways. In addition, it restricts the nighttime speed limit for trucks as the same for automobiles, as stated in Section 61-8-303, MCA.
Here the clear meaning of the statute can be determined according to the plain-meaning rule. As set forth in Sections 61-8-303, MCA, and 61-8-312, MCA, it is obvious that these sections set the speed limits at 60 miles per hour and 65 miles per hour, and that Section 61-8-304, MCA, specifically provides that notwithstanding those limits, a speed above 55 miles per hour is unlawful as pursuant to that statute. Therefore, as in this case, a truck exceeding the 55 mile per hour speed limit on a completed section of the interstate, but not exceeding the 65 mile per hour speed limit, would be charged under Section 61-8-304, MCA. However, in the event that the truck exceeded the rate of 65 miles per hour on such a stretch of highway, the driver would be charged under Section 61-8-312, MCA. Rating these two speed limit statutes it is clear that Section 61-8-304, MCA, ensures that it is understood that speeds between 55 and 65 miles per hour are also unlawful. This is made clear by the last sentence of Section 61-8-304, MCA, which indicates that the legislature intended that Section 61-8-312, MCA, remained in effect.
In further clarification of our interpretation as given above, we look to other rules of statutory construction for guidance. That next step in the process of interpretation is looked to the purpose of the statute for guidance in its meaning. See State v. Weese (1982), Mont., 616 P.2d 371, 37 St. Rptr. 1620 at 1622.
The purpose of Section 61-8-304, MCA, was simply to put a law on the books that would ensure the continued receipt of federal highway funds, yet, impose no real penalty or hardship on violators. This is evidenced by the minimal $5 (five) fine, and the fact that no points are accessed for violation. See Chapter 60, Laws of Montana (1974). That act provides that the speed limit established by the attorney general shall terminate whenever such speed limit is no longer required by federal law. Section 3, Chapter 60, Laws of Montana (1974).
The purpose of that portion of the statute, or that which is now Section 61-8-304, MCA, was not to revise the statutory scheme relating to speed limits in general. This is made clear by reading of Section 61-8-305(2), MCA, and Section 61-8-306, MCA. Those sections basically provide that the local law may establish lower speed limits than that declared by the attorney general. In addition, to make the intent of the act perfectly clear, Section 7, Chapter 60, Laws of Montana (1974), now codified as Section 61-8-307, MCA, provides:
"This act in no way affects traffic control statutes and violations of existing statutes shall be prosecuted solely as provided therein."
Obviously, the clear intent of the legislature was to enact a new law when it passed Chapter 60. But, the laws were for a limited purpose, and that purpose was achieved by setting further exceptions to existing traffic laws and without rewriting the entire traffic regulation body of law.
*460 Finally, we note that the appellant argues that Section 61-8-304, MCA, "preempts" other sections, and in so doing, provides for "implied repeal" argument. It has been the long-established rule that repeals by implication are not favorites. Repeals by implication are not favored and courts will make every effort to reconcile the statutes in question to avoid repeals. Kuchan v. Harvey (1978), Mont., 585 P.2d 1298, 35 St.Rep. 1547. See also Lee v. State of Montana (1981), Mont., 635 P.2d 1282, 38 St.Rep. 1729. Mead, Samuel and Co., Inc. v. Dyar (1980), 127 Ariz. 565, 622 P.2d 512.
Based on the above rules of statutory construction, we find it clear that the Montana state legislature did not intend to rewrite the traffic regulations, and that Section 61-8-304 is simply an exception to the other statutes. Here the legislature only passed the section in order to ensure a continued receipt of federal highway funds. Section 61-8-304, MCA, as far as Sections 61-8-303, MCA, and 61-8-312, MCA, are concerned, applies only to speed limits between 55 miles per hour and either 60 or 65 miles per hour depending upon the type of highway offense incurred thereon.
The judgment of the District Court is affirmed.
DALY, SHEA, WEBER and SHEEHY, JJ., concur. | 01-03-2023 | 06-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318937/ | 94 Ga. App. 340 (1956)
94 S.E.2d 620
McKINNEY
v.
WOODARD.
36272.
Court of Appeals of Georgia.
Decided September 20, 1956.
*342 Miller, Miller & Miller, for plaintiff in error.
Jacobs & Gautier, contra.
NICHOLS, J.
The plaintiff in his amended motion for new trial complains of various quoted excerpts of the charge which he contends expressed an opinion by the trial judge that there was a construction contract between the parties when one of the issues was whether the contract between the parties was for the construction of a particular house of the real estate sold or whether it was just a contract for the purchase and sale of this described tract of real estate, that the wrong measure of damages was charged with reference to the contention of the defendant that there was a construction contract which the plaintiff had breached, that the charge placed an undue burden on the plaintiff with reference to the burden of proof, and that the trial court erred in failing to charge certain quoted requests to charge tendered in writing to the trial judge before he began charging the jury.
1. "A request to charge the jury, directed to the trial judge, submitted in writing before the retirement of the jury, must be entirely correct and accurate; it must be adjusted to the pleadings, the law, and the evidence in the case; it must not be argumentative; and it must not seek an expression of opinion on the part of the trial judge." New York Life Ins. Co. v. Thompson, 50 Ga. App. 413 (1) (178 S.E. 389). See also, Sims v. Martin, 33 Ga. App. 486 (5) (126 S.E. 872). In the present case the contention of the plaintiff that the trial court erred in failing to charge the jury the written requests tendered by him is without *343 merit inasmuch as such written requests were not adjusted to the pleadings and evidence.
2. The plaintiff contends that the trial court erred in charging the jury in substance that the measure of damages on the cross-action would be the cost to the defendant to bring the house up to the specifications allegedly agreed upon in the oral contract rather than that the measure of damages would be the difference in the market value of the house in its present condition and its value if it had been completed as agreed between the parties. It is unnecessary to decide if the proper charge was given the jury in this regard since the only witness that testified with reference to the costs of correcting the alleged defects testified the cost of correcting them would be approximately $3,275, while the only testimony as to the difference in the market value of the property in its present condition and its market value with the corrections made would be between $6,000 and $6,500. Therefore, if this charge was error it was harmless as far as the plaintiff, who sold the real estate, is concerned.
3. The plaintiff contends that the charge of the court placed an undue burden of proof on him. The charge of the court with reference to the burden of proof was substantially that the burden of proof was upon the plaintiff with reference to the petition and upon the defendant with reference to the allegations of the cross-action. If additional instructions were desired by the plaintiff with reference to the burden of proof they should have been the subject of timely written requests in accordance with the requirements of Code § 81-1101. See also Malleable Iron Range Co. v. Caffey, 64 Ga. App. 497 (4) (13 S.E.2d 722); and Cone v. Davis, 66 Ga. App. 229, 237 (17 S.E.2d 849).
An examination of the entire charge does not reveal that it expressed any opinion of the trial judge as contended by the plaintiff.
4. The remaining special ground of the amended motion for new trial is but an amplification of the general grounds and will not be considered separately.
The evidence presented on the trial of the case was in sharp conflict, there was hardly a word of testimony that was not contradicted by some other witness; however, the verdict returned by the jury was authorized by the evidence, and if the contention *344 of the plaintiff that the defendant was bound by his answer which alleged that the sale price was represented to the Macon Federal Savings & Loan Association in order to obtain a larger loan in correct, the verdict was still authorized by the evidence since there was evidence that the plaintiff was giving the defendant credit for the difference between the amount lent by the Macon Federal Savings & Loan Association and the sales price of real estate whatever it was.
The trial court did not err in denying the plaintiff's amended motion for new trial.
Judgment affirmed. Felton, C. J., and Quillian, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318934/ | 677 S.E.2d 763 (2009)
HARRIS
v.
The STATE.
No. A09A0239.
Court of Appeals of Georgia.
April 22, 2009.
*764 David C. Walker, Brandi Dukes Payne, for Appellant.
Steven Askew, Dist. Atty., Tony A. May, Asst. Dist. Atty., for Appellee.
PHIPPS, Judge.
Ryan Antwain Harris appeals his conviction for violating the Georgia Controlled Substance Act,[1] contending that the trial court erred in admitting his confession into evidence and that a witness's identification of him by his tattoo was not reliable. For the reasons set forth below, we affirm.
On November 15, 2003, a Georgia Bureau of Investigation agent purchased $40 worth of crack cocaine during an undercover narcotics investigation. The agent got a "brief view" of the seller of the cocaine, who approached the agent's vehicle with his shirt over his head. The agent noted the word "trap" tattooed on the seller's forearm; Harris, who bore the same tattoo, was subsequently arrested. He was interviewed by another law enforcement agent, Jordan Kight, who testified that, during the interview, Harris orally confessed to selling the cocaine. A jury found Harris guilty of the controlled substance violation, and the court denied his motion for new trial.
1. Harris contends that the court erred in admitting Kight's testimony about the confession. OCGA § 24-3-50 provides that "[t]o make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury." "[A] prima facie showing of the admissibility of a confession [is] made by evidence of compliance with OCGA § 24-3-50 in addition to evidence showing that defendant confessed after having been given his Miranda rights."[2] The state bears the burden of demonstrating the voluntariness of a confession by a preponderance of the evidence.[3] "To determine whether the state has proven that a confession was made voluntarily, the trial court must consider the totality of the circumstances."[4]
At a Jackson-Denno hearing, Harris admitted that he was given his Miranda rights at the start of the interview and that he read and signed a written waiver of those rights. The waiver included the following representation: "I understand my rights. Having these rights in mind, I am willing now to talk about the charges against me[.] I have not been threatened. I have not been promised anything. I have not been forced in any way to answer any questions or to make any statements." Harris denied, however, making an oral confession to Kight. He testified instead that Kight presented him with a prepared written confession and told him that he had to sign the document. Harris testified that he did not want to sign the document, but did so after Kight informed him that if he did not sign it he would have to post a cash bond. Kight, at the Jackson-Denno hearing, denied making such a statement to Harris or hearing anyone else make such a statement to Harris, and he testified that he never received a written confession signed by Harris. Counsel for the state was unaware of any such written confession.
Harris challenged Kight's credibility, arguing that Kight did not accurately recall the interview, and asserted at the Jackson-Denno hearing that the state had failed to meet its burden of showing that any confession made by Harris was voluntary. The court disagreed and found from a preponderance of *765 the evidence that Harris was advised of his Miranda rights, that he understood them, that he voluntarily waived them, and that he thereafter gave his oral statement freely and voluntarily without any hope of benefit or fear of injury. In so doing, the court noted that Harris had corroborated many of the facts contained in a written summary of the confession prepared by Kight after the interview.
"Unless clearly erroneous, a trial court's findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal."[5] Here, the trial court received evidence concerning, and had to choose between, competing versions of what occurred during Harris's interview. Nothing in the record demonstrates that the court's determination was clearly erroneous.
We find no merit in Harris's assertion that his confession should be deemed involuntary because he was in custody for four to five days before being interviewed. Perry v. State,[6] upon which Harris relies for this contention, addressed factors applicable when determining the voluntariness of a custodial statement made by a juvenile.[7] Because Harris was not a juvenile at the time of his interview, these factors do not apply.[8]
2. Harris enumerates as error that "the identification of [Harris] based upon his tattoo was not reliable," and he contends that he should be granted a new trial for this reason.
To the extent this claim concerns the court's admission of the identification evidence, we find no error. Harris challenged the reliability of his identification based on the tattoo through cross-examination of the agent who saw the tattoo and through eliciting evidence that another man had the same tattoo. It was the role of the jury to assess the strength of this evidence and the reliability of the agent's identification.[9]
To the extent this claim concerns the sufficiency of the evidence to support Harris's conviction, we find no error in light of the evidence of his confession.[10]
Judgment affirmed.
SMITH, P.J., and BERNES, J., concur.
NOTES
[1] OCGA § 16-13-30(b).
[2] Pruitt v. State, 176 Ga.App. 317, 321(3), 335 S.E.2d 724 (1985) (footnote omitted).
[3] State v. Ray, 272 Ga. 450(2), 531 S.E.2d 705 (2000).
[4] Gober v. State, 264 Ga. 226, 228(2)(b), 443 S.E.2d 616 (1994) (citation and punctuation omitted).
[5] Id. (citation and punctuation omitted).
[6] 175 Ga.App. 301, 333 S.E.2d 178 (1985).
[7] See Dagenhart v. State, 293 Ga.App. 744, 667 S.E.2d 627 (2008).
[8] See Reynolds v. State, 275 Ga. 548, 549-550(3), 569 S.E.2d 847 (2002).
[9] See Tucker v. State, 275 Ga.App. 611, 612, 621 S.E.2d 562 (2005).
[10] See Division 1, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318938/ | 677 S.E.2d 404 (2009)
BONE
v.
THE CHILDREN'S PLACE, INC. et al.
No. A09A0506.
Court of Appeals of Georgia.
April 7, 2009.
*405 Gillis & Creasy, James L. Creasy III, Atlanta, for appellant.
Misner, Scott & Martin, Bobby B. Terry, Atlanta, for appellees.
BLACKBURN, Presiding Judge.
In this premises liability action, Michelle Bone appeals from the trial court's order granting summary judgment in favor of The Children's Place Retail Stores, Inc. ("Children's Place") on Bone's claims arising from injuries her daughter, Mollie Frances Bone, sustained while shopping with her mother at a Children's Place store. Finding that Children's Place failed to present any evidence in support of its motion, and therefore failed to pierce the allegations set forth in Bone's pleadings, we reverse.
"On appeal from a grant of summary judgment, we conduct a de novo review of the evidence to determine if there exists a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, entitle the movant to judgment as a matter of law." Smith v. Atlantic Mut. Cos.[1]
So viewed, the record shows that Bone and the then 20-month-old Mollie were shopping at a Children's Place store in August 2006 when Mollie cut her eye on the end of a clothing rack, which was protruding out into an aisle. Acting individually, and as the natural guardian of Mollie, Bone sued Children's Place on a theory of premises liability. Bone alleged, inter alia: (1) that the placement of the clothing rack, with an uncovered, protruding edge, at a child's eye level, constituted a dangerous condition; (2) that Children's Place had actual or constructive knowledge of this dangerous condition, superior to that of Bone; and (3) that Children's Place had actual or constructive knowledge of similar injuries occurring in their stores resulting from the placement of store fixtures in such a manner that they were hazardous to young children.
On November 14, 2007, Children's Place filed a motion for summary judgment as to all of Bone's claims. To support the factual assertions contained in its motion, Children's Place relied exclusively upon Bone's deposition testimony. At the time it filed its motion for summary judgment, however, Children's Place did not file either the original or a copy of Bone's deposition with the court. Instead, counsel mailed the original, sealed deposition directly to the trial judge, together *406 with a courtesy copy of the motion for summary judgment.
Although Bone's response to the motion for summary judgment was due on December 14, 2007 (see Uniform Superior Court Rule 6.3), counsel for Children's Place agreed to an extension of time, giving Bone until January 3, 2008 to file her response. Bone's attorney, however, never filed with the trial court either a proposed consent order or other stipulation reflecting that agreement; hence, the time for responding was never extended by the trial court.
Bone's counsel filed her response, together with a request for a hearing on the summary judgment motion, on the morning of January 4, 2008. Attached as an exhibit to Bone's response was the affidavit of a former Children's Place employee, who indicated that Children's Place had knowledge of the hazard at issue. Specifically, the former employee stated that other people had snagged their clothing on the fixture that injured Mollie, "because it protruded out into the aisle."
On the afternoon of January 4, 2008, Children's Place filed a motion to strike Bone's response, including the affidavit attached thereto, as untimely filed. In that motion, counsel for Children's Place acknowledged granting Bone's counsel an extension of time in which to file a response, but argued that the extension required that the response be filed "on or before January 3, 2008."
On March 3, 2008, without a hearing on the motion for summary judgment, the trial court entered an order granting both Children's Place's motion to strike Bone's response and its motion for summary judgment. In that portion of the order granting summary judgment to Children's Place, the trial court included a footnote specifically acknowledging that "[t]he record presently contains no deposition testimony." The following day, counsel for Children's Place filed a copy of Bone's deposition with the trial court. On March 5, 2008, Bone filed her notice of appeal. Approximately one week later, on March 11, 2008, Children's Place filed a motion to supplement the record for appeal with Bone's original deposition. Following a hearing on the motion to supplement the record, the trial court denied that motion, correctly noting that "matters not part of the record at the time of judgment cannot properly become part of the record on appeal."[2]
We now turn to the merits of Bone's appeal. "[T]he fundamental basis for an owner or occupier's liability" for injuries resulting from an allegedly hazardous condition on their premises, is "that party's superior knowledge of the hazard encountered by the plaintiff." Robinson v. Kroger Co.[3] Thus, "to recover on her premises liability claim, [Bone] must demonstrate both (1) that [Children's Place] had actual or constructive knowledge of the hazard; and (2) that she lacked knowledge of the hazard, despite the exercise of ordinary care, due to actions or conditions within [the] control" of Children's Place. Freeman v. Wal-Mart Stores.[4]
"A defendant meets [its] burden [on summary judgment] by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case." (Punctuation omitted; emphasis supplied.) Kmart Corp. v. McCollum.[5] The trial court based its grant of summary judgment to Children's Place on its conclusion that "no evidence of record reflects [Children's Place's] superior knowledge of the hazard" posed by the clothing rack. The sole evidence on which the trial court *407 relied to make this finding, however, was Bone's alleged admission that "she [was] unaware of any evidence reflecting [Children's Place's] knowledge of the hazard." While Children's Place's motion for summary judgment recited this admission as an undisputed material fact, its motion reflects that Bone made this admission only in her deposition. The trial court, however, explicitly acknowledged, in two separate orders, that it did not consider Bone's deposition in granting summary judgment. Accordingly, the trial court had no basis for concluding that Children's Place had pierced the allegations of Bone's pleadings. Children's Place's "brief [supporting] the summary judgment motion citing [Bone's deposition] testimony [was] not proper evidence," (Parker v. Silviano[6]) on which to base the grant of summary judgment, because "[a]ssertions of fact contained in the briefs of the parties do not, standing alone, constitute competent evidence for the resolution of a summary judgment issue." (Punctuation omitted.) Patellis v. 100 Galleria Parkway Assoc.[7]
This result is unaffected by the trial court's decision to strike Bone's response. "As the movant for summary judgment, [Children's Place] cannot rely upon the mere assertion that its superior knowledge cannot be shown by [Bone] at trial." Parker v. Food Giant.[8] Rather, Children's Place had to "come forward with evidence tending to negate the existence of such knowledge" before Bone was obligated to offer proof of that knowledge. (Punctuation omitted.) Ware County v. Medlock.[9] Until Children's Place had done so, "the allegations of plaintiff's complaint [were] not pierced and plaintiff was under no duty to produce evidence in support of her allegations regarding defendant['s] knowledge...." Hamner v. Emory Univ.[10] See also Smith, supra, 283 Ga.App. at 351(1), 641 S.E.2d 586 ("[o]nly after the moving party makes a showing of entitlement to a judgment as a matter of law does the burden shift to the respondent to come forward with rebuttal evidence") (punctuation omitted). We do not address the correctness of a grant of summary judgment based upon the Bone deposition being a part of the record at the time of the grant of same.
For the reasons set forth above, we reverse the trial court's order granting summary judgment to Children's Place.
Judgment reversed.
ADAMS and DOYLE, JJ., concur.
NOTES
[1] Smith v. Atlantic Mut. Cos., 283 Ga.App. 349, 350, 641 S.E.2d 586 (2007).
[2] The trial court did, however, allow Bone's original deposition to be filed and become part of the record for purposes of appeal, pursuant to OCGA § 5-6-41(h). That statute provides, in relevant part, "[w]here any ... paper which requires approval or sanction of the court ... before being filed of record is disallowed ... [the] paper may nevertheless be filed, with notation of disallowance thereon, and shall become part of the record for purposes of consideration on appeal...."
[3] Robinson v. Kroger Co., 268 Ga. 735, 736(1), 493 S.E.2d 403 (1997).
[4] Freeman v. Wal-Mart Stores, 281 Ga.App. 132, 133, 635 S.E.2d 399 (2006).
[5] Kmart Corp. v. McCollum, 290 Ga.App. 551, 659 S.E.2d 913 (2008).
[6] Parker v. Silviano, 284 Ga.App. 278, 281(2), 643 S.E.2d 819 (2007).
[7] Patellis v. 100 Galleria Parkway Assoc., 214 Ga.App. 154, 155(3), 447 S.E.2d 113 (1994).
[8] Parker v. Food Giant, 193 Ga.App. 337, 337(1), 387 S.E.2d 615 (1989).
[9] Ware County v. Medlock, 192 Ga.App. 542, 543, 385 S.E.2d 429 (1989).
[10] Hamner v. Emory Univ., 190 Ga.App. 788, 789, 380 S.E.2d 83 (1989). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260964/ | 131 Cal.Rptr.2d 628 (2003)
106 Cal.App.4th 1250
The PEOPLE, Plaintiff and Respondent,
v.
Bradford Gary BURBINE, Defendant and Appellant.
No. A096825.
Court of Appeal, First District, Division Two.
March 12, 2003.
Review Denied June 11, 2003.
*629 Roberta Simon, Oakland, Attorney for Appellant.
Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Acting Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Bridget Billeter, Deputy Attorney General, Attorneys for Respondent.
RUVOLO, J.
I.
INTRODUCTION
It is settled that a felony defendant's original aggregate prison term cannot be increased on remand for resentencing following a partially successful appeal. (See, e.g., People v. Serrato (1973) 9 Cal.3d 753, 763-764, 109 Cal.Rptr. 65, 512 P.2d 289, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1, 189 Cal.Rptr. 855, 659 P.2d 1144; People v. Craig (1998) 66 Cal.App.4th 1444, 1447, 78 Cal.Rptr.2d 659.) This case presents the converse question: whether, after the reversal of one count of a felony conviction, the defendant's aggregate prison term must be decreased upon resentencing.
We hold that on remand following the reversal of a felony count for which a subordinate term had been imposed, neither lack of jurisdiction nor res judicata bars the trial court from reconsidering its prior sentencing choices made under the normal rules of felony sentencing, including imposing a higher term for the principal, or base, term, so long as the total prison term for all affirmed counts does not exceed the original aggregate sentence.
We also reject appellant's subsidiary contentions that the trial court: 1) abused its discretion in imposing the upper term for the principal term; 2) erred by applying improper aggravating factors; and 3) erred by refusing to consider letters submitted by the defense in mitigation. We *630 also conclude that appellant's trial counsel did not render ineffective assistance by failing to call the letters in mitigation to the court's attention in connection with the resentencing, and, in any event, there was no prejudice to appellant because the letters were not entitled to any mitigating value. Accordingly, we affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant Bradford Gary Burbine was found guilty by a jury of one count of continuous sexual abuse of a child (Pen. Code, § 288.5)[1] and two counts of committing a lewd act on a child (§ 288, subd. (a)).[2] Each of the three counts involved a different victim. On the day of the original sentencing hearing, appellant submitted letters from his family and friends, to be considered in mitigation. The court declined to review the letters because they were not timely submitted. Rejecting the prosecutor's contention that appellant should receive the aggravated term for the continuous sexual abuse count, the court sentenced appellant to the middle term of 12 years for that count, and added two consecutive terms of 2 years each, representing one-third the middle term for each of the lewd act counts, for a total prison term of 16 years.
Appellant filed an appeal and a habeas corpus petition, which we considered together in Burbine I. Only three of the issues addressed in our prior opinion are relevant to the present appeal.[3] First, we held that the court's refusal to consider appellant's untimely letters in mitigation was not an abuse of discretion. Second, we held that even if appellant's counsel was ineffective in not presenting the letters in a timely fashion, there was no reasonable probability that consideration of the letters would have led to a lesser sentence, because the letters were premised on the view that appellant was not guilty, and thus were entitled to no weight in mitigation.
Third, and most significantly for the purpose of the present appeal, we accepted appellant's argument that his conviction on one of the lewd act counts was invalid, because the jury instructions on that count erroneously failed to require jury unanimity as to the particular act on which the conviction was based. We therefore reversed the conviction on that count only, and remanded the case for resentencing.
At the resentencing, the judge listed the materials he had reviewed in preparation for the hearing, and did not mention the letters in mitigation that appellant submitted for the original sentencing. When the judge asked whether there was anything else he should consider, appellant's counsel responded "No."
The prosecution's memorandum on resentencing requested that the court impose the upper term on both the principal and the subordinate counts, to run concurrently. At the hearing, appellant's counsel argued that the trial judge was precluded from reconsidering his original decision to *631 impose the middle term on the continuous sexual abuse count, which had been designated as the principal term of appellant's sentence. The judge rejected this argument, reasoning that the original sentence had been "made up of inter-dependent [sic ] components." He explained that he understood this court's remand to imply that he was "back to square one again" with regard to sentencing on the remaining counts.
The judge sentenced appellant to the same aggregate prison term originally imposed 16 years but reached this result by a different route than he had originally taken. Rather than imposing the middle term of 12 years for the continuous sexual abuse count, which he again selected as the principal term, he imposed the upper term of 16 years. He imposed the middle term of 6 years for the remaining lewd conduct subordinate term, but ordered it to run concurrently, rather than consecutively as it had in the original sentence.
In explaining his decision to impose the upper term on the principal term, the judge cited three aggravating factors. First, he noted that the term imposed for the subordinate count could have been consecutive (as, indeed, it had been on the original sentence), but that he was going to impose it concurrently. (See Cal. Rules of Court, rule 4.421(a)(7).)[4] Second, he stated that appellant's crimes had been "obviously planned and sophisticated" in that they involved "taking sexual advantage of young children with movies and buying them toys and other things . . . to insure that he remained in the child's good graces, . . . [and] to keep them from telling what is going on." (See rule 4.421(a)(8).) Finally, he noted that appellant "took advantage of a position of trust that he developed with these young children, taking them on rides on [appellant's big rig] truck, et cetera." (See rule 4.421(a)(ll).)
Following the entry of judgment on remand, appellant filed this timely appeal.
III.
DISCUSSION
A. Imposition of Same Aggregate Term on Remand
The crux of appellant's challenge to the sentence imposed on remand is that he received no reduction in his aggregate prison term, despite our reversal of one of the three counts on which he was originally convicted. He maintains it is unjust that, even though he now stands convicted of having molested only two children, rather than the original three, he still faces the same amount of time in prison as when he was originally convicted.
Appellant contends that, given the trial judge's original decision to impose the middle term for the principal term, the judge could not, or should not, have modified the sentence on remand to impose the upper term for that count, so as to arrive at the same aggregate prison term. Appellant advances several alternative legal arguments in support of his position.
We have found no published California opinion addressing whether a defendant can receive the same aggregate prison term upon resentencing for a multi-victim felony conviction where the only count relating to one of the victims was reversed on appeal.[5] As discussed below, however, *632 we conclude that, under principles already elucidated in the case law, the trial judge's original sentencing choices did not constrain him or her from imposing any sentence permitted under the applicable statutes and rules on remand, subject only to the limitation that the aggregate prison term could not be increased. (See People v. Craig, supra, 66 Cal.App.4th at pp. 1447-1448, 78 Cal.Rptr.2d 659.)
1. Lack of Jurisdiction to Modify Sentence
First, citing People v. Karaman (1992) 4 Cal.4th 335, 14 Cal.Rptr.2d 801, 842 P.2d 100, appellant contends that the trial court lacked jurisdiction to resentence him to the upper term for the continuous sexual abuse count, after having sentenced him to the middle term for that offense prior to the appeal and remand. He argues that "the court cannot modify a sentence, either by increasing it or decreasing it, once the defendant has begun to serve it." In particular, he argues that even where the judgment is reversed as to one count, the trial court on remand does not regain jurisdiction to modify the sentence imposed for counts that were affirmed on appeal. Essentially, appellant's contention is that under People v. Karaman, the only alternative left to the trial court upon remand here was to strike that portion of appellant's sentence originally imposed for the count that we reversed in Burbine I.
People v. Karaman, however, presented the question whether a trial judge retains jurisdiction to modify a defendant's sentence during a brief time period that intervenes, due to a stay of execution, between the entry of the sentence in the minutes and the actual commencement of the defendant's prison term. Karaman held that sentencing jurisdiction is retained by the trial court during that period, because the "execution" of the sentence does not occur until the defendant is remanded into custody to begin serving his term. (Karaman, supra, at pp. 344-345, 14 Cal.Rptr.2d 801, 842 P.2d 100.)
Therefore, the issue considered and decided by the court in Karaman is not relevant to this case, and its holding does not support appellant's argument that the trial court lacked jurisdiction to modify his sentence. It is true that the trial court lost jurisdiction to modify appellant's original sentence when appellant began serving it, but that too is irrelevant, because the trial court regained jurisdiction over appellant's sentence when we remanded the matter for resentencing. (See, e.g., People v. Hill (1986) 185 Cal.App.3d 831, 834, 230 Cal.Rptr. 109; People v. Savala (1983) 147 Cal.App.3d 63, 70, 195 Cal.Rptr. 193, disapproved on other grounds in People v. Foley (1985) 170 Cal.App.3d 1039, 1046, 216 Cal.Rptr. 865.)
Appellant relies on Karaman for the proposition that a remand for resentencing vests the trial court with jurisdiction only over that portion of the original sentence pertaining to the count that was reversed, and not over his sentence for the affirmed counts. This assumes that a felony sentence for a multiple-count conviction consists of multiple independent components, rather than being an integrated whole a view that has been repeatedly rejected by other courts that have considered the issue. In People v. Begnaud (1991) 235 Cal.App.3d 1548, 1 Cal.Rptr.2d 507, for example, the court addressed a jurisdictional argument similar to the one appellant makes in this case, and rejected it. The court reasoned that the "interlocking *633 nature" of felony sentencing under section 1170.1, subdivision (a), which fixes consecutive subordinate terms at one-third the middle term, "compels [the] conclusion" that the statute "creates an exception to the general rule that jurisdiction ceases when execution of the sentence begins." (Id. at p. 1554, 1 Cal.Rptr.2d 507, citing People v. Bustamante (1981) 30 Cal.3d 88, 104, fn. 12, 177 Cal.Rptr. 576, 634 P.2d 927; People v. Bozeman (1984) 152 Cal. App.3d 504, 507, 199 Cal.Rptr. 343.)[6]
Other cases have reached much the same conclusion regarding the inherently integrated nature of a felony sentence under the current statutory scheme. For example, in People v. Hill, supra, the court opined that "When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. [Citations.] This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components." (People v. Hill, supra, 185 Cal.App.3d at p. 834, 230 Cal.Rptr. 109, citing, inter alia, People v. Savala, supra, 147 Cal.App.3d at pp. 68-69, 195 Cal.Rptr. 193; see also People v. Castaneda (1999) 75 Cal.App.4th 611, 613-614, 89 Cal.Rptr.2d 367; People v. Craig, supra, 66 Cal.App.4th at pp. 1450-1452, 78 Cal.Rptr.2d 659; People v. Calderon, supra, 20 Cal.App.4th 82, 26 Cal.Rptr.2d 31; People v. Rojas (1988) 206 Cal.App.3d 795, 802, 253 Cal.Rptr. 786.)
Yet appellant contends that cases like Calderon, which involve multiple counts involving crimes against a single victim, are inapposite to this case where our reversal reduced not only the number of crimes, but also the number of victims from three to two. Appellant argues these circumstances necessarily imply a lesser degree of culpability than that perceived at his original sentencing hearing, thereby requiring a reduction of his aggregate sentence.
We disagree that the facts of this case constrained the trial court upon resentencing to make a mandatory reduction in the original aggregate sentence. We reject appellant's claim primarily because we endorse the notion that trial courts are, and should be, afforded discretion by rule and statute to reconsider an entire sentencing structure in multi-count cases where a portion of the original verdict and resulting sentence has been vacated by a higher court. Moreover, to suggest otherwise would potentially encourage trial courts to take into account the likelihood of certain counts surviving appeal a sentencing algorithm which might unnecessarily lead to longer original sentences.
As already noted, case law holds that, based on double jeopardy and due process, the aggregate prison term imposed for all of the surviving counts cannot be increased on remand after a partial reversal, a circumstance appellant does not contend occurred here. (See People v. Craig, supra, 66 Cal.App.4th at pp. 1447-1448, 78 Cal.Rptr.2d 659.) We do not view these cases as imposing a limit on the trial court's jurisdiction over resentencing, however. Rather, they impose a limitation on how the court's sentencing discretion may be exercised.
*634 In accord with this line of cases, we hold that upon remand for resentencing after the reversal of one or more subordinate counts of a felony conviction, the trial court has jurisdiction to modify every aspect of the defendant's sentence on the counts that were affirmed, including the term imposed as the principal term.
2. Equitable Principles of Res Judicata
Appellant next argues that, even if the court regained jurisdiction to resentence him on the affirmed counts, under the specific circumstances of this case, the trial court's modification of its prior sentencing choices violated equitable principles of res judicata that must be applied here in order to achieve fundamental fairness and comply with due process. He cites People v. Mitchell (2000) 81 Cal. App.4th 132, 96 Cal.Rptr.2d 401 (Mitchell) for the proposition that res judicata applied to the trial court's earlier decision to impose the midterm for the continuous sexual abuse count, thereby precluding it from imposing the aggravated term for that count at resentencing.[7]
In Mitchell, the defendant was convicted of assault with a deadly weapon, for which he was originally sentenced to a nine-year state prison term, including a five-year enhancement based upon a true finding that the defendant had suffered a prior conviction for a serious felony. (§ 667, subds.(a), (d), & (e); Mitchell, supra, 81 Cal.App.4th at p. 136, 96 Cal.Rptr.2d 401.) On appeal, the true finding was reversed based on ineffective assistance of counsel, the appellate court concluding the evidence was insufficient to sustain the prior serious felony allegation. Upon remand, a new evidentiary hearing was held on the serious felony enhancement, and the trial court again found the prior serious felony allegation true. (Id. at p. 138, 96 Cal. Rptr.2d 401.)
Upon the second appeal, the court in Mitchell acknowledged that principles of double jeopardy do not bar retrial of prior conviction allegations in a noncapital case. (Mitchell, supra, 81 Cal.App.4th at pp. 139-142, 96 Cal.Rptr.2d 401.) It ruled, however, that a finding that the evidence does not support an allegation of prior serious felony is akin to an acquittal of that allegation, concluding that principles of res judicata and law of the case bar the prosecution from a second attempt to prove the truth of the allegation. (Id. at pp. 155-156, 96 Cal.Rptr.2d 401.) It reasoned that "where the government has had a full and fair opportunity to present its case unhampered by evidentiary error or other impediment, fundamental fairness requires application of equitable principles of res judicata (direct estoppel) and law of the case to preclude the relitigation of [the defendant's] prior serious felony conviction allegations for purposes of both a five-year enhancement and a strike under the three strikes law. [Citations.]" (Id. at p. 136, 96 Cal.Rptr.2d 401.)
First, we find the Mitchell holding inapplicable to the present case as the reasoning of the court has no application to a trial court's discretionary sentencing *635 choices.[8] In selecting the middle term as the principal term at the initial sentencing, the trial court here did not, as appellant suggests, "acquit" him of the upper term. It did no more than find that the totality of the circumstances justified the selection of that particular term. Appellant cites no California case holding that it is fundamentally unfair to revisit the term selection issue on remand, after the original circumstances have been altered by the reversal of one count of the original conviction (provided, of course, that the aggregate prison term is not increased). We decline appellant's invitation to be the first California court to so hold.[9]
Furthermore, we note that the reasoning in People v. Mitchell was persuasively discredited in People v. Scott (2000) 85 Cal.App.4th 905, 102 Cal.Rptr.2d 622, where the court pointed out that (1) principles of res judicata do not apply until there has been a final determination on the merits, which does not occur simply because a finding was made in an ongoing proceeding; (2) in People v. Morton (1953) 41 Cal.2d 536, 261 P.2d 523, the California Supreme Court made it clear that retrial of the question of whether the defendant had suffered a prior conviction for a particular offense was entirely proper; and (3) the conclusion that sufficient evidence does not support an allegation of prior conviction of a serious felony is not at all analogous to an acquittal, because the jury does not consider whether the defendant did in fact commit a serious felony, but decides only the defendant's continuing status. The court, citing People v. Monge (1997) 16 Cal.4th 826, 839, 66 Cal.Rptr.2d 853, 941 P.2d 1121, pointed out that the prosecution is entitled to reallege and retry that status in as many cases as it is relevant. (People v. Scott, supra, 85 Cal. App.4th at pp. 916-924, 102 Cal.Rptr.2d 622.) In addition, the doctrine of law of the case does not prevent retrial of an issue, although it does require that the same conclusion be reached if that matter is retried on the same evidence. (Id. at p. 924, 102 Cal.Rptr.2d 622.) In what might be described as judicial piling-on, numerous published, as well as non-published, opinions have since joined the chorus of criticism of Mitchell. (Cherry v. Superior Court (2001) 86 Cal.App.4th 1296, 1303-1305, 104 Cal.Rptr.2d 131; People v. Franz (2001) 88 Cal.App.4th 1426, 1455-1456, 106 Cal.Rptr.2d 773; People v. Sotello (2002) 94 Cal.App.4th 1349, 1354-1357, 115 Cal.Rptr.2d 118.)[10]
3. Abuse of Discretion and Use of Improper Aggravating Factors
In addition to his lack of jurisdiction and res judicata arguments, appellant *636 contends that in imposing the upper term for the principal term at appellant's resentencing, the trial court relied on improper aggravating factors and abused its discretion. In support of this argument, appellant relies in part on the fact that at the original sentencing hearing, when it imposed the middle term, the court expressly considered the same aggravating factors and rejected them as "contained within the charge" of continuous sexual abuse of a child. (See rule 4.420(d) ["A fact that is an element of the crime shall not be used to impose the upper term."]; cf. People v. Quinones (1988) 202 Cal.App.3d 1154, 1159, 249 Cal.Rptr. 435 [improper to use youth of victim as aggravating factor in child molestation case, because victim's age is element of offense].)
Appellant argues that it was an abuse of discretion for the trial court to change its mind, on resentencing, regarding whether the prosecution's proffered factors in aggravation were contained within the charge. We disagree.
It is established that a circumstance that is an element of the substantive offense cannot be used as a factor in aggravation. (People v. Wilks (1978) 21 Cal.3d 460, 470, 146 Cal.Rptr. 364, 578 P.2d 1369; People v. Clark (1992) 12 Cal. App.4th 663, 666, 15 Cal.Rptr.2d 709.) A sentencing factor is only an element of the offense, however, if the crime as defined by statute cannot be accomplished without performance of the acts which constitute such factor. (People v. Clark, supra, at p. 666, 15 Cal.Rptr.2d 709.) In this case, we are persuaded that the aggravating factors cited by the trial court on resentencing were not in fact elements of the crimes of which appellant was convicted, and therefore were properly considered in aggravation.
Appellant cites People v. Fernandez (1990) 226 Cal.App.3d 669, 680, 276 Cal. Rptr. 631, for the proposition that it was improper to rely on the "planning and sophistication" factor (rule 4.421(a)(8)) because it "would . . . probably apply in every resident child molester case." The court in Fernandez went on to say, however, that "further elaboration would be particularly helpful in understanding how and why the facts showing premeditation in this case made the offenses worse than they ordinarily would have been. [Citation.]" Id. at p. 680, 276 Cal.Rptr. 631.)
In the present case, the trial court provided such an elaboration. In support of its finding on resentencing that appellant's crimes were "planned and sophisticated," the court stated that appellant provided his victims with movies and toys "to insure that he remained in [their] good graces" and "to keep them from telling what [was] going on."[11] Moreover, appellant, unlike the defendant in Fernandez, was a neighbor of his victims rather than a household member, and therefore not strictly speaking a "resident" child molester. Under the circumstances, appellant's having lulled his victims into acquiescence and silence by cultivating a "friendly neighbor" relationship *637 with them was distinct from the elements of the crime, and made appellant's offenses worse than they otherwise would have been by manipulating the children's natural feelings of gratitude and affection. Thus, we do not find any error in the trial court's reliance on planning and sophistication as an aggravating factor.
The trial court also found that appellant "took advantage of a position of trust that he developed with these young children" (rule 4.421(a)(11)) by "taking them on rides on [his big rig] truck," which the evidence at trial showed was equipped with a sleeping area in which appellant molested one of his victims. Appellant contends that occupying a position of trust with respect to the victim is an element of continuous child abuse, and thus that this factor was not properly aggravating. Appellant's contention has been rejected by another division of this court, in an opinion with which we concur. (People v. Clark, supra, 12 Cal.App.4th at p. 666, 15 Cal. Rptr.2d 709.) Section 288.5 requires only that the perpetrator "either reside[ ] in the same home with . . . or ha[ve] recurring access to the child." People v. Clark held that because "continuous sexual abuse can be committed by anyone residing in the same home with the children, whether or not they have special status with the victim," abuse of trust can be used as an aggravating factor even against a member of a child's household. (People v. Clark, supra, at p. 666, 15 Cal.Rptr.2d 709.) The same clearly holds true for non-household members. A neighbor, or a housecleaner, gardener, or dog walker employed by a child's parents, for example, might enjoy "recurring access" to a child without occupying a position of trust with respect to him or her.
In this case, appellant notes that the mother of the continuous abuse victim actively encouraged what she perceived as a quasi-paternal relationship between appellant and her child. This fact bolsters rather than undercuts the trial court's finding in aggravation regarding appellant's position of trust. Appellant's prolonged deception of the victim's mother concerning the true nature of his interest in the victim not only is not an element of the crime, but also did exactly what appellant contends an aggravating factor should do, i.e., it made this particular crime distinctively worse than others of its nature.
In short, the trial court did not err in considering the cited aspects of appellant's conduct as aggravating factors. If the trial court was wrong in rejecting them the first time, as we believe it was, it cannot have been an abuse of discretion for the court to reconsider, and correct its own error, after it regained jurisdiction by virtue of our remand.
But even if the reconsideration was error, we would still find no reason to disturb the sentence that was imposed on remand. Only a single aggravating factor is required to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728, 55 Cal.Rptr.2d 26, 919 P.2d 640; People v. Castellano (1983) 140 Cal.App.3d 608, 614-615, 189 Cal.Rptr. 692.) In this case, the court's decision to impose the upper term was supported by an aggravating factor that is beyond reproach and had not been present the first time, namely, the imposition of a concurrent term for the affirmed subordinate count, when the sentence for that count could have been imposed consecutively. (Rule 4.421(a)(7).) Thus, even if the court had erred in considering the other aggravating factors, the decision to impose the upper term would still be valid.
Appellant argues that the "concurrent term" factor did not really exist. He notes that the case law already cited (e.g., People v. Craig, supra, 66 Cal.App.4th at pp. *638 1447-1448, 78 Cal.Rptr.2d 659) barred the trial court from sentencing appellant to a longer term on resentencing than the 16 years he originally received. He argues that the court therefore could not have both imposed the upper term of 16 years, and made the subordinate term run consecutively. This is true, but it is also beyond cavil that the 16-year limit would not have prevented the trial court, on remand, from imposing the 12-year middle term plus a 2-year consecutive subordinate term. Having chosen, instead, to make the subordinate term run concurrently, the court was free to use that choice as an aggravating factor allowing imposition of the 16-year upper term for the base term.
Finally, appellant urges us to reverse on the authority of People v. Swanson (1983) 140 Cal.App.3d 571, 574, 189 Cal.Rptr. 547, which held that a sentencing judge is required to base a choice of term on the statutory and rule criteria, on an analysis of legitimate aggravating and mitigating factors, but not on a subjective feeling about whether the resulting sentence seems too long, too short or just right. More recent cases, however, have reasoned otherwise, holding that a judge's subjective belief regarding the length of sentence to be imposed is not improper so long as it is channeled by the guided discretion outlined in the myriad of statutory sentencing criteria. (People v. Calderon, supra, 20 Cal.App.4th at p. 88, 26 Cal. Rptr.2d 31; People v. Stevens (1988) 205 Cal.App.3d 1452, 1457, 253 Cal.Rptr. 173; People v. Savala, supra, 147 Cal.App.3d at p. 69, 195 Cal.Rptr. 193.) The more recent cases are the more persuasive, but even if they were not, there is nothing in the record in this case to indicate that, on resentencing, the trial judge was reasoning backward from a subjectively selected sentence. On the contrary, the transcript of the sentencing hearing affirmatively demonstrates that the trial judge "re-reviewed . . . the probation officer's report [and] the facts and circumstances of the case," and then exercised his sentencing discretion based on an analysis of legitimate factors.
B. Failure to Consider Letters in Mitigation
As a separate basis for reversal of his sentence, appellant contends that the trial court erred in failing to consider, on resentencing, the letters in mitigation that he submitted belatedly in connection with his original sentencing. Alternatively, he contends that if this argument was waived by his counsel's failure to call the letters to the trial court's attention, his counsel's assistance was ineffective.
As already noted, at the outset of the resentencing hearing, the trial judge listed the materials he had reviewed, which did not include appellant's letters in mitigation. He then asked whether there was anything else he should consider, and appellant's counsel responded "No." It is hard to imagine any clearer record for a waiver.
But there is insufficient evidence that the conduct of counsel in not offering the letters was conduct which fell below the standard of care. In our prior opinion, we held that appellant's original trial counsel's failure to submit the letters sufficiently in advance of sentencing was not prejudicial, because "a review of the letters . . . leads us to conclude that there is no reasonable probability that consideration of the letters would have [led] to a lesser sentence." We reached that conclusion because the letters were all premised on expressions of appellant's innocence, and "[o]pinions as to the innocence of a defendant after a jury has already reached a guilty verdict are not a factor in mitigation." (Cf. People v. Charron (1987) 193 *639 Cal.App.3d 981, 994, 238 Cal.Rptr. 660 [trial court did not err in rejecting letters testifying to defendant's good character as mitigating factor, when qualities spoken of in letters were contradicted by defendant's conduct in committing crimes of which he was convicted].)
People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1248, 118 Cal.Rptr.2d 890, cited by appellant, is not to the contrary. In that case, the court held that the trial court had erred in concluding it had no discretion to grant probation to a man convicted of molesting his minor daughters. The court then determined that this error made it necessary to remand for resentencing, because granting probation would not necessarily constitute an abuse of discretion given the defendant's remorse, amenability to treatment, good work history, and lack of any criminal record. The court also mentioned that the defendant had submitted "numerous letters of support from family and friends" (ibid.), but unlike in this case, there is no indication that those letters were premised on the defendant's innocence. Except for good work history, the other mitigating factors present in Bruce G. are not present in this case.
Thus, defense counsel's failure to object or argue the text of the letters in mitigation is understandable because the letters themselves were not properly mitigating, and we had said as much in our earlier opinion in Burbine I. Moreover, appellant has failed to point to any facts upon resentencing to alter our earlier conclusion that "there is no reasonable probability that the court would have imposed a lesser sentence" if the judge had reviewed the letters. It follows that trial counsel's failure to call them to the judge's attention prior to the resentencing did not result in any prejudice to appellant.[12] (See People v. Staten (2000) 24 Cal.4th 434, 451, 101 Cal.Rptr.2d 213, 11 P.3d 968 [alleged ineffective assistance of counsel not grounds for reversal unless appellant shows reasonable probability that result would have been different but for counsel's errors].) Therefore, even if this waiver constituted ineffective assistance, this is not a ground for reversal, because appellant was not prejudiced. Accordingly, we find no basis to reverse appellant's sentence on this ground.
IV.
DISPOSITION
The judgment is affirmed.
We concur: KLINE, P.J., and HAERLE, J.
NOTES
[1] All further statutory references are to the Penal Code unless otherwise noted.
[2] The facts underlying appellant's convictions were set forth in our opinion on appellant's prior appeal and related habeas corpus petition. (People v. Burbine (April 25, 2001, A087714 & A092468) [nonpub. opn.] [Burbine I].) They are summarized here only insofar as they are relevant to the issues raised on this appeal.
[3] At appellant's request, we have taken judicial notice of the record and briefs in his prior appeal and related habeas corpus petition. (See Evid.Code, §§ 452, subd. (d)(1); 459, subd. (a).)
[4] All further references to rules are to the California Rules of Court.
[5] The closest case appears to be People v. Calderon (1993) 20 Cal.App.4th 82, 26 Cal. Rptr.2d 31, which upheld the reimposition of the same term on resentencing following a partial reversal and remand. In Calderon, however, the count that had been reversed on appeal was a lesser included offense of an affirmed greater offense, not a separate one involving a different victim. (See id. at pp. 84-85, 26 Cal.Rptr.2d 31.) Nonetheless, we not only agree with the result in Calderon, but also, for the reasons expressed below, reach the same result in the case before us.
[6] In Begnaud, the count that was reversed on the initial appeal was the one responsible for the principal term of the defendant's sentence, rather than, as here, a count responsible for a subordinate term. We do not view this distinction as crucial to the jurisdictional question. In our view, the principle that a felony sentence under the Determinate Sentencing Law is an integrated whole applies regardless of which element of that whole is invalidated by an appellate reversal.
[7] Respondent contends that this issue was waived by appellant's failure to raise it in the trial court. Appellant counters that the issue is one of due process, and therefore can be raised for the first time on appeal, and that, if the issue was waived, his trial counsel was therefore ineffective. We need not reach appellant's contentions, because our reading of the record indicates that appellant's trial counsel adequately preserved this question. At the resentencing shearing, counsel argued that the court had already considered and rejected the aggravating factors in the prosecution's brief, and therefore its original finding that there were no aggravating circumstances should stand. The substance of the current argument was thus presented to the trial court.
[8] Indeed, as respondent points out, Mitchell itself appears to have contemplated the possibility that, subject to the appellate court's directions regarding striking its true findings on the defendant's priors, the trial court could recalculate the entire sentence as it saw fit. (People v. Mitchell, supra, 81 Cal.App.4th at p. 157 & fn. 10, 96 Cal.Rptr.2d 401.)
[9] We are not persuaded otherwise by the federal authorities cited by appellant. None of them holds that res judicata or any other legal principle precludes a trial court, on remand for resentencing, from reconsidering its prior discretionary sentencing decisions. Moreover, appellant does not explain how decisions under federal sentencing statutes and rules are relevant to sentencing under the California determinate sentencing law.
[10] The issue whether res judicata or law of the case bars retrial of prior conviction allegations after a reversal on appeal for insufficient evidence is presently before the California Supreme Court. (People v. Barragan, review granted May 15, 2002, S105734.) Even if the Supreme Court determined in Barragan that retrial of prior conviction allegations is barred, however, that would not persuade us to accept appellant's argument in this case. As already explained, we do not consider the reasoning in Mitchell applicable to a trial court's discretionary sentencing choices.
[11] Appellant contends that there was no evidence that he bought toys for the victims. This argument was not raised in the trial court, and is unsupported by any reference to the record. On the other hand, respondent has not provided us with any citations to the record indicating that toy buying did occur, and our prior opinion does not mention it. In any event, even if appellant did not literally buy toys for the victims, the record is clear that appellant took the victim of his continuous abuse to the movies and on trips, encouraged him to sleep over at his house and in his truck, and allowed him to camp out in his backyard. He also gave candy to the other victim. Thus, the record does support the trial court's underlying point that appellant undertook deliberate efforts to insure that he remained in his victims' good graces and to deter them from reporting the abuse.
[12] For the same reason, we see no reason to fault the trial judge for failing to review them of his own accord. Our opinion in Burbine I clearly implied that this was unnecessary, because we held that the letters had no mitigating value. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3349731/ | The plaintiffs consist of the surviving wife (viz., Harriet C. Fleming) and children, of the late Thomas P. Fleming, who, when he deceased intestate, owned two large tracts of land located on either side of the State highway known as Route No. 6, in Southbury in this State, both of which, together with the buildings and structures thereupon, are used as a dairy farm. The marriage of the deceased Thomas P. and the surviving Harriet C. Fleming occurred subsequent to April 20, 1877. In consequence, immediately upon the death of Thomas P., the plaintiffs became tenants in *Page 43
common of the land referred to — Harriet C. (by virtue of Gen. Stat. [1930] § 5156), being vested with a one-third, and each of the other plaintiffs, with a two-ninths, undivided interest therein. One of them (viz., John L. Fleming) was named administrator on his father's estate, for which trust he duly qualified and at all times mentioned herein has been, and now is, acting in that capacity. On April 28, 1939, defendant, State Highway Commissioner (hereinafter referred to as the "Commissioner") sought to re-establish the "boundary lines or limits" of the highway mentioned in accordance with the authority conferred on him by the provisions of section 530c of the 1935 Cumulative Supplement to the General Statutes. Accordingly, on the date mentioned, having carried out the formalities directed by the statute (§ 530c) in other respects, he gave notice of his doings to John L. Fleming as administrator aforesaid, containing a description of the boundaries and limits of the highway as he relocated them. He neglected to do likewise, however, with respect to any others of the plaintiffs.
The statute requires that such "description" shall be furnished "to each known adjoining proprietor" at his last known address. Since there is no evidence to that effect, and in view of the silence of counsel concerning the subject, it must be assumed that the estate is not insolvent, in which latter event, alone, notice to the administrator might, under some circumstances, satisfy the statutory requirement. Goodwin vs. Milton,25 N.H. 458, 473, 474. Of course, immediately upon the death of Thomas P. Fleming, the title to the real estate in question descended to plaintiffs in the several rights, titles and interests mentioned ante, subject only to possible appropriation by the administrator for payment of any ante mortem
debts and expenses of administration (Bowen vs. Morgillo,127 Conn. 161, 168; Perkins vs. August, 109 id. 452, 456;Candee vs. Candee, 87 id. 85, 87) or of being divested by proper order of the court of probate requiring the property to be sold to satisfy some condition encountered in the course of administration. Candee vs. Candee, supra, p. 87. This, notwithstanding the content of section 4956 of the General Statutes, Revision of 1930, which provides, among other things, that: "The executors and administrators of deceased persons shall, during the settlement of the estates of such persons, have the possession, care and control of their real estate, and all the products and income of such real estate during such time *Page 44
shall vest in them as personal property, unless such real estate has been specifically devised...." While earlier cases intimate otherwise (e.g., Nichols vs. Dayton, 34 Conn. 65, 66,67) this provision came later to be construed to only confer upon an executor or administrator the custody or control of real estate "for the purpose of enabling him to defend the land from acts of trespass, to enforce payment of rent, and to hold the income until it shall be known whether it is to go to heirs or creditors." Remington vs. American BibleSociety, 44 Conn. 512, 516, 517. It is the heirs at law or specific devisees of land who may maintain ejectment, while the estate of which it is a part is in course of settlement.Stevens vs. Smoker, 84 Conn. 569, 574; Foote vs. Brown,
81 id. 218, 225. The title resides in them during administration unless and until the realty is sold by proper order of the court of probate. Perkins vs. August, supra, pp. 456, 457. It is not in suspension during the settlement of the estate because of the possible circumstance that it might be required for the payment of the intestate's debts. Foote vs. Brown,supra, p. 225. The statute (§ 530c), is concerned with notice to the proprietors of real estate adjoining highways whose limits the Commissioner re-establishes by authority of its provisions — not those who may be in the temporary custody or control of it. The word "proprietors" is a synonym of "owners." The two are used interchangeably in the statute in question as appears from its text. "Adjoining proprietor[s]" as employed therein means adjoining owners, which in turn connotes as between them and an administrator those who have the legal title. It is the plaintiffs who as the surviving wife and heirs are the "adjoining proprietor[s]", within the meaning of the statute, to whom the required description of the relocated bounds and limits of the highway should have been mailed. Highway Commissioners vs. Chambers, 265 Ill. 113,116, 106 N.E. 492, 493; Boynton vs. Petersborough Shirley R.R. Co., 4 Cush. (Mass.) 467, 469; Kane vs. KansasCity, Ft. S. M. Ry. Co. 112 Mo. 34, 38, 20 S.W. 532, 533. The administrator had no such interest in the premises as entitled him to be made a party to the proceeding. HighwayCommissioners vs. Chambers, supra. Palpably, notice to him alone was no notice to the plaintiffs, and if such a fact be material, there is no evidence that any of the plaintiffs came into actual knowledge of the proceeding at any time material to the instant inquiry, and did not appeal as they otherwise *Page 45
might have done (§ 530c, supra) and so cannot be said to have waived any defect in the proceedings. The failure to comply with the statutory direction on the Commissioner's part made a nullity of his attempt to effect such re-establishment and none resulted from the proceedings taken as against the plaintiffs, wife and next of kin. Hartford Trust Co. vs. West Hartford,84 Conn. 646, 651, 652. And see, West Hartford vs. Coleman,
88 id. 78, 80.
The attempt to relocate and re-establish the limits of the highway where plaintiffs' land adjoins it, was, it appears, a step preliminary to widening and otherwise improving it. This last referred to plan became manifest on September 19, 1941. On that date, the Commissioner filed with the Clerk of the Superior Court in New Haven County, a general description of portions of plaintiffs' property proposed to be devoted to such purposes, together with an assessment in which it was stated that the damages exceeded the benefits in the sum of $2,731. This was as required by section 1528 of the General Statutes, Revision of 1930, which provides a procedure for the taking of land by the Commissioner for trunk line highway purposes. The land so taken for the widening consists of a strip along the west side of the highway about 688 feet in length (designated "Parcel No. 2"), which for the most of its distance, is approximately 10 feet wide. This comes to a point at its northerly end; and on the east side two parcels — not contiguous to each other, one about 216 feet in length and approximately 48 feet deep, and the other about 411 feet long and about 48 feet deep on its northerly, and about 105 feet deep on its southerly end. An appeal for a reassessment of benefits and damages is provided for in section 1531 of the General Statutes. Revision of 1930, and plaintiffs on or about October 6, 1941, pursued the course so made available to it. The description of the land "taken" as filed with the Clerk of the Superior Court on September 19, 1941, for the proposed widening and improvement predicated on the assumption that the Commissioner had effected a relocation of the highway bounds and limits in the invalid proceeding, ante, commenced by him on April 28, 1939.
Matters stood at this pass when on September 25, 1941, plaintiffs instituted an action to which the present motion is incidental, claiming damages of $1,000 and relief by injunction against the Commissioner because of his doings as described. *Page 46
In this, the validity of the purported re-establishment of the highway limits made April 28, 1939, is challenged, not only for the reasons noted supra, but, also, because as plaintiffs claim, the lines affected to be fixed in it are erroneous in that there is included within them land which has never formed any part of the highway. Of consequence is the fact that on the west side of the road a barn which houses some 20 head of cattle and three work horses used in connection with the operation of the dairy farm extends within the area for an average distance of about eight feet. Since such areas lie outside the travelled portion of the road but are not included within any valid relocation of the highway nor form part of the land "taken" for the widening, etc., of the highway by the filing of the description and notice on September 19, 1941,ante, plaintiffs maintain that they are being deprived of it without compensation in violation of section 11 of article I
of the Constitution of the State of Connecticut, and without due process of law in contravention of the Fifth Amendment to the Constitution of the United States; in addition, as respects the additional land taken for the widening and other improvement of the highway, it is contended that its condemnation is unreasonable, in bad faith and in abuse of power for reasons hereinafter noticed. The instant motion filed October 20, 1941, asks that the Commissioner be restrained from entering upon either the land included within the purportedly re-established lines of the highway in the proceeding under section 530c or that taken for the widening, etc., under section 1528, both supra. Upon the original hearing it developed that there could be no assurance concerning certain phases of the issues without the presence of the Commissioner — who was absent — or someone from his office who could furnish information relative to matters as to which data was required Thereupon, the hearing was adjourned until such date as the parties might agree to resume, upon assurance from the assistant attorney general that the commissioner would not interfere with the status quo in the meantime.
During the interim, viz., on November 10, 1941, the plaintiffs filed an amendment to their motion for a temporary injunction in which it was alleged that on November 4, 1941, the Commissioner by filing a notice with accompanying descriptions with the Clerk of the Superior Court commenced another proceeding involving the land included within the invalidly relocated highway lines. This, the evidence shows, *Page 47
is of equivocal character and hence, of doubtful purpose, in that while it recites that such land is thereby "taken" and assesses equal benefits and damages in the sum of $1 each, nevertheless purports to acquire the same "pursuant to the provisions of sections 530c and 1528 of the General Statutes."
From this action on the Commissioner's part, also, the plaintiffs appealed. Since the notice referred to obviously transpired subsequent to the commencement of the instant action, it is not alleged in the complaint and no amendment has been made to the latter pleading to make it a part thereof up to this time. It follows, therefore, that its presence in the motion for a temporary injunction based upon the cause described in the complaint furnishes the court with no sanction to give effect to the content of such amendment as a justifying basis upon which to predicate the issuance of an interlocutory restraining order. It may, however, be considered in determining whether the court should exercise its discretion whether a temporary injunction should issue (Ferguson vs. Borough ofStamford, 60 Conn. 432, 448), provided it is found that some legal right or rights of the plaintiffs are in imminent danger of violation as a result of the matters set forth in the complaint. It will be taken into account from that standpoint, only, at this point.
The (1) re-establishment of lost or doubtful highway limits and (2) the taking of land for the widening, altering or improvement of highways are proceedings which differ from each other in conception, character and effect. In the first, no taking of land is involved; the purpose is merely to define the areas which have already become subject to public easement for highway purposes, the outlines of which have become obscure. The appeal from the Commissioner's relocation authorized by the statute (§ 530c) has but one purpose, viz., the judicial determination of the question whether such lines may be re-established and, if so, their location. In the second, an original subjection of land to the public easement is the definite objective and result. This constitutes a taking and necessarily premises on the fact that such property is not already under the burden of the same public use as it is being appropriated for. The first calls for no compensation; the second requires it. The purpose of the appeal afforded in the latter is the judicial determination of the question of compensation and that only. Andrews vs. Cox, 127 Conn. 455, 464; Munson *Page 48 vs. MacDonald, 113 id. 651, 660; Young vs. West Hartford,
111 id. 27, 30.
The distinction between the two proceedings is observed in the statutes which authorize them, viz., sections 530c and 1528, supra, no detailed comparison of which is necessary here. Suffice it to say that the impracticability of proceeding under both at the same time, as the Commissioner purports to do by virtue of the notice filed with the Clerk of the Superior Court on November 4, 1941, coincides with the innate differences between the two. Considerations of these characters forbid the joinder of both proceedings in one, or the pursuit of both coincidentally. Specific reference need be made to but one provision only which is contained in section 530c since it is under this that the Commissioner claims sanction for his attempt to combine the two and asserts the authority to effectuate them together. Thus, it is provided: "If said commissioner shall be unable to prove the location of any such boundaries or limits, he may purchase or condemn such right of way over land adjoining the traveled portion of the highway as shall, in his opinion, be necessary for highway purposes under the provisions of sections 1528, 1529, 1530 and 1531."
It is obvious, of course, that the Commissioner required no special power under section 530c (which as previously noted is concerned only with the relocation and re-establishment of lost and uncertain highway limits) to enable him to condemn land anywhere for highway purposes. That right was conferred upon him in the broadest of terms under section 1528 and existed in him quite regardless of whether he had previously attempted to clinch the right to use areas adjoining the travelled portion of a road prior to its exercise or not under section 530c. The right to condemn conferred in section 1528 exists quite independently of and without reference to any ability to relocate and re-establish lost or obscure highway limits under section 530c and is not limited by or dependent upon anything contained in the latter. The two statutes read together, even without the clause quoted from section 530c, supra, connote that where land is necessary to widen the travelled portion of a highway within the Commissioner's jurisdiction, if it is his opinion, that it or part of it forms a part of the existent road, he may attempt to establish that fact under the provisions of section 530c, but if he is unable to do *Page 49
so, then, he may take what is required in accordance with the provisions of section 1528, or if at the outset he feels that it would be impossible for him to prove that the areas he demands lie within lost or uncertain highway limits, though there be doubt about it, he may proceed directly to condemn them under section 1528. This is apparent from the provision upon which the Commissioner relies, which does not pretend to confer an original or additional authority upon him in aboundary relocation proceeding under section 530c, but specifically directs that any taking of territory unsuccessfully attempted to be shown to be within lost or uncertain highway bounds shall be pursued under the authority of section 1528. Under the provisions of the latter, land is taken when the Commissioner files in the office of the Clerk of the Superior Court the required assessment, immediately following which he may enter upon the property and convert it to highway use. Munson vs. MacDonald, 113 Conn. 651, 657. All that follows thereafter is concerned only with a reassessment of benefits conferred on or damages sustained by the affected property owner. Andrews vs. Cox, 127 Conn. 455, 464;Munson vs. MacDonald, supra, p. 660. Palpably, if as the Commissioner seems to claim, he may condemn land under the provision quoted supra and at the same time and in the same proceeding attempt to show that it is already subject to the very use for which he takes it, and for which, therefore, he does not need to appropriate it, the obvious answer is that no such confused intention can be attributed to the Legislature.
One other element is, alone, decisive. The ascertainment of benefits and damages consequent upon a taking under section 1528 must be made as of the date of such taking. Andrewsvs. Cox, supra, p. 458, and cases cited in the opinion in that case. But, under the provision on which the Commissioner relies, the condemnation must await another event, viz., the determination of whether the Commissioner has succeeded in a proceeding under section 530c in proving the "location of any such boundaries or limits", which means, of course, that the taking must await the unsuccessful termination of proceedings to relocate and re-establish the claimed lost and uncertain highway limits. Under the procedure which the Commissioner is attempting to pursue, he purports to take the land in question, but the ascertainment of the amount of benefits and damages arising from such taking is not to be *Page 50
made as of the date of the taking, nor unless and until it is demonstrated whether he had taken it or not — depending upon whether, proceeding under section 530c, he shows that it or a part of it is already within the highway limits and so will not have to be appropriated or paid for. Additional observations might be made to further demonstrate the untenability of the claim that the provision upon which the Commissioner depends authorizes simultaneous proceedings to relocate and re-establish lost highway bounds under section 530c and one to take the same land for highway purposes under section 1528, but the considerations noted supra seem sufficiently decisive.
The evident purpose of the 1931 amendment which is incorporated in section 530c was the correction of an obvious self contradiction in section 1507 of the General Statutes, Revision of 1930. Thus, as the pertinent provision read in the last named statute, it authorized the Commissioner in a proceeding to relocate and re-establish lost or uncertain highway limits to "condemn land under the provisions of sections 1529, 1530 and 1531", "for the purpose of establishing such lines." (Italics added.) But as previously noted: "A statutory proceeding for the survey and platting of an existing road does not operate to establish the road. Its purpose is merely to ascertain the courses and distances of one claimed already to be established." 25 Am. Jur. Highways § 44, p. 364. (Italics added.) The provision in section 1507 empowering the Commissioner to condemn land to re-establish once existent but presently lost or obscured highway limits was consequently self-contradictory. The obvious purpose of the 1931 amendment which now appears in section 530c recognizes the distinctive differences and purposes of the two proceedings and removes the confusion existent in section 1507 by providing that the resort to section 1528 to condemn land for highway uses where it is claimed that the land required for such use is already subjected to the same, is dependent upon failure toprove that such land had previously constituted part of the highway or in any event "to prove the location of any such boundaries or limits" as he claims. (Italics added.) Which is but another way of saying that there can be no taking under such circumstances to satisfy the highway requirements until the proceeding under section 530c is concluded, which in turn obviously implies that the order of proceeding may not be reversed by making the condemnation first and then *Page 51
awaiting the outcome of a proceeding under section 530c to determine whether any benefits and damages need be assessed and for what, and in any event ascertaining the amount of same as of the day of final judgment in the section 530c proceeding instead as of the date when the so-called taking is made. Proceedings for the exercise of the power of eminent domain are entirely statutory. The legislative conditions must be strictly observed and their directions strictly complied with, and this must appear on the face of the proceedings. Statevs. McCook, 109 Conn. 621, 629; Conners vs. New Haven,
101 id. 191; Crawford vs. Bridgeport, 92 id. 431, 435. The procedure adopted here, at least, in so far as it involves an attempted taking of land under the provisions of section 1528 presents not merely a failure to comply with the requirements of that statute, but in the attempt to combine such a proceeding with one under section 530c is without any statutory authority whatever. It, in consequence, represents an abuse of power by the Commissioner. Nothing in the proceeding commenced November 4, 1941, is potent to influence the discretion of a court or judge exercising equitable powers to refrain from granting injunctive relief, if the latter would be otherwise justified.
As respects the taking of the land lying outside of the purported re-established limits (viz., that of September 19, 1941) the plaintiffs attack the validity of this from two angles. First, it is contended that the statute authorizing the proceeding is unconstitutional in that a condemnation of private property for public use in accordance with its provisions would authorize a taking without due process of law and, second, if the statute does not contravene constitutional requirements, then the taking under its authority, is, in this instance, invalid. The first mentioned of these contentions is based on the circumstance that the statute (viz., § 1528, supra) makes no provision for an appeal in which a judicial review of the validity of the Commissioner's action in proceeding under its authority can be had (Munson vs. MacDonald, supra, p. 660), especially in view of the fact that no other statute provides such a review. In substance, the statute (§ 1528, supra) authorizes the Commissioner to "take any land he may find necessary for the layout, alteration, extension, widening, change of grade or improvement of any trunk line highway." It provides that "the owner .... shall be paid by the state for all damages and the state shall receive from the owner the amount or value of all *Page 52
benefits resulting from such taking ....", and requires that the assessment of such benefits and damages shall be made by the Commissioner and filed by him in the office of the Clerk of the Superior Court in the county where the affected land is situated, upon which the Clerk is directed to mail a copy to each owner of such land. The filing of such notice with the Clerk of the Superior Court constitutes the taking of such property. Munson vs. MacDonald, supra, p. 657. This accomplished, it is provided that "at any time after such assessment shall have been made by said highway commissioner, the physical construction of such layout, alteration .... may be made."
There is an appeal provided for in section 1531 of the General Statutes, Revision of 1930, but it is limited to and affords a review only of the assessment of benefits and damages made by the Commissioner. But "the pendency of any such application for reassessment shall not prevent or delay the lay out .... of any such highway." Gen. Stat. (1930) § 1531.Munson vs. MacDonald, supra, p. 657. It is true, as the plaintiffs contend and as already noted, that the statute affords no review of the validity of the condemnation. Munson vs. MacDonald,supra, p. 660. But, the fact that a statute conferring the power of eminent domain makes no provision for a judicial review of the validity of the exercise of such authority in any particular instance — even though there be no provision for such a review in any general statute — does not affect the constitutionality of such statute. Bridgeport Hydraulic Co. vs.Rempsen, 124 Conn. 437, 441: Munson vs. MacDonald, supra,
p. 656: State vs. McCook, 109 Conn. 621, 639; Water Commissionersvs. Manchester, 89 id. 671, 679; Water Commissionersvs. Johnson, 86 id. 151. The concerned property owner is remitted to an action in equity and is entitled to relief only if he can sustain the burden of proving that the condemnation is one tainted by unreasonableness, bad faith or the abuse of the power confided to the condemnor. See cases cited nextsupra. This last, though very limited remedy, however, resides in him, by the settled law of this State, and since it does, a denial of it to him deprives him of the benefit of due process of law as this is defined in Water Commissioners vs. Johnson,supra, pp. 151, 162, and in John J. McCarthy Co. vs. Alsop,122 Conn. 288, 297.
In the law of eminent domain, particularly where land is taken under the provisions of municipal charters, the courts *Page 53
often speak of two "takings" as involved in the condemnation of private property for public use, viz., (1) that which is theoretical only and occurs when the final act under the statutorily delineated procedure is performed by which specific property is designated to be condemned, as a result of which proceedings for the ascertainment of the amount of compensation are set in motion; and (2) actual physical occupation and use of the land condemned. While under neither the United States Constitution nor that of the State of Connecticut is it invariably necessary that actual payment precede the physical appropriation of property taken by eminent domain, nevertheless in the absence of such payment (or the setting aside of specific moneys to insure it) the condemnor is without right to enter upon or occupy the property condemned, unless the public faith is pledged to a certain and reasonably prompt payment thereof. Keller vs. Bridgeport, 101 Conn. 669,674, 675. This requirement is satisfied when land is condemned by the Commissioner under section 1528 by the provisions of section 1529 of the General Statutes, Revision of 1930, which give absolute assurance of payment. Stock vs.Cox, 125 Conn. 405, 417; State vs. McCook, 109 id. 621, 630. Unless a statute makes specific provision otherwise, there is, under such circumstances, no impediment to the immediate occupancy and physical appropriation of land following its mere designation as "taken", even without any statutory declaration to that effect.
In the instant statute (§ 1528) this is not only recognized, but emphasized, in the provision contained therein which reads: ".... and, at any time after such assessment shall have been made by such highway commissioner, the physical construction of such layout, alteration, extension, widening, change of grade or other improvement may be made." Munson vs. MacDonald,supra, p. 657. While as noted, nothing in this provision collides with constitutional requirements concerning the payment of compensation before physically entering upon property taken, because of the certainty of payment provided by the other statutes referred to supra, yet, in authorizing the Commissioner to occupy and appropriate the land taken at once upon filing the required notice of assessment in the office of the Clerk of the Superior Court, it leaves it within his power to prevent the affected landowner from effective resort to the only avenue of redress open to him if he claims the taking to be invalid — or, at least, so nullify the effectiveness of any *Page 54
equitable remedy that he might be entitled to the benefit of. For it is evident that since the taking occurs, for all purposes, at the instant of the filing of his assessment, the Commissioner by immediately moving his appliances onto the condemned property could arrive there even before the property owner had received the notice by mail for which the statute provides and have laid waste the land to an extent that would make application for injunctive relief fruitless. And if, notwithstanding, the owner whose rights are violated establish the validity of his claims, he could, nevertheless, recover no damages for the wrong committed by the Commissioner acting in his official capacity. Munson vs. MacDonald, supra, p. 650.
In considering whether a statute is unconstitutional the test is not what has been done under it, but what may be done under it. City of Richmond vs. Carneal, 129 Va. 388, 392,106 S.E. 403, 405, 14 A.L.R. 1341, 1343. By this criterion the statute deprives property owners whose land is condemned for highway purposes under its authority of the right to redress where the taking is invalid for any other reason or as the result of conduct on the part of the Commissioner which is unreasonable, in bad faith, or in abuse of power. Within the scope of the last enumerated designations are instances where property is condemned for purposes not wholly public (Connecticut College for Women vs. Calvert, 87 Conn. 421,425) or for uses which are not sanctioned by a reasonable public necessity. State vs. McCook, 109 Conn. 621, 629. From what has been said, it seems apparent that there is, at least, grave doubt of the constitutionality of the statute in so far as it authorizes the Commissioner to take immediate occupancy and use of property condemned for highway purposes after the filing of the required assessment of benefits and damages. However, no such declaration is required here for the reason that plaintiffs did succeed in bringing action before the Commissioner entered upon their land to commence the construction of the project. They consequently cannot be heard to urge the unconstitutionality of the statute in the noted respect.Rindge Co. vs. County of Los Angeles, 262 U.S. 700, 710;Dahnke-Walker Milling Co. vs. Bondurant, 257 id. 282, 289; 16 C.J.S. Constitutional Law § 87, p. 179. But by like token they are entitled to a judicial determination of their contention that the condemnation of the land outside of the limits where the Commissioner would relocate and re-establish the lines of Route No. 6, is unreasonable, in bad faith and in abuse of the *Page 55
Commissioner's power. In support of the claim that such is the case, two reasons are assigned, viz., (a) that there is no public necessity for such taking to justify it and (b) even if there is, the manner in which such power is being exercised is so arbitrary as to constitute a misuse of the Commissioner's authority.
The first of these, i.e. "(a)" ante, is contended to arise from the fact that the land taken is not required for or at least, will not be devoted to, any present use for highway purposes. To sustain this, plaintiffs rely upon the following subordinate facts: It appears that the volume of motor-propelled traffic over Route No. 6, as is also the case with a number of highways throughout the State of similar character, width and construction, has greatly increased over the past few years. Because of this the Commissioner feels that the highway should be widened at once and in any event, so far as he now foresees, it will be required that it be made into a four-lane road within the next five years in contrast with the two-lane way that it now is. An additional reason for this conviction hangs on the expectation that Route No. 6 will connect ultimately with a traffic artery of the same number of lanes which is apparently conceived by highway or traffic authorities in the State of New York and which if and when this eventuates it will join at Mill Plain, which is west of Danbury. For the present, however, in view of the restricted amount of funds available and out of a design to afford relief on as many highways similarly situated (with respect to increase of traffic over them) as possible, within the means and facilities presently at hand, it is his purpose to improve the two lane highway as it now exists — apparently by altering it, making changes in the grade, etc., and providing it with a surface of such construction that it will fit into and form part of the eventually visualized four-lane way if and when that is realized. The taking at this time of the additional areas adjoining both boundaries of the highway as they now or are ultimately found to be, is to avoid having to acquire or condemn such land later when it is needed for the actual building of the additional two lanes. The land taken and which will not be used for highway purposes now or in the immediate future, or with certainty at any definable time hereafter is, nevertheless, no more than will be required for such a highway when wrought into one of such sufficient width as to furnish the envisaged facilities. It, thus, admittedly, appears that the disputed area of *Page 56
land taken by the Commissioner is not intended for present use. Plaintiffs maintain that the fact that it may not be employed for highway purposes for five years and that it is not definitely certain that the enlarged highway will be then constructed, establishes that there is no public necessity for taking it at this time and hence that its condemnation at this date indicates an unreasonable exercise of the power of eminent domain and an abuse of the condemnor's authority. The mere circumstances, alone, that the Commissioner has condemned more than he needs for the improvement of the two-lane highway which is the purpose of the immediate project does not establish unreasonableness, bad faith or abuse of power on his part. "In determining whether the taking of property is necessary for public use not only the present demands of the public, but those which may be fairly anticipated in the future, may be considered." Rindge Co. vs. County of Los Angeles, 262 U.S. 700,707. See, also, City of Grand Rapids vs. Barth (In reWidening of Fulton Street), 248 Mich. 13, 16, 226 N.W. 690,691, 64 A.L.R. 1507, 1509; 10 R.C.L. Eminent Domain §§ 29, 35, 37, pp. 32, 39, 41; Burnham vs. Mayor and Aldermen ofBeverly, 309 Mass. 388, 35 N.E.2d 242, 135 A.L.R. 750;Munson vs. MacDonald, supra, p. 656, and cases therein referred to.
The question, then, to be ultimately decided is not whether the land in dispute is needed for present use, or the Commissioner intends to so employ it, but, rather, whether the taking exceeds what is reasonably required for a rationally foreseen prospective need. This may involve the inquiry whether it is being condemned for mere possible future contingencies which may never arise, or if they ultimately do eventuate, can only happen so far in the future that there is no reasonable basis upon which to sanction a taking of land to satisfy them at this time, or whether there is now a reasonably probable prospect that the highway will have to be enlarged into a four-lane route within a presently rationally perceivable reasonably future period. While the plaintiffs have not stated the question this way, it is apparent from the contentions which they have advanced, that it is within the comprehension of their claims. It is not the function of the instant motion to elicit a decision upon this factual question. It is only necessary to ascertain upon the evidence and from other circumstances brought out at the hearing whether the situation will present a substantial question upon a full trial. Sufficient has *Page 57
been produced to be convincing that a fair question of fact is presented; that the plaintiffs' claims in this respect are made in good faith and that they are hence entitled to a full hearing upon the merits. This requires that the existing status quo be maintained until such hearing may be had and the question decided with finality.
Plaintiffs' further contention is that the taking of the land for the widening is invalid because it is done in such a way as to constitute a misuse of the Commissioner's statutory authority (viz., "(b)" supra), arises out of certain indisputable facts, the more important of which are the following: To accomplish the widening for the projected four-lane route in accordance with the layout made, it will be necessary to take land belonging to the plaintiffs lying on both sides of the road substantially opposite, viz., a strip on the west side designated "Parcel No. 2" of a total frontage of about 688 feet; and one on the east side having a frontage of 882 feet. In condemning the land on the latter side, however, the Commissioner has omitted to take a section having a frontage of about 155 feet and a depth of about 70 feet (measured from the old wall line). This area is approximately opposite the barn heretofore referred to and on it the homestead stands, in the foreground of which are several large trees. It will be hereafter referred to as the "house-lot." It lays between two sections of land which the Commissioner has taken on that side of the highway. One of the latter adjoining the house-lot on the north side has a frontage along the highway of about 216 feet and is identified in the description filed as "Parcel No. 1"; the other which lays next to the house-lot on the south side thereof adjoins the highway for a distance of about 411 feet. This is denominated "Parcel No. 3." On Parcel No. 1 is a refreshment stand and a number of trees; Parcel No. 3 is pasture land with a brook flowing through it. The depth of the two parcels condemned is such that if the interior or "taking line" were extended across the house-lot the area necessary to be taken to effectuate the allegedly contemplated project would include that where the dwelling stands, and, of course, the trees in the foreground of the latter.
It is thus evident that instead of condemning all of the land on the east side of the highway, claimed to be required to effectuate the widening, the Commissioner has divided it for the purpose of taking it into three sections, two of which he has condemned and the third of which (viz., the house-lot with the *Page 58
dwelling upon it), although essential to the achievement of the project, he has left to be taken at some future and presently undisclosed date. The reason for this is openly avowed. It is that the house is as valuable at this time as it ever will be and it is the scheme to take it later when, it is hoped (or anticipated) it will be worth less. Unmentioned is the consideration that probably the greatest influence in the possible depreciation of the value of the house-lot are (1) its separation from the rest of the acreage of which, as a farm, it forms an essential part and (2) the fact that the land on both sides of it is already condemned, coupled with the overhanging certainty that it, too, will be taken at any moment that the Commissioner considers opportune to acquire it. A third factor which upon a full hearing might very reasonably develop, relates to the value of the two parcels already taken (i.e. parcels 1 and 3) since it is not at all unreasonable to consider that the value of these condemned separately from the house-lot, as they have been, results in a less price per acre for such areas, too, than would be the case if the entire strip which the Commissioner claims he will need for the improvement were taken at one time, with a consequent diminution of value of the land remaining after the taking. Andrews vs. Cox,127 Conn. 455, 457.
The only authority conferred on the Commissioner by section 1528 is that of condemning land for any of the purposes stated therein. With the amounts of benefits and damages which may be awarded as a result of any taking properly made, he has no concern whatever. These are to be determined upon appeal by the affected property owner in the manner outlined in section 1531 of the General Statutes (now amended as in section 199f of the 1941 Supplement to the General Statutes). The assessment which the Commissioner is required to file in accordance with the provisions of section 1528 has no more effect than that of an offer and only serves the purpose of activating the process for the determination of compensation.Munson vs. MacDonald, supra, p. 657. In dividing the property claimed by him to be required for widening into segments and in refraining from taking the house-lot in the hope of thereby ultimately obtaining all the land that would be needed for the improvement at a less figure than would be the case if the whole strip were condemned at the same time, the Commissioner misused the authority conferred upon him. If by reason of the Commissioner's action, the plaintiffs are damaged *Page 59
in their property or property rights they are entitled to injunctive relief. At any rate, sufficient appears to justify restraining the Commissioner from entering upon the land involved and converting it to highway uses until the plaintiffs are afforded full opportunity to present their claims to the court.
The Commissioner, in a brief filed in his behalf, seems to contend that in so far as the plaintiffs claim damages against him in his official capacity they have no cause of action. This is obviously true. Munson vs. MacDonald, supra, p. 660. In so far as it is claimed that the Commissioner may not be enjoined, however, from performing acts beyond the scope of the statutory provisions from which the source of his authority proceeds and by which it is limited, or from exercising his powers unreasonably, in bad faith or in abuse of them to the injury of any person in his property, the contention is untenable. In granting injunctive relief under such circumstances, courts of equity do not interfere with a State officer in the performance of his official duties; they restrain, only, illegal conduct, in excess of authority, performed under the cloak of official sanction. 32 C.J. Injunctions § 389, p. 247. The propriety of extending equitable relief under similar circumstances has been, at least, strongly intimated in this State. Stock vs.Cox, 125 Conn. 405, 418, 419.
Another objection to the issuance of a temporary injunction in the situation existent here must also be overruled. It has reference to the fact that the plaintiffs appealed from the proceeding commenced by the Commissioner on September 19, 1941, whereby he purported to take plaintiffs' land for the widening, and that of November 4, 1941, in which he sought to exercise the powers conferred upon him in section 530c and section 1528 with respect to the areas which he had invalidly endeavored to relocate and re-establish as within the highway limits on April 28, 1939. The contention is that by taking advantage of the appeals provided by statute, plaintiffs have incapacitated themselves from questioning the validity of the proceedings, relying upon the rule applied in such cases asChudnov vs. Board of Appeals, 113 Conn. 49, 57, referred to in the opinion in National Transportation Co., Inc. vs. Toquet,123 Conn. 468. No discussion need be indulged in here to point out the distinction between a situation such as presented in the Chudnov case and the instant one. This has been made clear in the opinion in the National Transportation Co. case,supra, pp. 478, 479. In any event, the mere institution of such *Page 60
appeals for the purpose of avoiding being debarred from seeking a reassessment of benefits and damages while the validity of the proceedings is being attacked in an independent action is not such an election as will prevent the maintenance of such suit. Norcross vs. City of Cambridge, 166 Mass. 508, 510,44 N.E. 615, 616, 33 L.R.A. 843.
These conclusions result: The purported proceeding to relocate and re-establish the alleged highway limits, commenced on April 28, 1939, is void for lack of the required statutory notice to the plaintiffs; the proceeding commenced on September 19, 1941, for the purpose of widening the highway is invalid (a) since the area taken (in the absence of a valid relocation of highway limits where the proceedings begun April 28, 1939, purported to place them) predicates upon the absent validity of the proceedings of April 28, 1939, and omits the area included in such latter proceeding, which unless the same is ultimately found on a valid relocation proceeding to be within the highway limits would also have to be condemned to effect a valid widening of the highway; and (b) in so far as the land taken on the east side of the highway and the omission of the house-lot is concerned because this indicates that the Commissioner has abused the power conferred upon him by statute. These conclusions are not affected by the proceedings of November 4, 1941, in which the Commissioner endeavored by a joint proceeding under section 530c and section 1528 to re-establish the highway limits and take the land claimed to be within them, which proceeding, at least in so far as the purported taking in such proceeding is concerned, is invalid and is of doubtful validity in so far as the same purports to relocate lost or uncertain highway limits.
The determinations made require that a temporary injunction issue to restrain the Commissioner from entering upon, occupying, using or otherwise interfering with the plaintiffs in their occupancy, possession or control of any of the areas involved, pending further order of the Superior Court or a judge thereof. To justify the inclusion within the restraint of any intrusion under the proceeding of November 4, 1941, it will be necessary that the subject matter of this be added to the complaint by amendment. The issuance of the injunction will be stayed for five days next following the filing of this memorandum with the Clerk of the Superior Court at Waterbury. If such amendment be not filed during such five-day period, the injunction will issue without reference to any entry upon, | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2565668/ | 4 N.Y.3d 801 (2005)
PEOPLE v. OLDHAM.
Court of Appeals of the State of New York.
February 26, 2005.
Application in criminal case for leave to appeal denied. (Kaye, Ch.J.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318958/ | 677 S.E.2d 717 (2009)
SMITH
v.
The STATE.
No. A09A0777.
Court of Appeals of Georgia.
April 16, 2009.
Mack & Harris, Robert L. Mack, Jr., Jonesboro, for appellant.
Jewel C. Scott, District Attorney, Anece Baxter White, Assistant District Attorney, for appellee.
DOYLE, Judge.
Roger Scott Smith was charged with five violations of the Georgia Controlled Substances Act: two counts of possession of cocaine (Counts 1 and 3);[1] possession of less than one ounce of marijuana (Count 2);[2] possession of MDMA (Count 4);[3] and possession of more than one ounce of marijuana (Count 5).[4] A jury found him guilty of all five charges, and the trial court sentenced him on Counts 1, 4, and 5.[5] Smith appeals, challenging the sufficiency of the evidence. We affirm, for reasons that follow.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence.[6] We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether a rational trier of fact could have found *718 the defendant guilty beyond a reasonable doubt.[7]
So viewed, the evidence shows that a member of the narcotics unit of the Clayton County Police Department executed a search warrant on a two-bedroom apartment shared by Smith and Jimmy Hemphill. During the search, the police found 22 grams of crack cocaine and 29 grams of MDMA in a cigar box on top of a DVD player in the bedroom on the right side of the apartment, as well as $110 in cash affixed to the wall. The bedroom also contained a dresser from which police recovered: a Georgia driver's license issued to Smith; a Georgia driver's license issued to Pleasant Owens; a credit card bearing Owens's name; $58 in cash; seven grams of marijuana in the first drawer, along with several blunt cigars; twenty grams of marijuana contained in several green baggies inside a clear ziplock bag in the second drawer; and 109 grams of marijuana in a clear ziplock bag in the third drawer. In addition, the police found a photograph of Smith and Hemphill and a work order bearing Smith's name from a cable company in the closet of the bedroom on the right.
In the bedroom on the left, the police found: a lease agreement for the apartment in Hemphill's name; a Georgia driver's license issued to Hemphill; a letter addressed to Hemphill; another letter addressed to Altinisha Adams; a cable bill addressed to Smith; and a plastic bag containing a residue amount of marijuana. They also found a plate and a jar containing cocaine residue in a kitchen cabinet.
The State charged Smith and Hemphill with five counts of violating the Georgia Controlled Substances Act, and the two men were tried together in a joint trial.[8] Hemphill testified at trial, stating that he occupied the master bedroom located on the left side of the apartment and that Smith occupied the bedroom on the right side. Hemphill also testified that Smith's girlfriend, Owens, spent the night at the apartment on a regular basis, as did Adams, the mother of Hemphill's son. Hemphill denied that the drugs found in the apartment belonged to him or Adams or that he had any knowledge thereof.
Smith challenges the sufficiency of the evidence on appeal, arguing that because he shared the apartment with Hemphill and because other individuals, including Owens and Adams, had access to the apartment, the drugs could have belonged to any of them and, under the equal access rule, the State failed to prove possession.
Under the equal access rule, "merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime."[9] However, while the fact that Hemphill and other persons had equal access to "the drugs may inculpate them, ... such evidence does not automatically exculpate [Smith]. Instead, whether the evidence that others had access to the contraband was sufficient to rebut the evidence that [Smith] was in possession of the drugs was properly reserved for the jury."[10]
Here, the evidence inculpates Smith with possession of the drugs found in the bedroom where he evidently lived, which included the crack cocaine found in a cigar box, the seven grams of marijuana found in the first drawer of the dresser,[11] the MDMA found in a cigar *719 box, and the 109 grams of marijuana found in the third dresser drawer.[12] Under the circumstances, the jury was authorized to conclude that the cocaine residue found in the kitchen supported the second count of possession of cocaine.[13] And
[t]he totality of the evidence here did not demand a "not guilty" verdict on the possession charge, but authorized a finding that [Smith] was in possession of the [drugs], even though there also was evidence authorizing a finding that others had equal access to the same contraband. Whether the evidence that others had access to the contraband was sufficient to rebut the evidence that [Smith] was in possession of the drug[s] was properly reserved for the jury.[14]
Judgment affirmed.
ELLINGTON and MIKELL, JJ., concur.
NOTES
[1] OCGA § 16-13-30(a).
[2] OCGA § 16-13-30.
[3] OCGA § 16-13-25(3)(Z) (MDMA, an abbreviation for 3, 4-methylenedioxymethamphetamine, is commonly known as "ecstasy").
[4] OCGA § 16-13-30.
[5] The trial court merged Count 2 with Count 5 and merged Count 3 with Count 1.
[6] See Maldonado v. State, 293 Ga.App. 356, 667 S.E.2d 156 (2008).
[7] See id.
[8] The jury found Hemphill guilty on Count 2 and not guilty on Count 4. The jury was not able to reach a verdict as to the remaining three counts of the indictment against Hemphill, and the State agreed to enter a nolle prosequi for each of those counts.
[9] Andrews v. State, 219 Ga.App. 808, 809(1), 466 S.E.2d 909 (1996).
[10] (Citation and punctuation omitted.) Castillo v. State, 288 Ga.App. 828, 830, 655 S.E.2d 695 (2007).
[11] Smith argues that the State failed to prove possession as to the marijuana found in Hemphill's bedroom. But the police located seven grams of marijuana in the first dresser drawer, which supports Count 2 (possession of less than one ounce of marijuana), and 109 grams of marijuana in the third drawer, which supports Count 5 (more than one ounce of marijuana). Thus, the State did not have to establish that Smith possessed the marijuana recovered from Hemphill's bedroom.
[12] See Cantrell v. State, 204 Ga.App. 330, 331, 419 S.E.2d 141 (1992).
[13] See Daugherty v. State, 283 Ga.App. 664, 667(1), 642 S.E.2d 345 (2007).
[14] (Footnote omitted.) McWhorter v. State, 275 Ga.App. 624, 628-629(1)(b), 621 S.E.2d 571 (2005). See also Castillo, 288 Ga.App. at 830, 655 S.E.2d 695; Daugherty, 283 Ga.App. at 667(1), 642 S.E.2d 345. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743226/ | 301 So. 2d 122 (1974)
Robert J. GRINE, Appellant,
v.
STATE of Florida, Appellee.
No. 73-1019.
District Court of Appeal of Florida, Second District.
September 18, 1974.
James A. Gardner, Public Defender, and E. Earl Taylor, Jr., Asst. Public Defender, Bradenton, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Richard C. Booth, Asst. Atty. Gen., Tampa, for appellee.
HOBSON, Acting Chief Judge.
The briefs and the record on appeal having been read and given full consideration, and appellant having failed to demonstrate reversible error, the judgment appealed is affirmed.
However, there appears to be a discrepancy between the sentence pronounced in open court and the sentence order filed on November 16, 1973. The trial court sentenced appellant to a term of three years in the state prison, and stated:
"You will be given credit for the time you have already spent in the county jail."
The sentence order specified that appellant would receive no credit for time spent in county jail.
The cause is therefore remanded to the trial court for the purpose of entering a corrective sentence order specifically setting *123 forth the period of credit time allowed appellant in accordance with § 921.161(1) F.S.
The judgment is affirmed and the cause is remanded with directions.
McNULTY and BOARDMAN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260992/ | 130 Cal.Rptr.2d 400 (2003)
106 Cal.App.4th 19
The PEOPLE, Plaintiff and Respondent,
v.
Edward BELMARES, Defendant and Appellant.
No. F039060.
Court of Appeal, Fifth District.
February 6, 2003.
Review Denied April 30, 2003.[*]
*401 Tara K. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Stan Cross and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GOMES, J.
FACTUAL AND PROCEDURAL HISTORY
After starting to argue and fight with two young men, Edward Belmares (convicted *402 herein as Edward Balmares) hit one on the head with a rock. Two deputy sheriffs who struggled to restrain him pepper-sprayed him, took him to the ground, and secured his legs to his handcuffs before he finally stopped kicking and yelling.[1] A jury found him guilty of assault with a deadly weapon, deterring an executive officer from performing a lawful duty (deterring), and resisting a peace officer in the discharge of an official duty (resisting). (Pen.Code, §§ 245, subd. (a)(1), 69, 148, subd. (a)(1).[2]) At a bifurcated trial, the jury found allegations of two prior prison terms true. (§§ 667.5, subd. (b), 969b.[3])
ISSUES ON APPEAL
On appeal, Belmares raises two arguments. First, on the premise that resisting is a lesser included offense of deterring, he argues the judgment violates the rule against grounding multiple convictions in necessarily included offenses. (§ 954.) Second, on the premise that he had a constitutional right to a jury trial on the identity of the person in the section 969b packet, he argues the court's instructing the jury without finding he was that person violated due process and section 1025. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, §§ 15, 16.) We will affirm the judgment.
DISCUSSION
1. Multiple Convictions for Deterring an Officer and Resisting an Officer
On the premise that resisting is a lesser included offense of deterring, Belmares argues the judgment violates the rule against grounding multiple convictions in necessarily included offenses. The Attorney General argues the contrary.
The general rule permitting multiple convictions arises from section 954.[4] Despite the statute's "seemingly absolute language" permitting conviction "`of any number of the offenses charged,'" an exception to the rule exists. (People v. Ortega (1998) 19 Cal.4th 686, 692, 80 Cal. Rptr.2d 489, 968 P.2d 48.) The California Supreme Court "has long held that multiple convictions may not be based on necessarily included offenses. [Citations.]" (People v. Pearson (1986) 42 Cal.3d 351, 355, 228 Cal.Rptr. 509, 721 P.2d 595.) "The definition of a lesser necessarily included offense is technical and relatively clear. Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include *403 all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117, 77 Cal.Rptr.2d 848, 960 P.2d 1073, italics added, citing People v. Lohbauer (1981) 29 Cal.3d 364, 368-369, 173 Cal.Rptr. 453, 627 P.2d 183; People v. Marshall (1957) 48 Cal.2d 394, 405-407, 309 P.2d 456.) We will analyze first the statutory elements of the two offenses and then the pleadings in the case at bar.
Analysis of the statutory elements of the two offenses shows resisting requires commission of the crime at the time of a peace officer's discharge or attempted discharge of a duty of his or her office or employment. (§ 148, subd. (a)(1).[5]) A CALJIC instruction so defines that temporal element:
"In order to prove this crime, each of the following elements must be proved:
"1. A person willfully resisted, delayed, or obstructed a [peace officer] [public officer] [(other)];
"2. At the time the [peace officer] [public officer] [(other)] was engaged in the performance of [his][her] duties; and
"3. The person who willfully resisted, delayed, or obstructed knew or reasonably should have known that:
"(a) the other person was a [peace officer] [public officer] [(other)];
"(b) and was engaged in the performance of [his][her] duties." (CALJIC No. 16.102 (1998 rev.) (July 2002 pocket pt.) italics added.)
Deterring, on the other hand, has disjunctive temporal elements, one of which is congruent with, the other of which is inconsistent with, the temporal element of resisting. (§ 69.[6]) "[T]he plain language of the statute encompasses attempts to deter either an officer's immediate performance of a duty imposed by law or the officer's performance of such a duty at some time in the future." (In Re Manuel G. (1997) 16 Cal.4th 805, 817, 66 Cal. Rptr.2d 701, 941 P.2d 880; accord, com. to CALJIC No. 7.50 (July 2002 pocket pt.) p. 89.) A CALJIC instruction so defines those disjunctive temporal elements:
"In order to prove this crime, each of the following elements must be proved:
"[1. A person willfully [and unlawfully] attempted to deter or prevent an executive officer from performing any duty imposed upon that officer by law; and
"2. The attempt was accomplished by means of any threat or violence.]
"[1. A person knowingly [and unlawfully] resisted an executive officer in the performance of his or her duty; and
"2. The resistance was accomplished by means of force or violence.]" (CALJIC No. 7.50 (6th ed.1996).)
By the statutory elements test, then, we hold resisting is not a lesser included offense of deterring since one can deter an officer's duty in the future (§ 69) without resisting the officer's discharge or attempted discharge of a duty at that time (§ 148, subd. (a)(1)). (See People v. Birks, supra, 19 Cal.4th at p. 117, 77 Cal.Rptr.2d *404 848, 960 P.2d 1073.) We turn, then, to the pleadings test.
The information shows the deterring count charged the following:
"On or about April 18, 2001, Edward Balmares [sic], did willfully and unlawfully attempt by means of threats or violence to deter or prevent [each of two peace officers], who was then and there an executive officer, from performing a duty imposed upon such officer by law, or did knowingly resist by the use of force or violence said executive officer in the performance of his/her duty, in violation of Penal Code section 69, a felony."
The information shows the resisting count charged the following:
"On or about April 18, 2001, Edward Balmares [sic], did willfully and unlawfully resist, delay, or obstruct a peace officer who was then and there attempting to or discharging the duty of his/her office or employment, in violation of Penal Code section 148, a misdemeanor."
Both the deterring count and the resisting count use the word "resist," as do the respective statutes. (§§ 69, 148, subd. (a)(1).) Besides that word, the deterring count uses the words "deter" and "prevent" and the resisting count uses the words "delay" and "obstruct," as do the respective statutes. (Compare § 69 with § 148, subd. (a)(1).) Since those four words in the pleadings track precisely the identical four words in the Legislature's enactment of the statutes from which the pleadings derive, we turn to traditional principles of statutory construction to analyze the pleadings. The first step in that analysis "is to focus on the words used by the Legislature in order to determine their traditional and plain meaning." (Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 763, 280 Cal.Rptr. 745, 809 P.2d 404.) We put aside the sole word in common"resist"and seek the meanings of the other four words.
In the context of the deterring count, the meaning of "deter" includes "turn aside, discourage, or prevent from acting by fear or consideration of dangerous, difficult, or unpleasant attendant circumstances" and "inhibit." (Webster's 3d New Internat. Diet. (1986) p. 616.) In the same context, the meaning of "prevent" includes "deprive of power or hope of acting, operating, or succeeding in a purpose," "frustrate," "circumvent," "keep from happening or existing," "hinder," and "stop." (Id. at p. 1798.)
In the context of the resisting count, the meaning of "delay" includes "put off," "prolong the time of or before," "postpone," "defer," "stop, detain, or hinder for a time," "check the motion of, lessen the progress of, or slow the time of arrival of," "cause to be slower or to occur more slowly than normal," and "retard." (Webster's 3d New Internat. Diet., supra, p. 595.) In the same context, the meaning of "obstruct" is "be or come in the way of," "hinder from passing, action, or operation," "impede," "retard," "shut out," and "place obstacles in the way." (Id. at p. 1559.)
The only word common to the definitions of any of those four words is "stop," which appears in the definition of "prevent" in the deterring count and in the definition of "delay" in the resisting count. (Webster's 3d New Internat. Diet., supra, pp. 595, 1798.) The implications are quite different, however. In the definition of the word "prevent" in the deterring count, "stop" stands alone. (Id. at p. 1798.) In the definition of "delay" in the resisting count, on the other hand, "stop" appears in only the limited sense of "stop, detain, or hinder for a time." (Id. at p. 595, italics added.) No synonym of either of the words "deter" and "prevent" in the deterring count is the same as any synonym of *405 either of the words "delay" and "obstruct" in the resisting count. (Id. at pp. 595, 616, 1559, 1798.)
To generalize, the meanings of the words "deter" and "prevent" in the deterring count and of the words "delay" and "obstruct" in the resisting count have noteworthy differences. The former two tend to connote a decisive, definite, or indubitable quality that contrasts with the provisional, temporary, or tentative note the latter two tend to strike. That none of those four words shares a common synonym bolsters that generalization. To generalize, of course, is to dare both genius and tomfoolery at once. On the one hand, "To generalize means to think." (Hegel, Philosophy of Right (1821) Introduction, addition 4, reprinted in Columbia Diet, of Quotations (1993) p. 362.) On the other hand, "To generalize is to be an idiot." (Blake, Discourse II (1808) annotations to Discourses of Sir Joshua Reynolds, reprinted in Columbia Diet, of Quotations, supra, p. 362.) We neither disclaim Blake's criticism nor claim Hegel's praise but seek only to discern legislative intent.
"When the Legislature uses materially different language in statutory provisions addressing the same subject or related subjects, the normal inference is that the Legislature intended a difference in meaning. [Citation.]" (People v. Trevino (2001) 26 Cal.4th 237, 242, 109 Cal.Rptr.2d 567, 27 P.3d 283.) In harmony with that principle of statutory construction, we infer from the Legislature's use of markedly different words in the deterring and resisting statutes a legislative intent not to incorporate into either statute the meanings of the words of the other. (Ibid.) By the pleading test, then, as by the statutory elements test before, we hold resisting is not a lesser included offense of deterring. (See People v. Birks, supra, 19 Cal.4th at p. 117, 77 Cal.Rptr.2d 848, 960 P.2d 1073.) As Belmares's premise that resisting is a lesser included offense of deterring fails, so we reject his argument that the judgment violates the rule against grounding multiple convictions in necessarily included offenses.
2. Post-Apprendi Bifurcated Trial of Identity in Prison Term Priors
With no objection by Belmares, the court instructed the jury he was "the person whose name appears on the documents admitted to establish the convictions." (CALJIC No. 17.18.1 (2001 rev.).) The jury found both prison term priors true. On the premise that he had a constitutional right to a jury trial on the identity of the person in the section 969b packet, he argues the court's instructing the jury without finding he was that person violated due process and section 1025. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, §§ 15, 16.) The Attorney General argues he waived appellate review by failing to object, he had no constitutional right to a jury trial on identity, the instruction necessarily states a true finding on that issue, and error, if any, was harmless.
Preliminarily, we address the Attorney General's waiver argument. "Not all claims of error are prohibited in the absence of a timely objection in the trial court. A defendant is not precluded from raising for the first time on appeal a claim asserting the deprivation of certain fundamental, constitutional rights." (People v. Vera (1997) 15 Cal.4th 269, 276, 62 Cal. Rptr.2d 754, 934 P.2d 1279.) Among those rights is the constitutional right to a jury trial. (Id. at pp. 276-277, 62 Cal.Rptr.2d 754, 934 P.2d 1279, citing People v. Holmes (1960) 54 Cal.2d 442, 443-44, 5 Cal.Rptr. 871, 353 P.2d 583.) Since Belmares's jury trial argument has, in part, a legitimate constitutional basis, we reject as to that *406 argument the Attorney General's waiver argument.
"Other than the fact of a prior conviction," the United States Supreme Court held, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435.) Analyzing post-Apprendi case law from various jurisdictions, the Second Appellate District, Division Five observed: "Courts have not described Apprendi as requiring jury trials on matters other than the precise `fact' of a prior conviction. Rather, courts have held that no jury trial right exists on matters involving the more broadly framed issue of `recidivism.' [Citations.]" (People v. Thomas (2001) 91 Cal.App.4th 212, 221, 110 Cal.Rptr.2d 571.) In a summary of the state of the law in California after Apprendi the California Supreme Court held: "The right, if any, to a jury trial of prior conviction allegations derives from sections 1025[[7]] and 1158,[[8]] not from the state or federal Constitution. [Citations.]" (People v. Epps (2001) 25 Cal.4th 19, 23, 104 Cal.Rptr.2d 572, 18 P.3d 2.) Accordingly, we hold Belmares had no constitutional right to a jury trial on his identity as the person in the section 969b packet.
Shorn of the faulty premise of a constitutional jury trial violation, Belmares's argument is entirely statutory in origin, as he cannot bootstrap a claim of a statutory violation into a claim of a due process violation. So we return to the Attorney General's waiver argument. An objection is necessary for appellate review of compliance with section 1025. (People v. Vera, supra, 15 Cal.4th at pp. 272, 274, 276-277, 62 Cal.Rptr.2d 754, 934 P.2d 1279; People v. Saunders (1993) 5 Cal.4th 580, 589-592, 20 Cal.Rptr.2d 638, 853 P.2d 1093.) By failing to object, Belmares waived appellate review of that issue. Nonetheless, "to forestall a subsequent claim of ineffectiveness of counsel," we will address his claim on the merits. (People v. Martin (1995) 32 Cal.App.4th 656, 661, 38 Cal.Rptr.2d 776, disapproved on another ground in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10, 76 Cal.Rptr.2d 255, 957 P.2d 945.)
"[T]he question of whether the defendant is the person who has suffered the prior conviction shall be tried by the court without a jury." (§ 1025, subd. (c); Stats. 1997, ch. 95, § 1.) Legislative history confirms that section 1025 "creates a specific exception for the question of identity" to the jury trial right the statute otherwise *407 confers for a prior conviction. (People v. Epps, supra, 25 Cal.4th at p. 25, 104 Cal. Rptr.2d 572, 18 P.3d 2.) Case law sets out the procedure for the court to find and instruct on identity: "If ... the court finds the defendant is th[e] person [in the section 969b packet], [t]he court would ... instruct the jury to the effect that the defendant is the person whose name appears on the documents admitted to establish the conviction." (People v. Kelii (1999) 21 Cal.4th 452, 458, 87 Cal.Rptr.2d 674, 981 P.2d 518; see People v. Epps, supra, at p. 26, 104 Cal.Rptr.2d 572, 18 P.3d 2.) The record in the case at bar shows no "I find" language by the court, but section 1158 states only that the finding "may be" in those words. The statute "does not require that the court use those words." (People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1440, 18 Cal.Rptr.2d 371.)
In Gutierrez, on which Belmares relies, the record showed no true finding on the accused's prison term prior but only compliance at sentencing with a suggestion by the court clerk that a stay issue. (People v. Gutierrez, supra, 14 Cal.App.4th at p. 1440, 18 Cal.Rptr.2d 371.) The appellate court declined "to equate the trial court's acquiescence in his clerk's suggestion (`you are going to stay the priors ...') as an implied judicial finding that the priors had been proved." (Ibid.)
In the case at bar, on the other hand, the record shows instruction to the jury that Belmares was the person in the section 969b packet. Unlike the trial court's mere acquiescence in Gutierrez, that instruction constituted an affirmative act from which one arguably could infer a true finding on the issue of identity. (Cf. People v. Gutierrez, supra, 14 Cal.App.4th at p. 1440, 18 Cal.Rptr.2d 371.) Gutierrez is inapposite.
Since evidence of identity was overwhelming, we need not decide whether a true finding was inferable from the instruction or, as the Attorney General argues, whether the instruction constituted a true finding. At the guilt phase, Belmares testified he served one prison term for elder abuse and another prison term for "ex-con with a gun." The section 969b packet included abstracts of judgment for elder abuse and possession of a firearm by a felon. In argument at the priors phase, both counsel referred to the photograph in the section 969b packet. The jury had ample opportunity to compare that photograph with the person who testified in his own defense at the guilt phase. A result more favorable to Belmares was not reasonably probable even if the court had used the "I find" language section 1158 recommends. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: DIBIASO, Acting P.J., and WISEMAN, J.
NOTES
[*] Kennard, J., Werdegar, J., and Moreno, J., dissented.
[1] Other relevant facts appear in the discussion of issues on appeal.
[2] Statutory references not otherwise noted are to the Penal Code.
[3] Section 969b permits proof of priors with a packet of certified prison records.
[4] Section 954: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count."
[5] Section 148, subdivision (a)(1): "Every person who willfully resists, delays, or obstructs any ... peace officer ... in the discharge or attempt to discharge any duty of his or her office or employment ... shall be punished. ..." (Italics added.)
[6] Section 69: "Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable...."
[7] Section 1025, subdivisions (b) and (c): "(b) Except as provided in subdivision (c), the question of whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty, or in the case of a plea of guilty or nolo contendere, by a jury impaneled for that purpose, or by the court if a jury is waived. [¶] (c) Notwithstanding the provisions of subdivision (b), the question of whether the defendant is the person who has suffered the prior conviction shall he tried by the court without a jury." (Italics added.)
[8] Section 1158: "Whenever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, the jury, or the judge if a jury trial is waived, must unless the answer of the defendant admits such previous conviction, find whether or not he has suffered such previous conviction. The verdict or finding upon the charge of previous conviction may be: `We (or I) find the charge of previous conviction true' or `We (or I) find the charge of previous conviction not true,' according as the jury or the judge find that the defendant has or has not suffered such conviction. If more than one previous conviction is charged a separate finding must be made as to each." (Italics added.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/258918/ | 310 F.2d 715
Clyde B. TERRY, Appellant,v.UNITED STATES of America, Appellee.
No. 19486.
United States Court of Appeals Fifth Circuit.
November 28, 1962.
Reuben A. Garland, Atlanta, Ga., for appellant.
Charles L. Goodson, U. S. Atty., J. Robert Sparks, Asst. U. S. Atty., Edgar L. Jenkins, Asst. U. S. Atty., Atlanta, Ga., for appellee.
Before TUTTLE, Chief Judge, WISDOM, Circuit Judge, and JOHNSON, District Judge.
PER CURIAM.
1
Clyde B. Terry was indicted for the unlawful transfer of marihuana. 26 U.S. C.A. § 4742; 68A Stat. 560. Count one charged that on January 7, 1960, without a written order, he unlawfully transferred 20 grams of marihuana to Norris Farmer and Jewell Collins. Count two charged that on February 10, 1960, without a written order, he transferred 25 grams of marihuana to the same persons. Terry was convicted on only the first count.
2
The appellant contends, first, that he was prejudiced by the joinder of charges. There is no merit to the contention. Two or more offenses may be charged in the same indictment, if they are of the same or similar character. Rule 8(a), F.R.Crim.P. Courts have often upheld a joinder of similar offenses. Kivette v. United States, 5 Cir., 1956, 230 F.2d 749, cert. den'd 355 U.S. 935, 78 S.Ct. 419, 2 L.Ed.2d 418; Hoover v. United States, 10 Cir., 1959, 268 F.2d 787; Peckham v. United States, 1953, 93 U.S. App.D.C. 136, 210 F.2d 693. Here the offenses were identical.
3
We note too that the defendant did not move for a severance of counts. In a similar situation in a recent case, Pummill v. United States, 8 Cir., 1961, 297 F.2d 34, the court held:
4
"The two offenses with which appellant was charged were of the same character and were, therefore, properly subject, under Rule 8(a) of the Rules of Criminal Procedure, 18 U.S. C.A., to joinder in the same indictment. Neither the trial nor the sentence which appellant seeks to have set aside would be illegal. If there was any sound basis for asking to have the charges tried separately, this should have been done by a motion made at the time under Rule 14 of the Rules of Criminal Procedure, 18 U.S.C.A. Appellant's contention of prejudice from joinder cannot be used for a basis for collateral attack."
5
The defendant's second contention is that the evidence is insufficient to support conviction. After a careful study of the record, having in mind the standards for appellate review, the Court finds that the evidence supports the verdict and judgment.
The judgment is
6
Affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2260891/ | 238 P.3d 867 (2008)
WYDEVEN (JAMES)
v.
WARDEN.
No. 50748.
Supreme Court of Nevada.
July 22, 2008.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319127/ | 94 Ga. App. 240 (1956)
94 S.E.2d 156
PEABODY MANUFACTURING CO.
v.
SMITH et al. MULLINS
v.
PEABODY MANUFACTURING CO. et al.
36136, 36137.
Court of Appeals of Georgia.
Decided June 25, 1956.
Rehearing Denied July 17, 1956.
*242 Carter, Latimer & Savell, for Peabody Manufacturing Company.
Hurt, Gaines & Baird, W. Neal Baird, J. Corbett Peek, Jr., for Smith.
Nall, Sterne, Miller, Cadenhead & Dennis, John J. Poole, A. Paul Cadenhead, for Mullins.
NICHOLS, J.
1. The Supreme Court in Brown v. Smith & Kelly, 86 Ga. 274, 277 (12 S.E. 411, 22 Am. St. Rep. 456), recognized the rule that only the master of a servant could be held liable for his negligence. The exceptions to this rule are set forth in Code § 105-502 where it is provided that in certain cases the employer of a contractor may be held liable for the negligence of the contractor, or his employees. In the present case the employer, or landowner, is attempting to hold both the contractor and the Subcontractor liable for the negligence of an employee of one of them. The contract between the landowner and the contractor provided for subcontracts in certain cases. It then set forth the procedure for securing subcontractors. The contractor was to secure bids from subcontractors approved by the architect and deliver such bids to him, or the architect could procure such bids himself, and in either case the architect, with the advice of the contractor, would determine the best bid subject to the approval of the owner as to award and amount of the accepted bid. Therefore, the contractor had no initial or final control over the selection of subcontractors. Actually both the contractor and the subcontractor occupied the relationship of contractors to the landowner. Accordingly, only the employer of the welder could be held liable for negligence even though the contract between the landowner and the contractor *243 stated that the contractor would have full directing authority over the execution of the contract.
Although the petition charges the defendants with negligence, the negligence complained of is the negligence of the employee and his employer, therefore the question for decision is which of the defendants was the master of the welder. Under the decision of the Supreme Court in Brown v. Smith & Kelly, 86 Ga. 274, (which is apparently the leading case in Georgia on this question), the test is which employer had the right to control the employee and to discharge him and employ others to do his work. Although an exhibit attached to the plaintiff's petition, (the contract between the plaintiff and the contractor), states that the contractor had full directing authority over the execution of the subcontracts, this same exhibit, as shown above, reserved in the plaintiff the sole authority to approve the selection of subcontractors, and the contractor could not even receive a bid from a subcontractor unless such subcontractor had previously been approved by the architect. Under such circumstances it cannot be said that the contractor had authority to remove the welder and employ another in his place, and the welder must be construed as having been an employee of the subcontractor. It follows therefore that the architect being the agent of the owner and not the contractor, the subcontractor was not directly employed by the contractor. Accordingly, Article VIII of the contract providing that "any costs due to the negligence of the contractor or anyone directly employed by him, either for the making good of defective work . . . making good of damage to property . . . shall be borne by the contractor" fails to render the contractor liable for the negligence of the employee of the subcontractor.
The trial court did not err in sustaining the motion to dismiss made by the contractor, and in overruling the general demurrer filed by the subcontractor. See also, Atlanta & Florida R. Co. v. Kimberly, 87 Ga. 161 (13 S.E. 277, 27 Am. St. Rep. 231); Georgia Ry. & Power Co. v. Middlebrooks, 34 Ga. App. 156 (128 S.E. 777); Bibb Manufacturing Co. v. Souther, 52 Ga. App. 722 (184 S.E. 421); and Southern Bell Telephone &c. v. Dekle, 83 Ga. App. 261 (63 S.E.2d 275), affirmed by the Supreme Court, 208 Ga. 254 (66 S.E.2d 218).
*244 2. The allegation of negligence specially demurred to by the defendant Mullins is supported by pleaded facts and can not be construed as being a conclusion of the pleader. Therefore the trial court did not err in overruling this ground of special demurrer.
Judgments affirmed in both cases. Felton, C. J., Gardner, P. J., Townsend, Carlisle, and Quillian, JJ., concur in Case No. 36137. Gardner, P. J., Townsend and Quillian, JJ., concur, and Felton, C. J., and Carlisle, J., dissent in case No. 36136.
FELTON, C. J., dissenting in Case No. 36136. The contract between the plaintiff and E. Jack Smith, the principal contractor, provides:
"Article 3. Contractor's duties and status. The contractor recognizes the relations of trust and confidence established between him and the owner by this agreement. He covenants with the owner to furnish his best skill and judgment and to co-operate with the architect in forwarding the interests of the owner. He agrees to furnish efficient business administration and superintendence and to use every effort to keep upon the work at all times an adequate supply of workmen and materials, and to secure its execution in the best and soundest way and in the most expeditious and economical manner consistent with the interests of the owner.
"Article 8. Contractor's financial responsibility. All cost due to the negligence of the contractor or any directly employed by him, either for the making good of defective work, disposal of material wrongly supplied, making good of damage to property, or excess costs for material or labor, or otherwise, shall be borne by the contractor, and the owner may withhold money due the contractor to cover any such cost already paid by him as part of the cost of the work.
"The article supersedes the provisions of Article 13, 19 and 20 of the general conditions of the contract so far as they are inconsistent herewith.
"Article 9. Subcontracts. All portions of the work that the contractor's organization has not been accustomed to perform or that the owner may direct, shall be executed under subcontracts unless otherwise directed by the owner. The contractor shall ask for bids from subcontractors approved by the architect *245 and shall deliver such bids to him, or the architect shall procure such bids himself, and in either case the architect shall determine, with the advice of the contractor and subject to the approval of the owner, the award and amount of the accepted bid. Such work shall be contracted for with such approved bidders in accordance with terms of this agreement and the general conditions of the contract which conditions shall for the purposes of such contracts, stand as printed or written and not subject to the modifications set forth herein.
"The contractor, being fully responsible for the general management of the building operation, shall have full directing authority over the execution of the subcontracts.
"If the owner lets any portions of the work under separate contracts the separate contractors shall not only cooperate with each other and with the contractor as provided in Article 35 of the general conditions of the contract, but they shall conform to all directions of the contractor in regard to the progress of the work."
Code § 105-502 provides in part: "The employer is liable for the negligence of the contractor . . . 3. If the wrongful act is the violation of a duty imposed by express contract upon the employer. . ."
Article 9 provides that certain parts of the work could be executed under subcontracts in a specified way. There could be no subcontract made by the owner so it is inescapable that all subcontractors contracted with the contractor and not the owner, regardless of how the subcontractor was selected. If the contractor contracted with the subcontractor the subcontractor was directly employed by the contractor. The petition specifically alleges that S. D. Mullins was employed by the contractor as a subcontractor to do certain work, including welding operations. There is nothing in the contract between the plaintiff and the contractor to make such an allegation impossible of proof, or contrary to the provisions of the contract between the owner and the contractor. If the owner selected a subcontractor and the contractor alone entered into a contract with him, I do not see how it can be said that the relationship of owner and subcontractor or contractor existed between the owner and the subcontractor.
Carlisle, J., concurs in the dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319101/ | 70 S.E.2d 189 (1952)
235 N.C. 404
In re McGOWAN'S WILL.
No. 308.
Supreme Court of North Carolina.
April 16, 1952.
*190 Williams & Whisnant and W. H. Strickland, all of Lenoir, for propounder, appellant.
James C. Farthing, Lenoir, and Mull, Patton & Craven, Morganton, for caveators, appellees.
DENNY, Justice.
The trial below resolved itself into an inquiry as to whether the signature appearing on the paper writing offered for probate in solemn form, as the last will and testament of W. H. McGowan, was or was not his genuine signature, there being no contention that the signature was affixed by anyone authorized by him to sign his name thereto. The evidence was conflicting on this question. Even so, there was ample evidence to support the verdict of the jury. Consequently, the verdict should be upheld unless some prejudicial error was committed in the course of the trial.
The propounder offered in evidence the original paper writing which had been probated in common form, as the last will and testament of W. H. McGowan. This instrument was admitted and marked, "Propounder's Exhibit A." Thereafter, the caveators offered evidence to the effect that they had caused a photographic copy of propounder's Exhibit A to be made in the presence of the Assistant Clerk of the Superior Court of *191 Caldwell County, and offered such copy in evidence. The propounder objected to its admission, whereupon the court overruled the objection and instructed the jury as follows: "* * * the photographic copy of the instrument that caveators offer in evidence is not to be considered by you as substantive evidence. It is only admitted for the purpose of illustrating the testimony of the witness, and you will receive it only in its illustrative effect, and not as substantive evidence."
The handwriting expert, who was a witness for the caveators, testified that he took the photographic copy of propounder's Exhibit A to his office in Charlotte and used it in making a comparison of the signature appearing thereon with the genuine handwriting of W. H. McGowan; that he also examined propounder's Exhibit A and the signatures on various checks identified by witnesses who testified the signatures on the checks were in the genuine handwriting of W. H. McGowan, and, in his opinion, the signature appearing on propounder's Exhibit A was not the genuine signature of W. H. McGowan.
The propounder now takes the position that since the caveators did not offer the photographic copy of propounder's Exhibit A for the purpose of attack or impeachment, they are bound by it to the same extent as if they had offered the original instrument without qualification. The propounder contends that by offering in evidence a photographic copy of the propounder's Exhibit A, the caveators are estopped from denying the authenticity, or the due execution of the original instrument. The contention is untenable.
A photographic or photostatic copy of an instrument or document is nothing more than a photograph of it. And in this jurisdiction, photographs, when properly authenticated, are competent for use in illustrating or explaining the testimony of a witness, but may not be admitted as substantive evidence. Hence, the photograph of propounder's Exhibit A was admissible only for the restricted use specified by the trial judge. It was not admitted as substantive evidence. State v. Gardner, 228 N.C. 567, 46 S.E.2d 824; State v. Mays, 225 N.C. 486, 35 S.E.2d 494; State v. Miller, 219 N.C. 514, 14 S.E.2d 522; Queen City Coach Co. v. Lee, 218 N.C. 320, 11 S.E.2d 341; Pearson v. Luther, 212 N.C. 412, 193 S.E. 739; Kelly v. Raleigh Granite Co., 200 N.C. 326, 156 S.E. 517; Elliott v. Tallassee Power Co., 190 N.C. 62, 128 S.E. 730; State v. Jones, 175 N.C. 709, 95 S.E. 576; Pickett v. Atlantic Coast Line R. Co., 153 N.C. 148, 69 S.E. 8; Hampton v. Norfolk & W. R. Co., 120 N.C. 534, 27 S.E. 96, 35 L.R.A. 808.
Assignment of error No. 49 is bottomed on the exception to the refusal of the court to admit the testimony of one of propounder's witnesses with respect to certain conversations the witness had with W. H. McGowan several months prior to his death. The testimony of the witness was taken in the absence of the jury and excluded by the court. The substance of it was to the effect that W. H. McGowan visited the office of the witness in the late summer or early fall of 1950; that he said he wanted his advice; that some of his real property was in his name alone, and some of it was in his wife's name and he wanted his wife to have all his property if she survived him. He asked him what was the best thing to do. The witness said: "I told him the best thing to do was to make a will." Two or three months later, toward the end of 1950, Mr. W. H. McGowan again raised this same question and expressed the desire for his wife to have all his property if she survived him. The witness said: "I told him in my opinion the best thing to do was to make a will." At no time, however, during these conversations, according to this witness, did Mr. McGowan express any intention to make a will.
The propounder insists that this evidence was competent on the question of Mr. McGowan's mental capacity to make a will. There are two reasons why the evidence was not admissible: (1) Mr. McGowan never expressed any intention to make a will. "A statement of a decedent which cannot be conceived as referring to an instrument propounded as his will is not admissible upon any theory that it is a demonstration which reveals his intent to make a testamentary disposition by the instrument." *192 57 Am.Jur., Wills, section 896, page 591. See In re Ball's Will, 225 N.C. 91, 33 S.E.2d 619. (2) The mental capacity of W. H. McGowan was not challenged in the trial below.
Where the caveat to a will is duly filed and on the trial the sole question is whether the signature to the will is or is not the genuine signature of the purported testator, an exception to the exclusion of evidence on the ground that such evidence was admissible on some questions not considered or presented in the trial below, is without merit. In re Efird's Will, 195 N.C. 76, 141 S.E. 460. "A party is not permitted to try his case in the superior court on one theory and then ask the Supreme Court to hear it on another and different theory." Shipp v. United Stage Lines, 192 N.C. 475, 135 S.E. 339, 340; Warren v. Susman, 168 N.C. 457, 84 S.E. 760; Hendon v. North Carolina R. Co., 127 N.C. 110, 37 S.E. 155; Allen v. Wilmington & W. R. Co., 119 N.C. 710, 25 S.E. 787.
The propounder assigns as error the admission of opinion evidence as to the genuineness of the signature of W. H. McGowan, derived from comparison of his handwriting on the purported will with that appearing on various checks identified by witnesses as being in his genuine handwriting, without offering the checks in evidence.
Prior to the enactment of Chapter 52, Public Laws of 1913, CS 1784, now G.S. § 8-40, a qualified witness was permitted to make a comparison of a disputed writing with one whose genuineness was admitted or not denied. But no comparison was permissible when the proposed standard was itself disputed or evidence was required to establish its genuineness. Boyd v. Leatherwood, 165 N.C. 614, 81 S.E. 1025; Tunstall v. Cobb, 109 N.C. 316, 14 S.E. 28. And in those cases, where the comparison of handwriting was permissible under the law, a paper containing the admitted genuine signature was not required to be introduced in evidence to authorize its comparison by a qualified witness with a signature the genuineness of which was in issue. Abernethy v. Yount, 138 N.C. 337, 50 S.E. 696. We do not construe the statute G.S. § 8-40, which was enacted after the above decision was rendered, to change the rule in this respect The statute, however, did change the rule of evidence so as to permit the comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine, and to permit such writing and the evidence of witnesses respecting the same to be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute. But we do not construe the statute to prevent a comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine, unless such genuine writing is introduced in evidence. Abernethy v. Yount, supra; 32 C.J.S., Evidence, § 617(a), page 467.
It appears from the record that the attorneys for the propounder and the caveators, in their arguments to the jury, discussed what disposition would be made of the estate of W. H. McGowan in the event the will under consideration was declared invalid. Whereupon, the court in its charge to the jury stated that since there had been arguments on both sides about what would become of the estate of W. H. McGowan, in the event the will was held to be invalid, in order for the jury to know what the law says about that, and for that purpose only, the court would instruct the jury as to what the statute provided. Thereupon the court proceeded to read to the jury, G.S. § 28-149, subd. 3 of the Statute of Distribution, which is as follows: "If there is no child nor legal representative of a deceased child, then one-half of the estate shall be allotted to the widow, and the residue be distributed equally to every of the next of kin of the intestate, who are in equal degree, and to those who legally represent them." The court then said: "And, in addition thereto, the widow would be entitled to dower in real estate."
The propounder challenges this instruction on the following grounds: (1) That the jury was not informed that the Statute of Distribution applies only to personal property; (2) that the court failed to define *193 the meaning of the word "dower"; (3) that the charge as to the disposition of the estate, in the event the will was declared invalid, amounted to an intimation on the part of the judge that he felt the will should be set aside.
The question as to what disposition would be made of W. H. McGowan's estate, in the event his purported will was held to be invalid, was not a question for the consideration of the jury on the facts disclosed on this record, and the jury should have been so instructed. There was no unnatural disposition of the testator's property in the purported will, making such disposition a proper subject of comment. In re Burns' Will, 121 N.C. 336, 28 S.E. 519. However, we think the error now complained of falls under the category of invited error and will not be held as prejudicial on this record. Johnson v. Sidbury, 226 N.C. 345, 38 S.E.2d 82; Carruthers v. Atlantic & Y. R. Co., 218 N.C. 377, 11 S.E.2d 157; Kelly v. Durham Traction Co., 132 N.C. 368, 43 S.E. 923. Moreover, the grounds upon which the propounder challenges the instruction given are without merit.
The assignments of error Nos. 67, 70, 71, 72, 73, and 74 are directed to those portions of the charge containing the contentions of the caveators.
It is well settled that if the trial judge in charging the jury fails to state the contentions correctly, it is the duty of the aggrieved party to call such failure to his attention before the case is finally given to the jury so that it may be corrected. McIntosh, N.C. Procedure and Practice, section 580, page 642; Dickson v. Queen City Coach Co., 233 N.C. 167, 63 S.E.2d 297; Grayson Shipping Lines v. Young, 230 N.C. 80, 52 S.E.2d 12; State v. McNair, 226 N.C. 462, 38 S.E.2d 514; Switzerland Co. v. North Carolina State Highway & Public Works Comm., 216 N.C. 450, 5 S.E.2d 327; Hayes v. Ferguson, 206 N.C. 414, 174 S.E. 121; State v. Johnson, 193 N.C. 701, 138 S.E. 19; Walker v. Burt, 182 N.C. 325, 109 S.E. 43; Sears v. Atlantic Coast Line R. Co., 178 N.C. 285, 100 S.E. 433; Hardy v. Mitchell, 161 N.C. 351, 77 S.E. 225.
The remaining assignments of error, fifty-eight in number, have not been brought forward and argued in the brief and will, therefore, be taken as abandoned. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 563.
Upon a consideration of the entire record, in our opinion, no error of sufficient merit to warrant a new trial has been shown.
No error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3349732/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION MOTION TO SUSPEND VISITATION ORDER #138, DEFENDANT'S MOTION FOR CONTEMPT #140 DEFENDANT'S MOTION FOR CONTEMPT #141
Many of the facts that give rise to the above motions are not in dispute. The parties were married on September 19, 1981. There are two minor children: Mary Catherine Harrington born April 19, 1989 and Kenneth Charles Harrington born April 8, 1990. The marriage between the parties was dissolved on June 5, 1996. An agreement entered into between the parties dated June 5, 1996 was approved of and incorporated by reference. Prior to the dissolution of their marriage the defendant was a winner in the lottery. The separation agreement provided in part that the defendant was to pay during his life time in cash, to the plaintiff during her lifetime, periodic alimony in the sum of $25,000 per year until the year 2006. Said alimony is to be paid each November in the amount of $16,875.00 and the second installment to be paid in May in the amount of $8,125.00 The parties also agreed to share joint legal custody of the minor children with reasonable visitation to the defendant and physical custody and final decision making in the plaintiff The primary residence of the children was to be with the plaintiff. The reasonable rights of visitation for the defendant was to include but not be limited to:
a. Alternating weekends beginning on Friday at 6:00 p. m. and ending Sunday at 7:00 p. m.;
b. Each Tuesday from 4:00 p. m. to 7:00 p. m.;
c. Alternating weeks (weeks where the defendant will not have the children for the weekend) Friday from 4:00 p. m. to 7:30 p. m. or overnight;
g. The defendant was to also have visitation with the children from the last two weeks of July through the first two weeks of August.
CT Page 14682
The agreement also provided that the parties shall exert every reasonable effort to maintain free access and unhampered contact between the children and the parents. Neither party was do anything which may estrange the child from the other party, or act in such a way as to hamper the free and natural development of the child's love and respect for each parent.
On May 7th, 1997, pursuant to a motion coded #126, filed by the plaintiff, the matter of visitation of the minor children was referred to the Family Relations Division for mediation. The mediation was completed on June 5, 1997 and resulted in an agreement between the parties. The Agreement coded #128 provided as follows:
1. Visitation will rotate in the following way:
A. Weekend number one — The father will pick up both children at 4:00 p. m. and have them until Saturday at 9:00 a.m. when the mother will pick them up at the father's home.
B. Weekend number two — The father will pick up both children on Friday at 4:00 p. m. and the mother will pick them up on Sunday at the father's home at 6:45 p. m.
C. Weekend number three — Both children will stay with the mother for the entire weekend.
D. Weekend number four — the father will pick up both children at 4:00 p. m. on Friday and the mother will pick them up on Sunday at 6:45 p. m.
E. The father will have visitation every Tuesday when he will pick up both children at 4:00 p. m. and the mother will pick them up at 7:30 p. m.
F. After weekend number four is complete the cycle will begin again with weekend number one — perpetually.
G. On the week preceding weekend number three father will be entitled to a midweek visit when he will pick up both children at 4:00 p. m. and the mother will pick them up at 6:45 p. m. This midweek visit will be planned through mutual agreement no later than two weeks ahead of time.
2. Both parents will keep each other informed of all medical, CT Page 14683 school, psychological and emotional progress with each child.
3. For 1997 only, father will pick up the children on Thursday July 3, 1997 at 9:00 a.m. and mother will pick the children up at 9:00 a.m. on Saturday July 5, 1997.
4. All other visitation will be made through mutual agreement of both parties.
5. unless otherwise noted above the current holiday and vacation schedules will remain in effect.
On July 3, 1997 an order was entered enjoining the plaintiff from removing the minor children from the State of Connecticut until further order of the court. On July 8, 1997 an agreement was entered into by the parties coded #130 that was approved by the court and provided as follows:
1. Parties agree that the defendant will pick up the children on Friday, July 11th at 9:00 a.m. signifying the commencement of Mr. Harrington's summer visitation. Visitation is to end on Sunday, August 3rd at the Sturbridge Publick House at 6:00 p. m. Mother to enjoy visitation with the children commencing July 25, at 7:00 p. m. until Sunday July 27th at 6:00 p. m. Mother to pick up and drop off the children at the Huntington Woods Clubhouse.
2. Commencing August 3rd the children will be returned to the primary physical custody of the mother who is temporarily relocating to Massachusetts.
3. This matter shall be returned to Family Relations for a custody/visitation study.
4. The parties agree, until further court order, to the following visitation schedule:
a. The children will enjoy visitation with their father on every other weekend commencing August 15, 1997, Fridays at 7:00 p. m. until Sunday at 6:00 p. m. parties to meet at Sturbridge Publick House to transfer the children.
b. Father to have visitation with the children on Labor Day weekend ending Sept. 1st, Monday 6:00 p. m. and Columbus Day weekend ending on Monday at 6:00 p. m. CT Page 14684
5. The temporary injunction entered by the court on July 3rd
1997 is vacated by agreement.
Family Relations completed its report on December 15, 1997 and filed it on January 8, 1998. The Family Relations report that was completed on December 15, 1997 recommended that the parties share joint legal custody with final decision making with the mother. It also recommended that the father have visitation on alternate weekends as well as other extensive visitation. An order was entered on February 10, 1998 coded 132 that the case be referred back to Family Relations to review additional doctors reports to ascertain whether there should be any further recommendations.
Family Relations filed its report on April 13, 1998. On May 20, 1998 the parties entered into the following agreement that was approved of by the court on May 20, 1998:
1. Visitation shall be modified as follows:
a. Alternate weekends, from 5:00 p. m. Friday to 7:30 p. m. Sunday with plaintiff bringing children to defendant on said Fridays and defendant dropping off children to plaintiff on said Sundays;
b. Summer visitation of two weeks to defendant commencing the first full week the children are out of school, and two weeks to defendant at the beginning of August (being the first two full weeks);
c. Winter vacation with the plaintiff and spring vacation to the defendant; if there shall be an additional week, this extra vacation shall be alternated.
d. Easter, Memorial Day, 4th of July, Labor Day and Thanksgiving shall be alternated. defendant shall have Memorial Day in 1998, and the schedule shall alternate from that point.
e. For 1998, defendant shall have the children from 4:30 p. m. on Christmas Eve to 10:00 a.m. on Christmas morning. For 1999 plaintiff shall have children Christmas Eve through 10:00 a.m. Christmas Day. The defendant shall have children from 10:00 a.m. until 9:30 p. m. on Christmas Day. This shall be CT Page 14685 alternated thereafter.
f. All other visitation shall be by mutual agreement.
2. The defendant shall have phone contact with the children 3 times per week as arranged by parties, and the plaintiff shall have the same phone contact during the weekly blocks of visitation of the children with the defendant.
3. The support shall be by immediate wage execution, of $240 per week.
4. Uncovered and unreimbursed medical, dental, etc. costs for the minor children shall be shared 50%/50% by the parties as of 1/1/98.
5. Neither parent shall utilize corporal punishment as a means of discipline for the children.
The plaintiff filed a motion to suspend visitation order dated June 18, 1998 file stamped June 19, 1998 coded 138 that alleges as follows:
The plaintiff, in the above referenced action, respectfully represents as follows:
1. She was contacted by the Department of Children and Families because the children's pediatrician made a report to Department of Children and Families.
2. The basis of the report was a report by the child that the father had squeezed the child's arm, leaving a bruise which would not dissipate.
3. The plaintiff spoke to the Department of Children and Families case is still pending and that it will not be closed for at least thirty days if it is closed at all.
4. Under the circumstances the plaintiff feels that it is not in the children's best interest to continue visitation with their father, because of the pending Department of Children and Families allegations against him.
WHEREFORE, the plaintiff respectfully requests that the visitation be suspended until further order of the Court, and CT Page 14686 pending the resolution of the Department of Children and Families case.
The defendant filed a Motion for Contempt of Visitation Orders dated July 16, 1998, file stamped July 20, 1998 coded 140. That motion alleged that the plaintiff mother has intentionally, maliciously and without good cause denied the father any physical contact or visitation with the children since June 6, 1998. The defendant filed another motion for contempt of joint legal custody order dated July 16, 1998 file stamped July 20, 1998 alleging that the plaintiff had denied the defendant access to and visitation with the children and had denied him any physical contact with the children since June 6, 1998 so that the children have not only missed their regular visitation with the defendant but their summer vacation as well.
The parties entered into an agreement dated July 20, 1998 that was approved of by the court on July 20, 1998, coded #139. That agreement provides as follows
The parties hereby agree as follows:
1. Plaintiff's motion to suspend visitation (#138) and defendant's two Motions for Contempt (not numbered yet) shall be heard together at a future date to be assigned by the Court. Parties referred to caseflow for date (Stevens, J)
2. Counsel for the parties shall find a mutually agreeable date sufficiently prior to said hearing date for counsel for the defendant to take plaintiff's deposition.
3. To meet with Dr. Kenneth Wenning of Hamden for a family counseling session as soon as possible.
4. Until further order of this court or written agreement by the parties; Defendant shall have access to the parties two children, Mary (4/19/89) and Kenneth (8/08/90), every Saturday beginning July 25, 1998, from 11:00 a.m. through 7:00 p. m., such access occurring in the presence of Ms. J. Ahern of 6 Boylston Street, Newington. Plaintiff shall drop off and pick up children to and from Ms. Ahern's residence, unless otherwise agreed to by the parties. Mrs. Ahern's telephone number will be provided to plaintiff today.
5. These orders shall enter without prejudice. CT Page 14687
The defendant entered into the agreement of July 20, 1998 regarding supervised visitation in order to obtain some visitation with the children prior to the time the motion's filed by the parties could be heard.
On one occasion following the defendant's supervised visitation under the agreement coded #139 the children did not want to leave him to return to the plaintiff. Since July 20, 1998 the children have told the plaintiff that they missed seeing the defendant on a regular basis and enjoyed their overnight visitation with him and would like to have it resumed.
The plaintiff claims that on June 11, 1998 the minor child Mary told her that her arm hurt her and that the defendant had squeezed it. Mary was seen by Jillian Draper (a physician's assistant) on June 12, 1998. The plaintiff claims that the child's arm was swelling above the left elbow about the size of an egg and had bruises and redness. When Mary was examined by Jillian Draper on June 12, 1998 she had a faint bruise on her left inner arm approximately the size of 4 inches by one inch with very mild discoloration. The area was not tender to palpation. The child told Jillian Draper that defendant had grabbed her arm and squeezed it. The child told Jillian Draper that the defendant "squeezed so tight that I bruised". Jillian Draper then referred the matter to DCF. A DCF worker came to the plaintiffs residence on June 12, 1998 following notification by Jillian Draper. The DCF worker is trained to recognize child abuse and neglect. When contacted by Jillian Draper the defendant stated that he had not hit the child. Jillian Draper was under the opinion that the use of language by child that "I bruised" was not language of a child but rather was adult language. The bruise on the arm of the child could have occurred other than by squeezing. There were no finger prints seen in the area of the bruise. The child initially told the plaintiff that the bruise occurred when she was playing soccer. She later said that she was hit or punched by the defendant. She later stated that the defendant had squeezed her harm. The plaintiff did not inform Jillian Draper of those statements by the child. The plaintiff claims that when she discussed the matter with Mary on June 11, 1998 that after touching Mary's harm gently, Mary flinched. The court finds that claim is not credible. After the DCF worker left the plaintiff's residence at approximately 5:30 p. m. on Friday, June 12, 1998 the plaintiff called the defendant and told him that he would not be allowed his visitation that weekend because CT Page 14688 DCF was doing an investigation regarding the bruise to Mary's harm. The defendant informed her that he had not hit Mary. Mary was in school between June 1, 1998 and June 11, 1998 and participated in school activities. There were no calls from any school personnel regarding the bruise to Mary's harm. The court finds that the defendant did not cause the bruise to Mary's harm and did not squeeze her harm. The court finds that there was no reasonable basis for the plaintiff to believe that the bruise on Mary's harm was as result of any activity by the defendant.
By letter dated June 19, 1998 counsel for the plaintiff wrote to counsel for the defendant as follows:
Dear Attorney Switko:
The children's pediatrician called DCF because of a report by the child that Mr. Harrington squeezed her harm, leaving a sizeable bruise which did not dissipate.
Ms. Pastore spoke with DCF this morning concerning the upcoming 2 week visit which Mr. Harrington was to commence shortly. DCF informed her that her case was pending and would not be closed for at least 30 days-if it is closed at all.
Under the circumstances, I have advised Ms. Pastore that she is not to permit visitation with Mr. Harrington unless and until the DCF report exonerates him. She simply cannot take the chance that DCF finds, her to be negligent in permitting the children to visit with their father under the circumstances.
I realize that this will be very disappointing to Mr. Harrington, especially over Father's Day. I'm sorry about that, but simply cannot advise her to allow visitation with DCF's file pending.
Please let your client know about this situation as soon as possible so there is no misunderstanding.
Very truly yours, Diana L. Mercer cc: Helen Pastore
After investigating the matter DCF closed the file with the only recommendation that the defendant seek parenting classes. CT Page 14689 The decision by DCF to close its file regarding the alleged June 11, 1998 incident occurred prior to the time this court commenced hearing the evidence on the plaintiff's motion to suspend visitation coded #138 and the defendant's two motions for contempt coded #140 and #141. The plaintiff's motion to suspend visitation dated June 18 1998 and coded #138 was based solely on the fact that the DCF investigation was pending and the plaintiff in her claim for relief requests that the visitation be suspended until further order of, the court, and pending the resolution of the Department of Children and Families case. A pending investigation by DCF is not in an of itself sufficient grounds to violate a court order regarding visitation. Faced with the fact that the Department of Children and Families have closed their investigation the plaintiff sought to justify her continuing request that the defendant's visitation be supervised and that she was not in contempt of court by raising claims of prior conduct of the defendant. Those claims were as follows:
The plaintiff claims that when she and the defendant were both being treated at Atlantic Health that the defendant admitted having spanked Kenneth on his bare bottom in 1995. The plaintiff was being treated at Atlantic Health for stress regarding her protracted divorce from the defendant as well as for feeling tired and anxious. She is not under treatment at the present time. The defendant was being treated for depression and anxiety. The plaintiff also claims that the minor child Kenneth also informed her of the bare bottom spanking by the defendant. During the plaintiff's deposition on August 13, 1998 she testified that the children did not report to her any spankings. The court finds that her claim that the defendant and the child Kenneth told her of a spanking by the defendant is not credible.
The defendant arrived at the plaintiff's residence on May 9, 1997 to exercise his visitation. The visitation order in place on that day was for the defendant to have visitation on Friday from 4:00 p. m. to 7:30 p. m. or overnight. It was the usual practice of the plaintiff and the defendant as of May 7 1997 for the defendant to keep the children overnight on Friday evenings. The defendant became upset when the plaintiff was not willing to allow him to have overnight visitation with the minor child Kenneth. The defendant grabbed the, minor child Kenneth by his arm. The minor child Kenneth was climbing and engaged in other activities immediately following this incident. The following day he was playing baseball and did not complain of any problems with his arm or shoulder. On Wednesday the was at baseball practice CT Page 14690 and was not having any problem with his arm or shoulder. The child Kenneth later told the defendant that the defendant had hurt his arm. When the defendant inquired when it had occurred the told the defendant that the plaintiff had told him that the defendant had hurt his arm in the May 9, 1997 incident. The court finds that the May 9, 1997 incident did not cause any injury to Kenneth and does not form any reasonable basis to require that the defendant's visitation with the children be supervised.
The plaintiff brought the minor child Mary to the office of Dr. Wenning on February 1998 where Mary complained that the defendant had hit her repeatedly on various parts of her body. When Dr. Wenning spoke to Mary on February 5, 1998 she stated that the defendant had hit her on her back, stomach, arms, legs and head in recent months since December 1997. After Mary was seen by Dr. Wenning on February 5, 1998 the contacted DCF in the plaintiff's presence. He related to DCF that Mary had stated to him that she had been hit, by, the defendant on various parts of her body. He was told by DCF that the did not have to file a report. If Dr. Wenning had felt that the defendant had hit the child the would of filed a report and would of told that to Family Relations and would have told Family relations to contact DCF. Mary loves the defendant and wants to spend more time seeing him. Dr. Wenning was seeing Mary in part as a result of the child feeling sad. The plaintiff informed Family Relations that Mary had related to the plaintiff that the defendant had struck Mary many times on many parts of her body. Mary claimed that the plaintiff had hit her and that her Stepfather and brother had hit her. During the period between January 1998 and May 1998 there were no marks or bruises seen on Mary by Dr. Wenning. Dr. Wenning had not told Family Relations or DCF that the had concerns regarding Mary spending time with the defendant. He would have told DCF and Family Relations if the believed that there was risk to Mary from visiting with the defendant. The never told the plaintiff that the defendant should not see the children. As of July 19, 1998 the did not have any concerns regarding the defendant having visitation with the children. The defendant denied having struck Mary on various parts of the body to Dr. Wenning. The court finds that the defendant did not strike the minor child Mary on various parts of her body. The court finds that there was no reasonable basis for the plaintiff to believe that the defendant had in fact hit Mary on various parts of Mary's body.
There was one incident in approximately March of 1998 when CT Page 14691 the minor child Mary as with the defendant and was trying to tie her sneaker. The defendant grabbed her by the leg and pulled her to him to tie her sneaker. There was no mark left on the child's body a result of that incident. The defendant did not strike Mary as part of that incident.
The defendant was not allowed to exercise his weekend visitation with the children on the weekend of June 12, 1998 and did not have any visitation from June 12, 1998 until July 20 1998. The plaintiff did not bring the children to the defendant's residence in accordance with the May 20 1998 court order from June 12, 1998 through July 20, 1998.
The court finds that neither the alleged 1995 bare bottom spanking, nor the Friday May 9, 1997 visitation incident, nor the claims made to Dr. Wenning on February 5, 1998, nor the shoe tying incident of March 1998 nor the claim of the bruise to Mary's arm on June 11, 1998 formed a reasonable basis individually or collectively for the plaintiff to deny the defendant his visitation. From all the evidence presented this court finds that the plaintiff is willful violation of the court order dated May 20 1998 in that she has refused to allow the defendant his alternating weekend visitation commencing June 12, 1998 and has not allowed the defendant his two week summer visitation and did not bring the children to the defendant's residence in accordance with the May 20, 199 order.
The parties are in dispute on the issue of attorneys fees concerning contempt. The defendant seeks attorney's fees in the amount of $19,003.00. The plaintiff seeks attorneys fees in the amount of $15,315 00. The court enters the following orders:
1. The court grants the defendant's motion for contempt coded #140 and the defendant's motion for contempt coded #141.
2. The court allows attorneys fees to counsel for the defendant in the amount of 15,315.00. These attorneys fees are to paid in full from the lottery payment of the plaintiff being held in escrow by counsel for the defendant. The payment is to be made on December 29, 1998.
3. The plaintiff's motion to suspend visitation coded #138 is denied.
4. The agreement entered into between the parties dated July CT Page 14692 20, 1998 coded 139 is vacated.
5. The visitation order entered on May 20, 1998 is reinstated.
6. The defendant is granted the following additional visitation:
a. The full period of time that the children are on vacation from school in December 1998 until school resumes in January 1999.
b. Three additional weeks of summer vacation in the summer of 1999.
c. one additional weekend per month for the months of January 1999 through May, 1999.
7. The defendant's lottery payment being held in escrow by counsel for the defendant is ordered released as of December 29, 1998.
Sidney Axelrod Judge of the Superior Court | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2260859/ | 240 P.3d 980 (2010)
STATE of Kansas, Appellee,
v.
Steve R. BABER, Appellant.
No. 102,804.
Court of Appeals of Kansas.
October 8, 2010.
*982 Theresa L. Barr, of Kansas Appellate Defender Office, for appellant.
Natalie Chalmers, assistant district attorney, Chadwick J. Taylor, district attorney, and Steve Six, attorney general, for appellee.
Before MALONE, P.J., PIERRON, J., and BUKATY, S.J.
PIERRON, J.
Steve R. Baber pled no contest to aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(2)(A), a severity level 4 person felony, and aggravated indecent solicitation of a child in violation of K.S.A. 21-3511(a), a severity level 5 person felony.
Baber filed a motion for a dispositional departure and to enforce a plea agreement. He alleged that as part of a plea agreement the State originally agreed to recommend a postrelease supervision term of 36 months but subsequently insisted that lifetime postrelease supervision was mandatory pursuant to K.S.A. 22-3717(d)(1)(G). Baber acknowledged the statute requires that individuals convicted of his offenses be subject to lifetime postrelease supervision, but he maintained that a 36-month postrelease supervision period was also specifically authorized under K.S.A. 22-3717(d)(1)(A). Finally, Baber argued that lifetime postrelease supervision constitutes cruel and unusual punishment under the United States and Kansas Constitutions.
During sentencing, Baber argued that K.S.A. 22-3717(d)(1) is unconstitutional because more serious crimes in Kansas carry less than a lifetime postrelease supervision term. The district court found it is a legislative function to determine the severity of a crime and concluded, "Based on what I have in front of me, counsel, I am going to find that the statutes are constitutional."
Baber was sentenced to 41 months in prison for aggravated indecent liberties and 32 months for aggravated indecent solicitation, the sentences to run consecutive to one another. Finding it had no authority to deviate from K.S.A. 22-3717(d)(1)(G), the district court imposed lifetime postrelease supervision on both counts.
Baber appeals. We affirm.
Baber first contends that his lifetime postrelease supervision term violates the cruel and unusual punishment prohibitions in the Eighth Amendment to the United States Constitution and Section 9 of the Kansas Constitution because more serious offenses in Kansas carry a lesser postrelease supervision term. He does not divide his analysis between the two provisions, nor does he specifically challenge the statute. However, the sentence he is attacking is prescribed by K.S.A. 22-3717(d)(1)(G), and an attack on the sentence is necessarily an attack on the statute.
The constitutionality of a sentencing statute presents a question of law over which this court exercises unlimited review. State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 (2007). "A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so." Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629, 176 P.3d 938 (2008).
K.S.A. 22-3717(d)(1)(G) provides that an individual convicted of a sexually violent crime committed on or after July 1, 2006, who is released from prison "shall be released to a mandatory period of postrelease supervision for the duration of the person's natural life." Included in the definition of sexually violent crimes are aggravated indecent liberties with a child and aggravated indecent solicitation of a child. K.S.A. 22-3717(d)(1)(G)(2)(C), (G). It is this postrelease supervision term with which Baber takes issue.
"Punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." State v. *983 Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). In other words, imposing a postrelease supervision term in and of itself is not a cruel and unusual method of punishment, but it may be constitutionally impermissible if applied in a disproportionate fashion. In Baber's case, he claims the length of the supervision renders the sentence unconstitutional.
The Freeman court set out a three-part test to help in administering the principle set forth above:
"In determining whether the length of a sentence offends the constitutional prohibition against cruel punishment three techniques should be considered:
"(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
"(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
"(3) A comparison of the penalty with punishments in other jurisdictions for the same offense." 223 Kan. at 367, 574 P.2d 950.
It should be noted that use of these factors is in disfavor if analyzing any aspect of a criminal sentence other than its length. See State v. Kleypas, 272 Kan. 894, 1031-33, 40 P.3d 139 (2001), cert denied 537 U.S. 834, 123 S. Ct. 144, 154 L. Ed. 2d 53 (2002).
The Freeman factors include both legal and factual inquiries, and no single factor controls the outcome. State v. Mondragon, 289 Kan. 1158, 1163, 220 P.3d 369 (2009). "Ultimately, one consideration may weigh so heavy that it directs the final conclusion," but "consideration should be given to each prong of the test." State v. Ortega-Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 (2008). Particularly where the focus of an argument is proportionality, "the factual aspects are a necessary part of the overall analysis." 287 Kan. at 161, 194 P.3d 1195.
Baber has failed to rebut the presumption that K.S.A. 22-3717(d)(1) is constitutionally valid. Relying exclusively, by his own admission, on the second Freeman factor, he argues that a lifetime postrelease supervision sentence is disproportionate to other sentences in Kansas. He provides the example of second-degree murder, which, with Baber's criminal history score, would carry a presumptive sentence of XXX-XXX-XXX months in prison, significantly more than the presumptive sentence for the crimes of which he was convicted. However, he points, out, the postrelease supervision term would only have been 36 months. See K.S.A. 21-4704(a); K.S.A. 22-3717(d)(1)(A).
The fact that a murder conviction carries a shorter postrelease supervision term does not by itself affect the sentencing statute's validity. Baber puts forth no argument as to why the legislature should not be permitted to require individuals convicted of sex crimes to remain under supervision longer than those convicted of murder. While the second prong of the Freeman analysis may render this arrangement suspect in isolation, it is not sufficient on its own to invalidate the statute. It might be argued that due to the nature of the crime here, lifetime supervision might well be advisable.
Baber presents no arguments or evidence regarding the other two Freeman factors. Although one consideration may weigh so heavily as to dictate the final result, consideration is to be given to each prong of the Freeman test. Here, the first prong is completely ignored. Baber briefly mentioned in his motion for a departure sentence that he was a 37-year-old male with no prior criminal history, but he abandoned that argument during sentencing and on appeal. It is impossible to determine anything about Baber's character because no evidence was presented in the context of the constitutional challenge. The third Freeman prong was considered only to the extent that Baber informed the district court that his limited research uncovered laws in other jurisdictions that are both *984 less harsh and more severe than Kansas, so he did not "think there was anything compelling that would be helpful to the court."
Essentially, Baber seeks to have K.S.A. 22-3717(d)(1)(G) struck down on the basis of his one point involving murder sentences.
Baber seems to acknowledge the paucity of his evidence when he argues in the alternative that "if the Court determines that an analysis of only the second prong of the Freeman factors is inadequate to make a constitutional finding," the case should be remanded for further findings regarding the other prongs. In so arguing, Baber relies on State v. Seward, 289 Kan. 715, 217 P.3d 443 (2009). There, the Supreme Court had to determine whether Seward had preserved his constitutional challenges to K.S.A. 21-4643 for appeal. The court found that the challenges were not a surprise to the State since they were mentioned and raised at one point in the district court and the judge merely failed to rule upon them. 289 Kan. at 718, 217 P.3d 443. The court also noted that counsel failed to move the district court pursuant to Supreme Court Rule 165 (2009 Kan. Ct. R. Annot. 239) for further findings, but considering various circumstances present in the case, the court was willing to remand for further findings. 289 Kan. at 718-19, 721, 217 P.3d 443. The court stated:
"We emphasize that we believe this case to be exceptional. In the future, a defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing statute must ensure the findings and conclusions by the district judge are sufficient to support appellate argument, by filing of a motion invoking the judge's duty under Rule 165, if necessary." 289 Kan. at 721, 217 P.3d 443.
Seward is not helpful to Baber. Rule 165 requires a judge, in all contested matters, to state the controlling facts and legal principles. 2009 Kan. Ct. R. Annot. 239. A litigant who fails to object to inadequate Rule 165 findings and conclusions may not make an argument on appeal that would depend upon what is missing. Seward, 289 Kan. at 720-21, 217 P.3d 443.
The present case does not involve inadequate findings and conclusions by the district court. Indeed, the court made findings regarding all the evidence offered by Baber. Rather, this is a case involving inadequate evidence. Baber offered the court very little on which to make any findings or to base a finding of unconstitutionality. What Baber really wants is another chance to prove his case to the district court. That is not the purpose of a remand. There is nothing exceptional in the manner of Seward that would require this court to remand this issue.
We also note we have no idea what evidence, if any, Baber might be able to present in support of his position.
Having a statute declared unconstitutional is not meant to be an easy task. The legislature is presumed to have acted constitutionally, and Baber has failed to come forward with any evidence that it did otherwise in this case. The district court is affirmed.
Baber next claims that the district court possessed the discretion to sentence him to a shorter postrelease supervision term under a different statute. This claim requires interpretation of a statute, which is a question of law over which this court exercises unlimited review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008).
Baber was convicted of violating K.S.A. 21-3504(a)(2)(A), a severity level 4 crime. K.S.A. 22-3717(d)(1)(A) provides that an individual sentenced for a nondrug severity level 1 through 4 crime must serve 36 months on postrelease supervision. This section does not exempt the offenses listed in K.S.A. 22-3717(d)(1)(G). Baber asserts that the district court possessed the discretion to sentence him under either statute. In support, he argues that, where statutes authorize two different sentences for a given offense, a sentence imposed under either statute is legal.
Baber's claim is without merit. The law is clear that a specific provision within a statute controls over a more general provision within the statute. See In re K.M.H., 285 Kan. 53, 82, 169 P.3d 1025 (2007), cert. denied ___ U.S. ___, 129 S. Ct. 36, 172 L. Ed. 2d 239 (2008). K.S.A. 22-3717(d)(1)(G) expressly addresses the postrelease supervision *985 term to be imposed upon sexually violent offenders. The statute also expressly defines those offenses that require this supervision term, including those of which Baber was convicted. The district court did not have the discretion to ignore this statute and choose to sentence Baber under another statute.
This lack of discretion on the part of the district court was addressed in State v. Ballard, 289 Kan. 1000, 218 P.3d 432 (2009), which rejected the very point Baber now raises. Ballard pled no contest to aggravated indecent liberties with a child and received as part of his downward durational departure sentence a postrelease supervision term of 36 months. The State argued that a lifetime postrelease supervision term is still required even when a defendant receives a departure sentence. The district court agreed and increased the postrelease supervision term to lifetime.
On appeal, Ballard argued that the original sentence was legal and the district court did not have jurisdiction to increase it later. Ballard argued that he could legally be sentenced under either K.S.A.2006 Supp. 22-3717(d)(1)(A) or (d)(1)(G). The court disagreed and proclaimed his sentence illegal because it was not pursuant to K.S.A.2006 Supp. 22-3717(d)(1)(G). 289 Kan. at 1012, 218 P.3d 432.
Ballard controls. Where a defendant is subject to K.S.A. 22-3717(d)(1)(G), he or she is to be sentenced under that subsection. Any other sentence imposed is illegal.
Finally, as the State correctly points out, there is a problem with the authority Baber cites to support his contention that if there are two different sentences for a given offense, a sentence imposed under either statute is legal. State v. McCoin, 278 Kan. 465, 101 P.3d 1204 (2004), involved a McAdam issue, involving two different offenses, with identical elements in certain situations, that imposed two different sentences. The court held that the imposition of the sentence authorized by the charge did not make the sentence illegal. 278 Kan. at 468, 101 P.3d 1204. McCoin is not factually analogous to the present case and does not help Baber.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260893/ | 225 P.3d 880 (2010)
IN RE D.D.
No. 20090881.
Supreme Court of Utah.
January 20, 2010.
Petition for certiorari denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/772859/ | 246 F.3d 1036 (7th Cir. 2001)
PATRICIA OUSKA, Petitioner-Appellant,v.LYNN CAHILL-MASCHING,1 Respondent-Appellee.
No. 99-2354
In the United States Court of Appeals For the Seventh Circuit
Argued September 26, 2000.Decided April 12, 2001.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 C 3363--William T. Hart, Judge.[Copyrighted Material Omitted]
Before COFFEY, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge.
1
Patricia Ouska was charged with the armed robbery and murder of Beeland Te on May 7, 1992, and was tried before an Illinois jury. Ms. Ouska was found guilty of those charges and was sentenced to life imprisonment without parole by the trial court. The Appellate Court of Illinois affirmed Ms. Ouska's conviction, and the Illinois Supreme Court denied her leave to appeal. Ms. Ouska then filed a petition for a writ of habeas corpus in the district court; she asserted that, during her trial, the prosecution (1) used her pre-arrest silence as substantive evidence of her guilt in violation of the Fifth Amendment and (2) used her post-arrest silence against her in violation of the Due Process Clause of the Fourteenth Amendment. She also claimed that her trial counsel's failure to object to these violations deprived her of the effective assistance of counsel guaranteed by the Sixth Amendment. The district court denied Ms. Ouska's petition in its entirety. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
2
* BACKGROUND
A. Facts
3
On May 7, 1992, between 9:00 and 10:00 a.m., Beeland "Rosa" Te was stabbed to death in the convenience store that she ran on West 18th Street in Chicago. Te sold a number of different items in the store, including toys, candy and lottery tickets. In order to help her customers more easily fill out their lottery slips, Te kept a number of small pencils available in the store for that purpose. She also kept a medal of Saint Benedict in her cash register, a gift from her sister that had been purchased in the Philippines. Te had experienced health problems in the past, and, due to a double mastectomy, she wore silicone gel implants in her prosthesis.
4
Ms. Ouska and her twenty-two-month-old child lived with Ms. Ouska's former foster mother, Ruby Fontenot, only a two or three minute walk from Te's store. Fontenot, who knew Te and often stopped in her store, testified that she discovered that Ms. Ouska had borrowed money from Te and had not yet repaid that loan. Fontenot prodded Ms. Ouska to find the money to repay this debt, and on the morning of the murder Ms. Ouska left Fontenot's home between 9:15 and 9:20 a.m. with her daughter in order to obtain those funds.
5
At some point before 10:00 a.m. that morning, Ms. Ouska rang the doorbell of Erma Gonzalez, who lives approximately two blocks away from the Fontenot home. Ms. Ouska was bleeding from her leg and told Gonzalez that a Mexican man had tried to rob her on the street and had stabbed her with a screwdriver. Gonzalez refused Ms. Ouska's request to allow her to clean her wound in Gonzalez's apartment, and so Ms. Ouska returned to the Fontenot home. When she arrived there, she encountered Patricia Rutledge, a babysitter working for Fontenot that morning. Rutledge noticed that Ms. Ouska kept her right hand in her pocket and that her leg was cut. While Ms. Ouska went to her room, Rutledge dialed 911, and paramedics soon arrived to take Ms. Ouska to the hospital.
6
At about the same time that morning, Te's body was discovered at her store; she had been stabbed forty-two times and had eight superficial cutting wounds. The cash register was open and contained no money. Additionally, there were no signs of forced entry to the door separating the customer area of the store from the store's rear portion, where Te's body was found.2 Te normally kept that door closed and locked. In that rear portion of the store was a bathroom, where investigators found a bloody rag in the sink.
7
Later that afternoon, Fontenot and her daughter Vickie found two blood-stained one-dollar bills on Ms. Ouska's dresser, along with a printout of winning lottery numbers from a previous date. The next morning, on May 8, 1992, while Ms. Ouska was still at Illinois Masonic Medical Center recovering from her stab wound, Rutledge was again babysitting Fontenot's grandchildren and Ms. Ouska's daughter at the Fontenot home. Suspicious about the events of the previous day, Rutledge entered Ms. Ouska's room and looked under her mattress, where she found a bloody knife. Fontenot later testified that she recognized that knife as one that Ms. Ouska had shown her while the two were in Ms. Ouska's room only a few weeks before.
8
During that same morning, Ms. Ouska made repeated phone calls from the hospital to a neighbor, Lenoir Sanchez. Ms. Ouska ultimately asked Sanchez to get something for her from under Ms. Ouska's mattress in the Fontenot home, which was located next door to Sanchez's apartment. Sanchez testified that Ms. Ouska was not specific as to the nature of the item that Sanchez was supposed to retrieve from under the mattress. Both Sanchez and Tommy Gonzalez, Sanchez's boyfriend and the brother of Ms. Ouska's boyfriend, each made separate attempts to retrieve this unknown item from the Fontenot home that morning. Each time, Rutledge, who had already found the knife under Ms. Ouska's mattress, would not allow them entry into the Fontenot home. Soon after, the knife was placed in a plastic bag, and the police were called to the scene.
9
When the police arrived and learned that the knife had been found in Ms. Ouska's room, Detective Michael Shields was dispatched to speak with her regarding the Te murder (Detective Shields and a partner had spoken with Ms. Ouska at the hospital on the previous morning about the details of Ms. Ouska's stabbing). When Detective Shields arrived at the Illinois Masonic Medical Center, Ms. Ouska was about to be released, and she agreed to accompany the detective to the police station. Ms. Ouska was told that she was to look at possible mug shots of her assailant; instead, once at the station, Detective Shields began asking questions relating to Te's murder. At this point, Ms. Ouska immediately stated that she did not wish to speak to the detective any further, indicated that she wished to speak with her attorney and later left the police station. At no time during this questioning was Ms. Ouska placed under arrest, nor was she given Miranda warnings. Additionally, Ms. Ouska had a bag of clothing with her as she left the hospital that she brought with her to the police station. Upon leaving the station, she did not take this bag with her. Detective Shields, who had noticed blood on some of the clothing in the bag, inventoried the bag and its contents and sent it to a crime laboratory.3 Inside that bag, the police later found a blood-stained jacket and in its pockets found $87 in one- and five-dollar bills, a St. Benedict medal and a small green pencil.
10
Analysis later revealed that the blood on the knife was consistent with Te's blood and that the knife contained silicon and fibers matching that of Te's prosthesis and clothing, respectively. Testing of the blood found on the two one-dollar bills that Fontenot and her daughter discovered on Ms. Ouska's dresser showed that it was consistent with the protein and enzyme classifications of Te's blood. Additionally, tests on the blood from Ms. Ouska's jacket and from the money located in the jacket were consistent with the protein and enzyme classifications of Te's blood. Blood that had been found in the front room of Te's store was determined to be consistent with Ms. Ouska's blood type, and blood consistent with Ms. Ouska's blood enzyme and protein type was found on the rag recovered from the bathroom sink in the rear of the store. A warrant was then issued for Ms. Ouska's arrest. Six days later, on May 28, 1992, she appeared at a police station and was arrested.
B. Earlier Proceedings
1.
11
During her jury trial, Ms. Ouska testified that she had entered Te's store on the morning of the murder and saw Fontenot's son-in-law, Salvador Martinez, repeatedly stabbing the victim. Ms. Ouska had, to this point, never told this story to the police or any judicial officer. She maintained that when she told Martinez to stop, he knocked her to the ground, stabbed her in the leg with the knife and threatened that if she told anyone about his crime, he would hurt Ms. Ouska and her child. Ms. Ouska also testified that the knife belonged to Martinez and not to her. After Martinez ran from the store, Ms. Ouska claimed that she quickly pulled the knife out of her leg and put it in the pocket of a sweatshirt that she was wearing. She also maintained that she never entered the rear portion of the store, the area where Te was killed.
12
Ms. Ouska also provided her version of a number of key points in the sequence of events after the murder. She testified that when she had arrived at Erma Gonzalez's house just after the stabbing, she told Gonzalez that she had been stabbed with a screwdriver because, until she returned to her home, she was unsure of the nature of the object that she had been stabbed with and believed that it could have been a screwdriver. She also explained that she had stated falsely that a Hispanic man had stabbed her on the street because she was afraid that, if she told the truth, Martinez would endanger her and her child. Lastly, Ms. Ouska maintained that when she called Lenoir Sanchez's apartment on the morning after the murder, she asked Sanchez to retrieve health insurance information from under her mattress, not the knife involved in the murder.
13
Prior to Ms. Ouska's testimony, the prosecution called Detective Shields to the stand in its case-in-chief. It elicited from him the fact that Ms. Ouska had remained silent when the detective had asked her questions regarding the murder at the police station. He characterized Ms. Ouska's behavior at that time as "uncooperative." R.7-8 at 16C.
14
Later, on cross-examination of Ms. Ouska, the prosecution again engaged in the following line of questioning regarding Ms. Ouska's pre-arrest, pre-Miranda silence:
15
[State] And you didn't tell Det. Shields on the [ ]8th at Illinois Masonic Medical Center that Salvador Martinez committed the crime?
16
A: [Ms. Ouska] No.
17
Q: You didn't ask for witness protection because you had just seen this woman brutally murdered?
18
A: No.
19
Q: When you went to the police station . . . at Area 4 Violent Crimes . . . [y]ou didn't tell Det. Shields or Pavon at that time that Salvador Martinez had committed the crime?
20
A: No. R.7-3 at D-233-234. Additionally, the prosecution also referenced Ms. Ouska's actions after her arrest:
21
Q: [State] You went to bond court; right?
22
A: [Ms. Ouska] Correct.
23
Q: And you appeared before a judge?
24
A: Correct.
25
Q: Did you tell the judge at that time that you were innocent and Salvador Martinez had committed the murder?A: No, I did not.
26
Q: Did you tell the Assistant State's Attorney who was there that you were innocent and Salvador Martinez committed murder?
27
A: No, I did not.
28
. . . . .
29
Q: So then you come into Judge Reyna's courtroom; right?
30
A: Yes.
31
Q: And the case has been pending within this courtroom for approximately two-and-a-half years?
32
A: Correct.
33
. . . . .
34
Q: As a matter of fact you decided you would wait until your day of trial?
35
A: No. I did tell a couple of people.
36
Q: Well I am just telling you you decided you would wait until your day of trial and reveal in a public courtroom where Salvador Martinez could walk right in here, you decide you would wait until then and tell the ladies and gentlemen of the jury that you were innocent and Salvador Martinez committed murder?
37
A: Yes.
38
Id. at D-235-237. Later, in closing argument, the prosecution again made reference to Ms. Ouska's silence regarding her claim that it was Martinez who had murdered Te.4 Ms. Ouska's trial counsel did not object to any of this questioning by the prosecution, with the exception of the remarks in closing argument; even there, counsel only objected on the ground that the assertion was not supported by the evidence. That objection was overruled by the trial court. Ultimately, Ms. Ouska was found guilty of first-degree murder and armed robbery and sentenced to life imprisonment.
2.
39
In its review of Ms. Ouska's conviction, the Appellate Court of Illinois first determined that the prosecution's comments during cross- examination regarding Ms. Ouska's pre-arrest silence did not run afoul of the Constitution. It explained only that it found "no error" because those comments addressed events occurring before Ms. Ouska was in custody and during a time when she understood that her participation was voluntary. R.1, Ex.A at 8. The court did not mention the prosecution's reference to Ms. Ouska's pre-arrest silence during its case-in- chief as part of its questioning of Detective Shields.
40
The court next addressed the prosecution's references to Ms. Ouska's post-arrest silence during cross-examination and in closing argument. The court noted that Ms. Ouska did not object to these comments during trial and that this "generally constitutes a waiver of any improprieties." Id. at 9. The court then examined the issue for plain error and ruled that the use of the post-arrest silence did not adversely affect Ms. Ouska's right to a fair trial because a substantial amount of evidence existed to connect her to the commission of the crime.
41
The court also ruled that Ms. Ouska could not make out a claim of ineffective assistance of counsel on the ground that her trial counsel failed to object to the improper use of her silence. It held that Ms. Ouska could not show that, under the second part of the test articulated in Strickland v. Washington, 466 U.S. 668 (1984), but for her counsel's failure there was a reasonable probability that the result of the trial would have been different.
42
After finding no other defects with Ms. Ouska's trial, the Appellate Court affirmed her convictions and her sentence. The Illinois Supreme Court later denied leave to appeal that decision.
3.
43
Ms. Ouska then filed a petition for a writ of habeas corpus in the district court under 28 U.S.C. sec. 2254. The district court first addressed the use of Ms. Ouska's pre-arrest silence. It noted that a defendant's Fifth Amendment rights are not violated by the use of pre-arrest silence to impeach a defendant's credibility, and that, because Ms. Ouska ultimately took the stand and testified in her own behalf, the prosecution had used her pre- arrest silence to impeach her credibility and not to establish her guilt.5
44
The district court, however, also found that the prosecution had made reference to Ms. Ouska's post-arrest silence in violation of her due process rights. See Doyle v. Ohio, 426 U.S. 610 (1976). Nevertheless, it noted that, even if that issue had been preserved for appeal, any error was harmless under the standard of review applicable to habeas corpus petitions set forth in Brecht v. Abrahamson, 507 U.S. 619 (1992). In light of the large amount of evidence suggesting that Ms. Ouska had committed the crimes in question, and her shifting stories regarding her version of events, the use of her post-arrest silence did not have a substantial and injurious effect or influence on the jury's verdict.
45
Lastly, the district court found meritless Ms. Ouska's claim that her trial counsel's failure to object to the use of her silence constituted ineffective assistance of counsel under the Sixth Amendment. Like the Illinois Appellate Court, the district court held that Ms. Ouska could not meet the second prong of the Strickland test; she could not demonstrate that the outcome of her trial would have been different if trial counsel had objected to the references to her silence.
46
As a result, the district court denied Ms. Ouska's petition for a writ of habeas corpus. Ms. Ouska then applied to the district court for a certificate of appealability, but the court declined to grant one. Subsequently, a judge of this court granted a certificate limited to two issues: (1) whether the prosecution's use of Ms. Ouska's post-arrest silence violated her due process rights and (2) whether her trial counsel rendered constitutionally ineffective assistance of counsel by failing to object to the prosecution's use of her post-arrest silence.
II
DISCUSSION
47
Ms. Ouska now seeks review of the three claimed errors that she presented to the district court. First, she asks that we amend her certificate of appealability and review the district court's holding that the prosecution did not infringe on her Fifth Amendment privilege against self- incrimination by commenting on her pre-arrest, pre-Miranda silence. Ms. Ouska claims that the reference to her pre-arrest silence in the prosecution's case-in-chief, during the testimony of Detective Shields in advance of her own testimony, was an unconstitutional attempt to draw an inference of guilt. Next, she maintains that the use of her post-arrest silence was not only constitutional error, but that the error significantly prejudiced her case and therefore cannot be considered harmless. Lastly, Ms. Ouska contends that her trial attorney's failure to object to these prosecutorial references constituted ineffective assistance of counsel and excuses any procedural default that may have occurred.
A. Applicable Standards of Review
48
In an appeal from a ruling on a petition for habeas relief, we review a district court's findings of fact for clear error and its rulings on issues of law de novo. See Foster v. Schomig, 223 F.3d 626, 634 (7th Cir. 2000), cert. denied, Foster v. Neal, U.S.,121 S.Ct.1407, L.Ed.2d(2001); Gardner v. Barnett, 199 F.3d 915, 918 (7th Cir. 1999) (en banc), cert. denied, Gardner v. Neal, 529 U.S. 1079 (2000). Additionally, because the habeas petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the standard of review contained in that Act governs Ms. Ouska's claims. See Lindh v. Murphy, 521 U.S. 320, 322-23 (1997); Braun v. Powell, 227 F.3d 908, 916 (7th Cir. 2000), cert. denied, 121 S. Ct. 1164 (2001). After AEDPA, the federal habeas statute allows us to grant habeas relief only if the state court's denial of relief "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. sec. 2254(d); see also Braun, 227 F.3d at 916. "This standard only applies, however, to a 'claim that was adjudicated on the merits in State court proceedings.'" Braun, 227 F.3d at 916 (quoting 28 U.S.C. sec. 2254(d)). We have noted that the Supreme Court has "explained that a state court decision is 'contrary to' Supreme Court precedent 'if the state court arrives at a conclusion opposite to that reached by this Court on a question of law' or 'if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours.'" Anderson v. Cowan, 227 F.3d 893, 896 (7th Cir. 2000) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Additionally, an "unreasonable application" of clearly established Supreme Court precedent occurs "'if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case' or 'if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.'" Id. at 896 (quoting Williams, 529 U.S. at 407-08). We review whether a state ruling was "contrary to" clearly established law de novo; however, in determining whether a state court decision was an "unreasonable application of" clearly established law, we defer to any reasonable state court decision. See id. at 896- 97; Schaff v. Snyder, 190 F.3d 513, 522 (7th Cir. 1999). With that standard of review in mind, we now address Ms. Ouska's claims.
49
B. Enlargement of the Certificate of Appealability
50
Before proceeding further, we shall determine whether, as Ms. Ouska requests, we ought to enlarge the certificate of appealability to include her contention that the prosecution's use of her pre-arrest silence violated her rights under the Due Process Clause.
1.
51
In issuing a certificate of appealability ("certificate"), the circuit judge limited the issues on appeal to "[w]hether the prosecution's use of Ouska's post-arrest silence violated her due process rights and whether Ouska's trial counsel was ineffective in failing to object to the prosecution's use of Ouska's post-arrest silence." Order of Dec. 21, 1999.6 In her appellate briefs, Ms. Ouska asks us to amend that certificate to include her claim that the prosecution infringed her privilege against self- incrimination by introducing testimony of her pre-arrest, pre-Miranda silence in its case-in- chief.
52
Pursuant to 28 U.S.C. sec. 2253(c), a petitioner in habeas corpus may only appeal those issues for which a certificate of appealability has been granted. See Porter v. Gramley, 112 F.3d 1308, 1312 (7th Cir. 1997). A certificate may issue only as to those claims for which the applicant has made a substantial showing of the denial of a constitutional right. See 28 U.S.C. sec. 2253(c)(2). We have noted that, if a certificate is granted as to certain issues, but the petitioner is later able to make a substantial showing of the denial of a constitutional right as to a different issue, we shall amend the certificate to include such a claim. See Rodriguez v. Scillia, 193 F.3d 913, 920 (7th Cir. 1999); Williams v. Parke, 133 F.3d 971, 975 (7th Cir. 1997).
53
The State asks us to refuse to consider Ms. Ouska's request to amend the certificate. It submits that, because Ms. Ouska waited until the filing of her appellate briefs to request that we do so, and because this court has already issued a certificate as to specific issues, we should refuse to amend it now. Consideration of such a request, argues the State, "wastes time and resources and distracts the parties and the court." Appellee's Br. at 10. However, we have often considered requests to amend a certificate to include additional issues, not only when a party specifically asks that we do so in its briefs, see e.g., Schaff, 190 F.3d at 528; Hugi v. United States, 164 F.3d 378, 380 (7th Cir. 1999), but also when a party implicitly makes such a request by simply including issues in its briefs that were not specified in the certificate, see, e.g., Rodriguez, 193 F.3d at 920-21; Sylvester v. Hanks, 140 F.3d 713, 715 (7th Cir. 1998); Williams, 133 F.3d at 975. Of course, when we have determined that the expansion of a certificate was not warranted, we have noted that "we are not required to and will not" address arguments outside of those issues certified for appeal. Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000).
54
In Porter v. Gramley, 112 F.3d 1308 (7th Cir. 1997), we addressed a similar request by a state. In that case, a district court granted a certificate with respect to only one claim; on appeal the petitioner asked that we expand the certificate to include a separate claim. See Porter, 112 F.3d at 1312. The State of Illinois objected, arguing that the petitioner should first have to make an explicit request for an expansion of the certificate before raising the issue on appeal. See id. We noted that Federal Rule of Appellate Procedure 22(b), which states that when a petitioner makes "no express request for a certificate . . . the notice of appeal constitutes a request [for a certificate]," indicates that, when a district court granted a certificate only as to certain issues, this court should consider a notice of appeal addressing other issues as an implicit request to expand that certificate. See id. As a result, we declined to implement a requirement similar to that which the State asks for here. Moreover, after Porter, we have considered implicit requests to amend a certificate made in a petitioner's briefs, not only when the certificate was issued by the district court, but also when it was issued by our own court. See Rodriguez, 193 F.3d at 920 (noting that this court "may add issues to [a] certificate" that it issued, "if it is deemed necessary"); Sylvester, 140 F.3d at 715 (same).7
55
Therefore, as our past precedent dictates, we shall continue to consider requests to amend a certificate of appealability even when they are presented in a petitioner's briefs to this court. We are mindful that the certificate does play an important role as "a screening device, helping to conserve judicial (and prosecutorial) resources." Young v. United States, 124 F.3d 794, 799 (7th Cir. 1997). However, in those rare instances where the importance of an issue does not become clear until later in an appellate proceeding, this court has the authority to consider that issue, even though it is not included in the initial certificate.8
2.
56
To amend her certificate of appealability, Ms. Ouska must make a substantial showing that the State's use of her pre-arrest silence at trial violated her constitutional rights. To do so, she must demonstrate that reasonable jurists could debate whether this challenge in her habeas petition should have been resolved in a different manner or that the issue presented was adequate to deserve encouragement to proceed further. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Rutledge v. United States, 230 F.3d 1041, 1047 (7th Cir. 2000), cert. denied, 121 S. Ct. 1207 (2001).
57
The Illinois Appellate Court limited its review of the prosecution's use of Ms. Ouska's silence to instances of impeachment and did not address the use of that silence in the prosecutor's case- in-chief. We therefore review this issue under pre-AEDPA standards.
58
In Jenkins v. Anderson, 447 U.S. 231, 238 (1980), the Supreme Court ruled that the Fifth Amendment's privilege against self-incrimination is not violated when the prosecution uses a defendant's pre-arrest silence to impeach that defendant's credibility. The Court reasoned that, although it "can be argued that a person facing arrest will not remain silent if his failure to speak later can be used to impeach him," once a defendant voluntarily decides to take the stand, that individual has an obligation to testify truthfully. Id. at 236-38. At that point, the "'interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.'" Id. (quoting Brown v. United States, 356 U.S. 148, 156 (1958)).
59
Jenkins, however, left open the question of whether pre-arrest silence could be used against a defendant, not for impeachment purposes, but as substantive evidence of guilt. See id. at 236 n.2. We addressed that issue in United States ex rel. Savory v. Lane, 832 F.2d 1011 (1987). Savory involved a defendant who, in a non-custodial setting and without being provided with Miranda warnings, refused to answer any questions from police officers regarding a murder investigation. See id. at 1015. In that case, we concluded that the Supreme Court's opinion in Griffin v. California, 380 U.S. 609 (1965), which had forbidden the prosecution from using a defendant's silence at trial as an inference of his guilt, "applies equally to a defendant's silence before trial, and indeed, even before arrest." Savory, 832 F.2d at 1017. We reasoned that the right to remain silent attached before the institution of adversarial proceedings, and although "the presence of Miranda warnings might provide an additional reason for disallowing use of the defendant's silence as evidence of guilt, they are not a necessary condition to such a prohibition." Id. at 1018.9 Lastly, we noted that, because the defendant in Savory did not take the stand, the prosecution's motive in referring to his pre-arrest, pre-Miranda silence was to suggest that he was guilty, not to impeach his testimony, as was the case in Jenkins. See id. at 1017.
60
In this case, the prosecution made reference to Ms. Ouska's pre-arrest, pre-Miranda silence regarding Te's murder, not only during its cross- examination of Ms. Ouska, but also during its case-in-chief. This reference occurred when the State questioned Detective Shields regarding his discussion with Ms. Ouska about Te's death on the day after the murder. In response to the prosecution's questions, Detective Shields noted that Ms. Ouska repeatedly declined to discuss the murder, and he referred to her attitude as "uncooperative." R.7-8 at 16C. The district court ruled that, because Ms. Ouska later testified in the case and provided her own explanation for her silence, the prosecution was free to comment on her pre-arrest silence as a method of impeaching her testimony. See R.18 at 4-11 (distinguishing Savory as a case where the defendant did not take the stand, such that any reference to his silence must have been to suggest his guilt).
61
Ms. Ouska argues that the prosecution's reference to her silence in its case-in-chief, before she had ever taken the stand, shows that its purpose in using that silence was to demonstrate substantive evidence of her guilt, not to impeach her credibility. Our opinion in United States v. Hernandez, 948 F.2d 316 (7th Cir. 1992), supports this claim. In Hernandez, we held that, when the prosecution makes reference to a defendant's pre-Miranda silence in its case- in-chief,10 that reference demonstrates that those comments were intended as an inference of the defendant's guilt, even when that defendant later takes the stand. See 948 F.2d at 323. Moreover, we also noted that there was no evidence that the improper references in the prosecution's case-in-chief were made inadvertently. See id. The prosecutor in Hernandez had returned to questions regarding the pre-Miranda silence after an objection by the defense--a fact that we found to demonstrate a deliberate attempt to imply guilt and to show that "the prosecutor here asked his question expecting the answer he got." Id. In Ms. Ouska's case, as in Hernandez, the State made reference to her pre-arrest, pre-Miranda silence in its case-in-chief, before Ms. Ouska ever took the stand. Moreover, there was no indication that the State's questioning of Detective Shields regarding Ms. Ouska's silence was inadvertent or was otherwise not meant to suggest guilt. The State not only asked Detective Shields a number of follow-up questions regarding Ms. Ouska's silence at the hospital, but also continued to refer to the exchange between the two during its cross-examination of Ms. Ouska.
62
The State, relying on United States v. Davenport, 929 F.2d 1169 (7th Cir. 1991), argues that Savory's rule against the use of pre-arrest silence does not apply when a defendant agrees to speak with authorities, but then later chooses to stop doing so. Davenport involved two defendants who, aware that they were under investigation by the I.R.S. regarding unusually large deposits they had made, decided to answer an I.R.S. agent's questions regarding the transaction in an attempt to ward off future prosecution.11 See 929 F.2d at 1171-74. After "start[ing] down this path of self-exculpation," the defendants refused to answer other, related questions of the agents; at trial, they invoked their right against compulsory self-incrimination to prevent the admission of any of the comments they made to the investigators. Id. at 1174. We explained that:
63
The privilege against self-incrimination is not a privilege to attempt to gain an advantage in the criminal process, whether in its investigatory or its trial stage, by selective disclosure followed by a clamming up. Having voluntarily given the agent their version of the events, the [defendants] forfeited their privilege not to answer questions concerning that version.
64
Id. at 1174-75; see also Williams v. Chrans, 945 F.2d 926, 953 (7th Cir. 1991). However, Ms. Ouska's actions are different than those of the defendants in Davenport in some important respects. Ms. Ouska did not consent to accompany Detective Shields to the police station knowing that she would be questioned regarding Te's murder--instead, she was told that she would be looking at mug shots of her assailant. Moreover, the record demonstrates that once at the station, as soon as the police began to inquire about Te's death, Ms. Ouska immediately ceased the interview, requested her lawyer and later left the station.12 These facts do not suggest a suspect who, as was the case in Davenport, aware that she was being questioned regarding an investigation, attempted to exculpate herself with some answers and then later refused to answer additional questions related to those comments. It is true that at the time of her conversation at the station with Detective Shields, Ms. Ouska previously had told police a story that attempted to shield herself from inquiry regarding Te's murder; she falsely claimed that she had been stabbed on the street by a Mexican man. However, in light of the fact that, when aware that she was under investigation for Te's murder, Ms. Ouska immediately declined to answer any and all questions, we are doubtful that her previous comments regarding her initial explanation of the stabbing would be sufficient to start her down the "path of self-exculpation" under the meaning of Davenport, 929 F.2d at 1174.
65
As a result, we believe that Ms. Ouska has made a substantial showing, adequate to deserve encouragement to proceed further, that the State used her pre-arrest, pre-Miranda silence as an improper inference of her guilt, in violation of her constitutional rights. The State, as it had the right to do regarding issues not included in a certificate of appealability, declined to address Ms. Ouska's argument fully in its brief regarding the pre-arrest silence claim. See Schaff, 190 F.3d at 528 n.16; Sylvester, 140 F.3d at 715. Typically at this stage, we would amend the certificate to add this issue and "extend the appellee an opportunity to file a supplemental brief." Sylvester, 140 F.3d at 715. However, for the reasons set forth in Section II.C of this opinion, this step will not be necessary, as any constitutional error in the use of Ms. Ouska's pre-arrest, pre-Miranda silence was harmless. See Brecht, 507 U.S. at 637. Accordingly, we shall not enlarge the certificate of appealability.
66
C. The Prosecutor's Use of Post-Arrest Silence
67
In addition to its references to Ms. Ouska's pre-arrest silence, the State also made reference to Ms. Ouska's post-arrest, post-Miranda silence by noting her failure to claim that it was Martinez, and not her, who had murdered Te. In its consideration of this issue, the Illinois Appellate Court relied upon the doctrine of waiver because there had been no objection to these prosecutorial statements at trial. Ms. Ouska must therefore show cause and prejudice before we can consider the merits of this contention. See Jenkins v. Nelson, 157 F.3d 485, 491 (7th Cir. 1998) ("If a state court does not reach a federal issue because of a state procedural bar, that issue cannot be raised in a writ of habeas corpus to a federal court without a showing of cause and prejudice.") (citing Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977)). Ms. Ouska maintains that the ineffective assistance of her trial counsel in failing to object to the use of the post-arrest silence satisfies the standard for "cause and prejudice." See Murray v. Carrier, 477 U.S. 478, 488 (1986).
68
The Supreme Court has explained that to demonstrate "prejudice" under the cause and prejudice standard, a defendant must "shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original).13
69
We believe that Ms. Ouska has not demonstrated prejudice from any improper use of her post- arrest silence in light of the very substantial other evidence of her guilt. As an initial matter, the evidence demonstrated that Ms. Ouska had the opportunity to commit the murder on the morning of May 7, 1992, and that she was at the murder scene at the time of Te's death. Fontenot, Ms. Ouska's former foster mother, testified that, on the night before and the morning of the murder, she had been arguing with Ms. Ouska about money that Ms. Ouska had borrowed from Te. Fontenot maintained that, on the morning of the murder, Ms. Ouska left home in order to obtain money so that this debt could be repaid. Ms. Ouska left that morning at approximately 9:20 a.m. and returned, bloodied from a wound to her leg, at 10:00 a.m.; testimony established that Te was killed between 9:00 a.m. and 10:00 a.m. Ms. Ouska herself also admits that she was at Te's store, located only two or three minutes from the Fontenot home where Ms. Ouska lived, at the time of the murder. She contends, however, that, when she arrived at the scene, she saw Martinez repeatedly stabbing the victim.
70
Additionally, significant physical evidence linked Ms. Ouska to the crime scene and the murder. A knife was found under Ms. Ouska's mattress on the day after the murder; the knife contained blood later found to be consistent with Te's blood type and silicon later determined to be consistent with the silicon gel implants that Te wore in her prosthesis. Fontenot testified that only three weeks before, she had seen the same knife in Ms. Ouska's room and that Ms. Ouska explained to Fontenot at that time that she had found the knife in the basement of the house. Fontenot also said that, on the afternoon of the murder, she and her daughter found blood-stained money and a printout of winning lottery numbers from a previous date on Ms. Ouska's dresser.14 The blood on those two one-dollar bills was later found to be consistent with Te's blood enzyme and protein type. Additionally, blood consistent with Ms. Ouska's blood type was found in the front room of Te's store, and blood consistent with Ms. Ouska's blood enzyme and protein type was found on a rag recovered from the bathroom sink in the rear of the store.
71
Other evidence found in Ms. Ouska's possession casts doubt on the credibility of her version of events. When the police arrived at the store after Te's murder, the store's cash register was found open and emptied of money. Among Ms. Ouska's personal items, which the police had inventoried after she accompanied Detective Shields to the station on the day after the murder, the police found a blood-stained jacket. The blood on the jacket was later found to be consistent with Te's blood. In the pocket of that jacket was a medal depicting Saint Benedict.15 Teodora Kwong, Te's sister, testified that the medal was the same one that she had purchased in the Phillippines and given as a gift to Te and that Te kept the medal in her cash register at the store. The police also found a small green pencil in the jacket, later identified by Arthur Kwong, Te's brother-in-law, as one similar to the pencils that Te kept in her store for customers to use in filling out lottery slips.16 Lastly, the police discovered $87 in one-and five-dollar bills in the jacket, despite the fact that Fontenot had testified that Ms. Ouska left the house on the morning of the murder to look for money.
72
Additional evidence also provided reason for the jury to doubt the credibility of Ms. Ouska's testimony. On the morning of the murder, Ms. Ouska was ultimately taken to Illinois Masonic Medical Center to receive treatment for her wounds, and she stayed there until the next day, May 8, 1992. While there, she made repeated phone calls to the apartment of a friend, Lenoir Sanchez, who lived in the building next to the Fontenot home. Sanchez testified that Ms. Ouska asked her to go next door and to obtain "something from under [Ms. Ouska's] mattress," but when Sanchez asked what the item was, Ms. Ouska would not tell her. R.7-4 at 255C. Both Sanchez and her boyfriend Tommy Gonzalez each made separate attempts to get this unknown item from the Fontenot home. However, earlier that morning, under the same mattress, Rutledge had found the blood-stained knife used in the murder. As a result, Rutledge would not let Sanchez or Gonzalez in, and the police were called soon thereafter. Ms. Ouska subsequently testified that she kept her HMO card and paperwork under the mattress, materials that she needed due to her hospital stay, and that she asked Sanchez to retrieve that information. Ms. Ouska also claimed that she did not place the knife under the mattress; she explained that she had left the knife on top of the bed, in the pocket of the sweatshirt she had been wearing that morning, before she left for the hospital. Despite this alternate explanation, Ms. Ouska's phone calls to Sanchez and her request that Sanchez retrieve "something" from under Ms. Ouska's mattress, the same mattress under which the knife had been found earlier that morning, could have given the jury additional license to question Ms. Ouska's credibility.
73
Moreover, Ms. Ouska testified that at no point did she enter the rear portion of the convenience store, where Te was stabbed and where Te's body was found. Blood consistent with Te's blood, however, was later found on Ms. Ouska's jacket. Additionally, blood consistent with Ms. Ouska's blood enzyme and protein type was found on a rag recovered from the store's bathroom. The bathroom is located in the rear portion of the store.
74
Lastly, a number of other aspects of Ms. Ouska's testimony were inconsistent with her previous rendition of events. Between 9:00 a.m. and 10:00 a.m. on the morning of the murder, Ms. Ouska went to the home of her neighbor, Erma Gonzalez, and told Gonzalez that a Mexican man had tried to rob her and had stabbed her with a screwdriver, causing the wound in her leg. Yet, Ms. Ouska later told Fontenot, Rutledge and the police officers who first spoke with her about her injuries that she had been stabbed with a knife, not a screwdriver. Then, at trial, Ms. Ouska claimed that it was Martinez who had stabbed her, not the Mexican man that she had earlier described. Additionally, when Ms. Ouska related her story of the stabbing by the Mexican man to Fontenot and Rutledge, she claimed that, at one point, she had possession of the knife used in the stabbing but had dropped it on the street; Ms. Ouska later testified that she was concealing the knife at that time in her jacket, and that same knife was later found under her mattress.
75
Ultimately, the evidence supporting Ms. Ouska's guilt in this case was substantial and multi- faceted. That evidence demonstrated that she had the opportunity to kill Te on the morning of May 7, 1992, and that she was at the crime scene when the murder occurred. A number of items that appear to have come from the store, and more particularly its cash register, were found later in Ms. Ouska's clothing, and Ms. Ouska cannot explain how they came to be there. Blood consistent with Te's blood was found on Ms. Ouska's jacket, on money found in Ms. Ouska's room and, most importantly, on the knife found under Ms. Ouska's mattress. Testimony linked Ms. Ouska to the murder weapon and suggested that she attempted to hide that weapon before others could discover it. Moreover, Ms. Ouska's explanation of the events surrounding Te's death were inconsistent, casting further doubt on her credibility. Lastly, as the district court noted, "there is no evidence that corroborates [Ms. Ouska's] story about Martinez being the one who attacked the victim." R.18 at 13.
76
Given this evidence, we do not believe that Ms. Ouska can establish that she suffered prejudice by the prosecutor's remarks about her post-arrest silence.
D. Ineffective Assistance of Counsel
77
Ms. Ouska also asserts, as an independent ground for relief, that she was deprived of the effective assistance of counsel, guaranteed by the Sixth Amendment, because her trial counsel failed to object to the State's references to her post-arrest silence.17 For the sake of completeness, we now shall address the claim in this context. In order to prevail on a claim of ineffective assistance of counsel, Ms. Ouska must satisfy the familiar test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, Ms. Ouska must demonstrate (1) that her counsel's performance was deficient, such that under the circumstances, it was unreasonable under prevailing professional norms and (2) that she was prejudiced by her counsel's deficient performance. See Kitchen v. United States, 227 F.3d 1014, 1019-20 (7th Cir. 2000) (citing Strickland, 466 U.S. at 687-88). This claim is one that was decided on the merits by the Appellate Court of Illinois, which determined that Ms. Ouska could not satisfy the test's second prong, as "the evidence was not closely balanced," and, therefore, "counsel's failure to object [to the use of Ms. Ouska's silence] did not affect the result of the proceeding." R.1, Ex.A at 10. The district court agreed with this determination.
78
As we have noted earlier, Ms. Ouska filed her petition for habeas corpus on June 1, 1998, after the effective date of AEDPA; therefore, AEDPA applies to her case. See Williams v. Taylor, 529 U.S. 420, 429 (2000); Foster, 223 F.3d at 631 n.2. Under that statute, Ms. Ouska cannot obtain habeas corpus relief on a claim that the Appellate Court of Illinois addressed on the merits, unless that court's determination "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. sec. 2254(d)(1). We have noted that when addressing a claim of ineffective assistance of counsel under the AEDPA's deferential standard of review, "'only a clear error in applying Strickland's standard would support a writ of habeas corpus.'" Franklin v. Gilmore, 188 F.3d 877, 885 (7th Cir. 1999) (quoting Holman v. Gilmore, 126 F.3d 876, 882 (7th Cir. 1997)), cert. denied, 529 U.S. 1039 (2000). This principle applies because "Strickland builds in an element of deference to counsel's choices in conducting the litigation [and] sec. 2254(d)(1) adds a layer of respect for a state court's application of the legal standard." Id. (quoting Holman, 126 F.3d at 881).
79
Under this standard of review, even assuming arguendo that Ms. Ouska's trial counsel was deficient for failing to object to the use of her silence, any such error would not have prejudiced her. There is no reasonable probability that, but for that error, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694. As we have previously discussed in detail, the evidence in the record supporting Ms. Ouska's conviction is considerable. In light of that evidence, we believe that any harm caused by the failure of Ms. Ouska's trial attorney to object to the State's references to her silence would not have changed the result of her trial. Thus, Ms. Ouska cannot satisfy the second prong of the Strickland test, and her claim must fail. The decision of the Appellate Court of Illinois is not "an unreasonable application" of federal law. 28 U.S.C. sec. 2254(d)(1).
Conclusion
80
Therefore, for the reasons set forth in this opinion, the judgment of the district court is affirmed.
AFFIRMED
Notes:
1
In her petition for a writ of habeas corpus, Ms. Ouska named Odie Washington, then the director of the Illinois Department of Corrections, as the Respondent in this action. Subsequently, pursuant to Federal Rule of Appellate Procedure 43(c), Gwendolyn Thornton replaced Washington as the Respondent; Thornton was later replaced by the present Respondent, Lynn Cahill-Masching. For ease of reference, we shall refer to the Respondent in this opinion as "the State."
2
The structure of the convenience store where Te worked was described in detail by John Redmond, a forensic investigator and evidence technician for the Chicago Police Department, who arrived at the store soon after the murder to investigate the scene. See R.7-4 at 102C-103C. The store contained a customer area that patrons entered when they passed through the front entrance. A dividing wall separated this customer area from the rear portion of the store, and there was a small window in the dividing wall where customers received service from store workers, such as Te. The wall included a door that led to the rear of the store; when police arrived after the murder, this door was open, but there was no sign of forced entry. Te's body was found in the rear portion of the store, approximately 25 feet from the door located in the dividing wall.
3
Ms. Ouska's trial counsel did not file a motion to suppress evidence obtained during the police's search of this bag of clothing. The Appellate Court of Illinois noted that Ms. Ouska voluntarily gave this bag to the police and ruled that the failure of her counsel to file a suppression motion did not rise to the level of ineffective assistance of counsel. See R.1, Ex.A at 11-12. The validity of this search is not disputed by the parties on appeal.
4
For example, the prosecution noted that "the first time that [Martinez's] name ever pops up to . . . any type of law enforcement personnel, is when she opens her mouth on the stand two and a half years after the murder." R.7-2 at E-70.
5
The district court presumed that Ms. Ouska was not given Miranda warnings during her visit to the police station and observed that there was "no contention" that this visit, occurring after her release from the hospital, was a custodial interrogation. R.18 at 11 n.1. The court also assumed that Ms. Ouska was given Miranda warnings when she surrendered to police on May 28, 1992. See id. at n.2. The parties do not challenge those assumptions on appeal.
6
The district court denied Ms. Ouska's request for a certificate of appealability as to each of the issues she raised. See R.22. If a district court declines to issue a certificate, this court may issue one. See 28 U.S.C. sec. 2253(c); Fed. R. App. Pro. 22(b)(2).
7
Some courts of appeals require that, in order to expand the issues in a certificate, a party must present explicitly the request by motion to the court of appeals; others, as we have done, treat a notice of appeal as an implicit request to amend the certificate. See Jones v. United States, 224 F.3d 1251, 1255 (11th Cir. 2000) (collecting cases). These courts also seem not to distinguish, as we have not, between cases where a court of appeals considers expanding a district court's grant of a certificate and cases such as this, where a court of appeals is asked to expand a certificate that the circuit court itself has granted. See, e.g., Valverde v. Stinson, 224 F.3d 129, 136 (2d Cir. 2000); Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999), cert. denied, Hiivala v. Lambert, 529 U.S. 1009 (2000); Murray v. United States, 145 F.3d 1249, 1250 (11th Cir. 1998).
8
We also note that when Ms. Ouska made her initial request to this court for a certificate, she did so as a pro se plaintiff.
9
The circuits are divided regarding the proper answer to this issue. See, e.g., Combs v. Coyle, 205 F.3d 269, 282-83 (6th Cir.) (explaining the circuit split), cert. denied, Bagley v. Combs, 121 S. Ct. 623 (2000). Most recently, the Sixth Circuit joined this court, and the First and Tenth Circuits, in holding that the use of a defendant's pre-arrest silence as substantive evidence of guilt violates that defendant's Fifth Amendment rights. See id. at 283 (explaining that "[i]n a prearrest setting as well as in a post- arrest setting, it is clear that a potential defendant's comments . . . might be used in a criminal prosecution; the privilege [against self-incrimination] should thus apply").
10
In Hernandez, the silence that was used against the defendant involved his refusal to say anything to police after being placed under arrest, but before the Miranda warnings were read to him. See 948 F.2d at 322. Therefore, unlike Ms. Ouska's situation here and the situation in Savory, the alleged Fifth Amendment violation in Hernandez did not involve pre-arrest silence. However, we explained in Hernandez that the Fifth Amendment violation at issue there was distinct from the type of violation that Ms. Ouska now claims with respect to the use of her post-arrest silence. See 948 F.2d at 323 n.4. We noted that the latter claim was addressed by the Supreme Court's decision in Doyle v. Ohio, 426 U.S. 610, 618 (1976), which barred the use of a defendant's silence after Miranda warnings were given, explaining that it constituted a violation of the Due Process Clause of the Fourteenth Amendment. Because Ms. Ouska's pre-arrest silence claim involves the use of her silence before Miranda warnings were given, it implicates our decision in Savory regarding the privilege against self- incrimination, not the rule of Doyle.
11
In Davenport, the defendants were not placed under arrest and were not in custody, but were read their Miranda rights. See 929 F.2d at 1171.
12
The opinion of the Appellate Court of Illinois states that when first asked at the station about the knife found under her bed, Ms. Ouska "said she did not want to talk and left the station." R.1, Ex.A at 5. The district court opinion reiterates this fact. See R.18 at 3. Detective Shields, in his testimony, similarly confirms that, when first asked a question about Te's murder, Ms. Ouska refused to answer any questions about it and then left the police station. See R.7-8 at 16C. For her part, Ms. Ouska also testified that immediately upon being confronted with the knife and asked about the murder, she refused to answer any further inquiries and requested her lawyer. See R.7-3 at D-170. She then went on to state that Detective Shields continued to question her for "[s]ix to seven hours" more, before she was able to get a ride home from the station. Id. at D-171. She was asked no follow-up questions during her testimony as to what, if anything, she said to the detective during this additional questioning.
Ms. Ouska's description of events appears to conflict with the detective's claim that Ms. Ouska left the station right away after being confronted with questions about Te's death. Yet regardless of this discrepancy as to how long Ms. Ouska was questioned, neither she nor the detective asserted that after being first interrogated about the murder, Ms. Ouska did anything but decline to answer any and all questions related to it. Her reply brief clearly states that "Ouska did not continue her conversation with the detective after invoking her Fifth Amendment right" and that she "did not pick and cho[o]se questions she wished to answer or attempt to convince the detective to terminate the investigation." Appellant's Reply Br. at 10. As there is nothing in the record to contradict this explanation, we accept it as true for purposes of this opinion.
13
Here, Ms. Ouska relies on the alleged ineffective assistance of counsel as "cause" for her failure to object. As we discuss in Section II.D of this opinion, an allegation of ineffective assistance of counsel is governed by the test set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Under that test, an individual must show: (1) that her counsel's performance was deficient, such that under the circumstances, it was unreasonable under prevailing professional norms; and (2) that she was prejudiced by her counsel's deficient performance. See Strickland, 466 U.S. at 687-88. We are aware of the continuing ambiguity as to whether a finding of prejudice under Strickland would be sufficient to establish prejudice for the purposes of Wainwright v. Sykes's cause and prejudice analysis. See Fern v. Gramley, 99 F.3d 255, 259 n.4 (7th Cir. 1996); Freeman v. Lane, 962 F.2d 1252, 1259 n.5 (7th Cir. 1992). We need not resolve this issue today because it is clear that under any formulation of prejudice, Ms. Ouska cannot prevail.
14
Ms. Ouska later testified that the lottery printout did not belong to her.
15
The Appellate Court of Illinois described this medal of Saint Benedict as "uncommon." R.1, Ex.A at 10. This conclusion appears to have been drawn from the testimony of Rev. Charles Dahm, the pastor of a nearby Catholic church where Te attended Mass on most mornings. Father Dahm described the medal as "not a common medal." R.7- 5 at A-190. Ms. Ouska disagrees with the characterization of the medal as unique.
16
In her testimony, Ms. Ouska claimed that she had never seen the Saint Benedict medal or the green pencil and that they were never in her possession at any time.
17
Our certificate of appealability limited Ms. Ouska's Strickland claim to the issue of whether her trial counsel "was ineffective in failing to object to the prosecution's use of Ouska's post- arrest silence." Order of Dec. 21, 1999 (emphasis added). However, even if Ms. Ouska's request to expand the certificate to include a claim regarding the use of her pre-arrest silence, see supra Section II.B, also constitutes an implicit request that her ineffective assistance claim be similarly broadened to account for the failure of her trial counsel to object to the use of that silence, we would not find reason to do so. Due to the weight of the evidence supporting her guilt, we do not think that Ms. Ouska can make a substantial showing that her Sixth Amendment rights were violated under Strickland's standard, even taking into account the failure to object to the use of her pre-arrest silence. See 28 U.S.C. sec. 2253(c)(2). | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2260920/ | 428 A.2d 1204 (1981)
STATE of Maine
v.
William H. LANDRY, Jr.
Supreme Judicial Court of Maine.
Argued March 2, 1981.
Decided May 1, 1981.
*1205 Alan Kelley (orally), Asst. Dist. Atty., Skowhegan, for plaintiff.
Hunt & Alsop, John C. Hunt (orally), Skowhegan, for defendant.
Before McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS, GLASSMAN[*] and CARTER, JJ.
McKUSICK, Chief Justice.
Following trial before a jury in the Superior Court (Somerset County), defendant William Landry was convicted of operating a motor vehicle under the influence of intoxicating liquor, 29 M.R.S.A. § 1312(10) (Supp.1980), and of operating beyond license restriction, 29 M.R.S.A. § 530(1)(B) (Supp.1980). On his appeal Landry attacks both convictions, claiming that (1) the Superior Court should have granted his motion to dismiss the first charge because the police unjustifiably refused his request for a blood test; and (2) the evidence was insufficient to support a conviction on the second charge. We affirm both judgments of conviction.
From the testimony of Fairfield police officer Richard Harding, the only witness called by the State, the jury would have been warranted in finding the following facts. In the evening of December 22, 1979, around 10:30 p. m., Landry entered an intersection from the Davis Road in Fairfield, without even slowing at a stop sign. He attempted to turn left, but swerved, almost going into a ditch. After halting and backing up, he was stopped by Harding and fellow officer Eric Hunt. Landry smelled of alcohol, his speech was somewhat slurred, he staggered upon emerging from the driver' seat and kept his balance only by bracing both hands against the outside of the car. When he could not, or would not, perform a field sobriety test, the officers arrested him for operating under the influence. Landry did not cooperate in getting into the cruiser. After placing him inside and giving him Miranda warnings, the officers read him a form explanation of the "implied consent" law on blood-alcohol tests.[1] Landry responded that he would take no test until he could arrange by telephone to have his car picked up by friends instead of towed by the police. Harding *1206 told him that towing was inevitable since his car had become a police responsibility. The officers repeated two or three times their request that he elect a blood or breath test, each time reading from the form. Landry continued to insist that he first be allowed to call friends to move his car. The tow truck arrived at 10:51 p. m. The cruiser left for the police station shortly thereafter. Once Landry was "processed," the police allowed him to use a telephone. Apparently about to be bailed, he called to have someone pick him up and then, at about 11:25 p. m., he for the first time requested a blood test. At that point the police refused.
I
Defendant Landry maintains that the refusal of the police to assist him in acquiring potentially exculpatory evidence violated both a statutory right, 29 M.R.S.A. § 1312, and a Fourteenth Amendment due process right. He cites State v. Munsey, 152 Me. 198, 127 A.2d 79 (1956), for the principle that due process requires that a person charged with operating under the influence be afforded a "reasonable opportunity" to get a blood test. In Landry's view the opportunity afforded him in the cruiser was not reasonable because the test itself could not be administered there. Both blood and breath test kits were at the police station. Landry would thus have been taken to the station regardless of his election of tests.
As we review the record, we see no statutory or constitutional violation in the challenged conduct of the police. Landry was uncooperative from the outset. He would not attempt a field sobriety test. He had to be half lifted into the cruiser. And he insisted on exercising a purported right to arrange himself for the safe removal of his car before he would respond to the officers' request for an election. After his arrest, Landry had no right to find friends to remove his car. He did not even have a "right," only a power, to refuse to submit to blood-alcohol testing. State v. Plante, Me., 417 A.2d 991, 993 (1980). It is immaterial where an arresting officer informs a defendant of the tests available to him. He may do so at the police station, see, e. g., State v. Copeland, Me., 391 A.2d 836 (1978), at the scene of the arrest, see, e. g., State v. Deering, Me., 384 A.2d 447 (1978), or at any point in between.
After the officers in the case at bar explained to Landry that towing his car could not be avoided and that a telephone call would thus be useless, they several times extended to him further opportunity to elect a blood or breath test. Landry's continued insistence on a nonexistent right was, under the circumstances, justifiably deemed a refusal to take either test. Once an arrestee voluntarily refuses a reasonable opportunity to elect a chemical test, the police need not go out of their way to coddle a later change of mind. See State v. Allen, Me., 377 A.2d 472 (1977).
II
At trial it was stipulated that on the day of his arrest Landry's license was restricted to "operation between 6:00 a. m. to 6:00 p. m., otherwise plowing or road work only." The State's evidence warranted a conclusion that Landry was operating after 6:00 p. m. and was not snowplowing. Whether he was out to perform "road work," however, was not directly addressed in the State's case. Its only evidence on the point was Officer Harding's testimony that
during the processing, he was advised that he would also be summonsed for operating beyond restriction, and he said he was not operating beyond restriction as he was called to the residence on the Davis Road to work on a vehicle.
At the end of the State's case, defendant Landry moved to be acquitted of the charge of operating beyond license restriction on the ground of insufficient evidence to convict.[2] The presiding justice denied his motion.[3]*1207 Instead of then resting and seeking to attack the State's prima facie case on appeal, Landry went on the stand to testify in his own behalf. He said, in pertinent part, that he was an automobile mechanic by trade; that sometime before 7:00 p. m. on December 22 his mother received a request by telephone that he drive out to repair a friend's car that he had broken down on Davis Road; that he went to his shop in Norridgewock to get tools, then proceeded to Davis Road to look for the car, arriving there shortly after 9:00 p. m.; and that when stopped by the police he had just finished one pass down Davis Road in search of the car and was in the process of making a U-turn. In short, Landry, who was the only witness to testify besides Officer Harding, attempted to establish that he was out after 6:00 p. m. to do "road work" and therefore was not operating beyond his license restriction. Obviously the jury did not believe him.
At the close of all the evidence, Landry renewed his motion for judgment of acquittal, which the justice again denied. He now asserts on appeal that
if his explanation of what he was doing is disbelieved, the finder of fact is left with no evidence as to his purpose in driving that evening. Disbelieving his testimony does not give rise to evidence of a contrary purpose.
We cannot agree. Under the procedural posture of this case, the jury's conclusion that Landry was lying in testifying he was out to do road work does tend to prove the contrary.
A defendant who fails to rest after moving for judgment of acquittal at the close of the State's evidence waives the issue of the sufficiency of the State's casein-chief. Any subsequent challenge of the sufficiency of the evidence invokes a review of the totality of the evidence. Such is the well established law of Maine. State v. Smith, Me., 389 A.2d 314, 315 (1978); State v. Hanson, Me., 331 A.2d 375, 376 (1975), and cases there cited. The evidence in its totality amply supports Landry's conviction for operating beyond his license restriction. From the discrepancy between Landry's testimony and that of the officer as to the circumstances of his arrest, from the lateness of the hour, and, most importantly, from the substantial showing that Landry was highly intoxicated, the jury was fully warranted in finding beyond a reasonable doubt that his purpose in driving was not "road work."
The entry is:
Judgments affirmed.
All concurring.
NOTES
[*] GLASSMAN, J., sat at oral argument and in the initial conference but did not participate further in this decision.
[1] 29 M.R.S.A. § 1312 (since repealed and replaced by P.L. 1980, ch. 701, § 32) provided in pertinent part:
Any person who operates or attempts to operate a motor vehicle within this State shall be deemed to have given consent to a chemical test to determine his blood-alcohol level by analysis of his blood or breath, if arrested for operating or attempting to operate a motor vehicle while under the influence of intoxicating liquor.
He shall be informed by a law enforcement officer of the tests available to him, and said accused shall select and designate one of the tests. At his request he may have a test of his blood administered by a physician of his choice, if reasonably available.
1. Prerequisites to tests. Before any test specified is given, the law enforcement officer shall inform the arrested person of the consequences of his refusal to permit a test at the direction of the law enforcement officer....
2. Hearing. If a person under arrest refuses upon the request of law enforcement officer to submit to a chemical test to determine his blood-alcohol level by analysis of his blood or breath, none shall be given.... [H]is license or permit and his privilege to operate ... [shall be] suspended. Such suspension shall be for a period of 3 months for a first refusal .... If such a refusal is a 2nd or subsequent refusal ... such suspension shall be for a period of 6 months.
[2] Landry referred to his motion as a motion to dismiss. Because the motion raised a question as to the sufficiency of the evidence, we treat it as a motion for a judgment of acquittal. M.R. Crim.P. 29(a).
[3] Apparently in reference to the above-quoted testimony of Officer Harding, the presiding justice declared: "His [Landry's] explanation didn't sound like road work to me. Motion denied." We note that in her instructions to the jury the justice did not define "road work," but instead explained only that the State must prove that defendant was not engaged in it in order to convict him of operating beyond the license restriction. We also note that defendant failed to request a definition. Asked about this omission during oral argument, defense counsel stated that he had made a tactical decision to allow "road work" to remain undefined. We conclude that error in the instructions, if any, is foreclosed from our consideration. See M.R.Crim.P. 30(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260971/ | 428 A.2d 1087 (1981)
STATE of Vermont
v.
Michael A. FRENCH.
No. 23-80.
Supreme Court of Vermont.
February 3, 1981.
*1088 Mark J. Keller, Chittenden County State's Atty., Susan R. Via, Deputy State's Atty., and Alvin E. Dunnem, Law Clerk (on the brief), Burlington, for plaintiff.
Sylvester & Maley, Burlington, for defendant.
Before BARNEY, C. J., LARROW, BILLINGS and HILL, JJ., and SMITH, J. (Ret.), Specially Assigned.
BARNEY, Chief Justice.
The defendant, Michael French, appeals a judgment of conviction for kidnapping entered pursuant to 13 V.S.A. § 2401. On March 26, 1979, he and a companion offered the complaining witness a ride from the train station to her school. She voluntarily entered the car and was driven several miles to the vicinity of the school. Although she requested that she be dropped at the school, the defendant continued past that point and only stopped the car approximately a mile thereafter on a remote dirt road. At that point, the complaining witness again requested that she be allowed to leave the vehicle. Her request was again denied. Both men then had sexual intercourse with her before eventually dropping her at her school as originally requested.
French was charged with both sexual assault and kidnapping, but was convicted only on the kidnapping charge. He made motions for judgment of acquittal both at the conclusion of the State's case and at the close of the trial. Both motions were denied. The basis for the motion was that the confinement, if any, was merely incidental to the sexual assault. It is from the denial of this motion that the appeal has been taken.
The defendant cites the cases of People v. Levy, 15 N.Y.2d 159, 204 N.E.2d 842, 256 N.Y.S.2d 793 (1965), and People v. Lombardi, 20 N.Y.2d 266, 229 N.E.2d 206, 282 N.Y. S.2d 519 (1967), among others, for the proposition that the kidnapping conviction should be reversed as incidental to the primary rape charge. In so doing, we feel that he misconstrues the principle involved. In each of these cases, convictions on both the kidnapping charge and the primary charge to which the kidnapping was alleged to have been incident were obtained. They stand for the proposition that convictions for both crimes will not stand where the detention necessary to support the kidnapping conviction was quantitatively no greater than the detention which is, by virtue of the nature of the crime, incidental to the underlying rape or robbery. This principle has no application to a situation in which no conviction was obtained for the underlying crime. In such a situation, the kidnapping, if proven in every element, can stand on its own.
The standard of review for a denial of a motion for judgment of acquittal is whether the evidence, when viewed in the light most favorable to the State, reasonably supports the jury's finding of guilt beyond a reasonable doubt. State v. Bourassa, 137 Vt. 62, 68-69, 399 A.2d 507, 512 (1979). The kidnapping statute under which the defendant was convicted, 13 V.S.A. § 2401, provides as follows:
A person who, without legal authority, forcibly or secretly confines or imprisons another person within this state against his will, or forcibly carries or sends such person out of the state, or forcibly seizes or confines or inveigles or kidnaps another person with intent to cause him to be secretly confined or imprisoned in this state against his will, or to cause him to be sent out of this state against his will, or in any way held to service against his will, shall be imprisoned not more than twenty-five years or fined not more than $10,000.00, or both.
It is clear that the evidence presented is more than sufficient to support a conviction for kidnapping under the statute. Thus, the trial court's denial of the defendant's motion for judgment of acquittal will not be disturbed.
*1089 The defendant also raises an alleged inconsistency in verdicts as a basis for reversal of the kidnapping conviction. The jury found the defendant guilty of kidnapping, but was unable to reach a verdict on the rape charge. The defendant asserts that no set of facts could support such a result. He argues that since the fact of intercourse was admitted, the hung jury on the sexual assault charge must have been the result of a finding of consent. This, he argues, logically precludes a finding of nonconsent relative to the kidnapping charge.
To begin with, the defendant's analysis is speculative. Unanimity among the jurors that the complaining witness was held in the car against her will does not bar one or more of those same jurors from having doubts about the nonconsensual nature of the later intercourse. It is possible that the jury's inability to agree on the rape charge has some totally different basis, but assessment of the facts is within the province of the jury and if any view of the evidence supports their verdict, it is a sufficient basis on which to sustain it. State v. Girouard, 135 Vt. 123, 137, 373 A.2d 836, 845 (1977).
Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260977/ | 286 Pa. Super. 1 (1981)
428 A.2d 208
Eleanor COYNE, Administratrix of the Estate of Richard H. Coyne, deceased and Eleanor Coyne, in her own right, Appellant,
v.
PORTER-HAYDEN COMPANY, Melrath Gasket and Supply Company, Crane Packing Company and Johns-Manville Products Corporation,
v.
RAYBESTOS MANHATTAN, INC., Allied Chemical Corporation, Carolina Asbestos, Southern Asbestos, a/k/a H.K. Porter Company, Inc., Amatex Corporation, Bulk Asbestos Company, Eureka Packing Company, Donald R. Fitzgerald and Gatke Corporation.
Superior Court of Pennsylvania.
Argued June 10, 1980.
Filed April 3, 1981.
Petition for Allowance of Appeal Denied September 23, 1981.
*3 Joseph D. Shein, Philadelphia, for appellant.
Lionel B. Gumnit, Philadelphia, for Eureka, appellee.
Murray Levin, Philadelphia, did not file a brief on behalf of Fitzgerald, appellee.
Robert M. Britton, Philadelphia, did not file a brief on behalf of Gatke, appellee.
George D. Sheehan, Philadelphia, for Porter-Hayden, appellee.
John S. Kokonos, Philadelphia, did not file a brief on behalf of Melrath Gasket, appellee.
Howard M. Girsh, Philadelphia, did not file a brief on behalf of Crane, appellee.
Paul R. Brady, Philadelphia, for Johns-Manville, appellee.
John F. Naulty, Philadelphia, did not file a brief on behalf of Raybestos, appellee.
Joseph A. Gerber, Philadelphia, did not file a brief on behalf of Allied, appellee.
*4 Joseph H. Foster, Philadelphia, did not file a brief on behalf of Southern Asbestos, appellee.
Francis E. Shields, Alan K. Cotler, Philadelphia, for Amatex, appellee.
Before BROSKY, HOFFMAN and CIRILLO,[*] JJ.
HOFFMAN, Judge:
These consolidated appeals arise from wrongful death and survival actions brought by plaintiff-appellant. In two separate orders, the lower court granted judgment on the pleadings in favor of defendants Porter-Hayden Company, Melrath Gasket and Supply Company, Crane Packing Company, and Johns-Manville Products Corporation (defendants) and additional defendant Amatex Corporation (Amatex) on the ground that the actions were barred by the applicable statutes of limitations. Plaintiff contends that the statutes do not bar her actions. For the reasons which follow, we affirm the orders of the court below.
On June 2, 1978, plaintiff commenced these actions by writ of summons. Subsequently, in her amended complaint, plaintiff alleged that while employed as a boilermaker by Allied Chemical Company from 1951 to 1956, her late husband, Richard H. Coyne, "continually worked with, used, handled, and was caused to come into contact with and be exposed to asbestos products" which had been mined, manufactured, sold, and distributed by the defendants. The complaint averred also that the decedent died on January 6, 1972 after contracting asbestosis and other pulmonary and respiratory diseases resulting from his exposure to asbestos. Plaintiff sought damages on the theories of negligence, strict liability, and breach of warranty. Defendants joined several additional defendants, including Amatex. Defendants *5 and Amatex answered plaintiff's amended complaint and alleged in new matter that the actions were barred by the one-year statute of limitations applicable to wrongful death actions, Act of April 26, 1855, P.L. 309, § 2, 12 P.S. § 1603 (repealed), and the two-year statute of limitations applicable to survival actions, Act of June 24, 1895, P.L. 236, § 2, 12 P.S. § 34 (repealed).[1] In her reply to the new matter, plaintiff denied that these statutes of limitations barred her lawsuits. The defendants and Amatex subsequently filed motions for judgment on the pleadings, which the lower court granted. Plaintiff then took these appeals.
In most personal injury cases, the statute of limitations begins to run at the time the injury is sustained. In certain classes of personal injury cases, however, the statute of limitations does not begin to run until the plaintiff discovers or reasonably should have discovered (1) his injury, (2) its operative cause, and (3) the causative relationship between the injury and the operative conduct. Anthony v. Koppers Co., 284 Pa.Super. 81, 96, 425 A.2d 428, 436 (1980).[2] The rule delaying the commencement of the period of limitations in this manner is referred to as the "discovery rule." See id., 284 Pa.Super. at 89, 425 A.2d at 432, and cases cited therein. Plaintiff contends that her actions were timely brought pursuant to the discovery rule. In order to resolve this issue, we must first determine whether the discovery rule applies to an action to recover damages for an asbestos worker's personal injuries and death resulting from prolonged exposure to asbestos products.
In Anthony v. Koppers Co., supra the plaintiffs brought wrongful death and survival actions, alleging that emissions *6 from coke ovens erected by the defendants had caused their decedents to contract lung cancer which resulted in their deaths. The defendants argued that the Act of April 26, 1855 and the Act of June 24, 1895 barred the actions because they had been brought more than two years after the decedents' deaths. Our Court noted that no Pennsylvania court had previously decided whether the discovery rule applies to a "creeping disease" case, i.e., a case in which an individual has contracted a disease as a result of a continuous exposure to a hazardous substance. After reviewing the case law in other jurisdictions (including several asbestos cases), the Court agreed with the majority of courts that the discovery rule does apply to such a case.
Because asbestosis is a "creeping disease," the discovery rule applies to this case. Consequently, the two-year statute of limitations does not bar plaintiff's survival actions if before June 2, 1976, neither the decedent nor plaintiff discovered or reasonably should have discovered (1) the decedent's injury, (2) its operative cause, or (3) the causative relationship between the injury and the operative conduct. Similarly, plaintiff's wrongful death action is not barred by the one-year statute of limitations if neither the decedent nor plaintiff had or should have had the requisite knowledge before June 2, 1977. We must now determine whether plaintiff pleaded facts warranting application of the discovery rule to delay commencement of the periods of limitations sufficiently to maintain these actions. In so doing, we are mindful of the well settled rule that "[j]udgment on the pleadings should be allowed only where a case is free from doubt and trial would be a fruitless exercise. As with a demurrer, all the opposing party's well-pleaded facts must be accepted as true." Blumer v. Dorfman, 447 Pa. 131, 137, 289 A.2d 463, 467 (1972).
A plaintiff invoking the discovery rule to delay the commencement of the period of limitations must allege in *7 his or her pleadings facts which show why the action could not have been brought earlier. See Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963); Pulio v. Broad Street Hospital, 267 Pa.Super. 581, 407 A.2d 394 (1979). Plaintiff argues that the averment in her amended complaint that the decedent was unaware of the nature and cause of his injury was sufficient to warrant application of the discovery rule. We disagree. At most plaintiff's amended complaint can be construed as alleging that the decedent did not know the nature and cause of his injury when he retired in 1966. As noted by the lower court, plaintiff did not allege that the decedent lacked and could not obtain such knowledge at the time of his death in 1972. Moreover, nowhere in her pleadings did plaintiff allege that she was unaware of and could not discover the nature and cause of the decedent's injury before June 2, 1976.[3] Because plaintiff did not properly invoke the discovery rule in her pleadings, the lower court correctly concluded that the statutes of limitations bar these actions.[4] Accordingly, because "trial would be a fruitless exercise," Blumer v. Dorfman, supra, we affirm the lower court's orders granting judgment on the pleadings to defendants and Amatex.
Orders affirmed.
NOTES
[*] Judge Vincent A. Cirillo of the Court of Common Pleas of Delaware County, Pennsylvania, is sitting by designation.
[1] As of June 27, 1978, both actions are governed by the same two-year statute of limitations. See Act of July 9, 1976, 42 Pa.C.S.A. § 5524(2).
[2] In Anthony, our Court held that a plaintiff need not have knowledge that he or she has a cause of action for the statute of limitations to begin to run. See also Wallace v. Horvath, 283 Pa.Super. 179, 184, 423 A.2d 1047, 1050 (1980) (BROSKY, J., concurring).
[3] In her reply to the new matter of defendant Johns-Manville Products Corporation, plaintiff stated: "Plaintiff claims that due and proper notice was given, and is being given, as the extent and nature of plaintiff's [sic] disease has been, and is being determined, and the causal link between the said disease is related to asbestos dust inhalation and exposure." That statement is clearly insufficient to invoke the discovery rule.
[4] Plaintiff notes that in Schaffer v. Larzelere, supra, our Supreme Court remanded the case to allow the plaintiff to amend her pleadings. Unlike the plaintiff in Schaffer, however, plaintiff herein did not request the lower court to grant leave to amend her pleadings. Because plaintiff failed to seek relief in the lower court, we cannot now consider whether leave to amend should have been granted. Smith v. Brown, 283 Pa.Super. 116, 124, 423 A.2d 743, 747 (1980); Teagle v. Hart, 279 Pa.Super. 487, 491, 421 A.2d 304, 306 (1980); Di Sante v. Russ Financial Co., 251 Pa.Super. 184, 190, 380 A.2d 439, 442 (1977). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260982/ | 428 A.2d 1106 (1981)
Howard J. CHESSHIRE
v.
NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY.
No. 177-80.
Supreme Court of Vermont.
February 4, 1981.
Howard J. Chesshire, pro se.
Thomas M. Dowling of Ryan, Smith & Carbine, Ltd., Rutland, and Christopher M. Bennett, Burlington, for respondent.
Before BARNEY, C. J., LARROW, BILLINGS and HILL, JJ., and SHANGRAW, C. J. (Ret.), Specially Assigned.
HILL, Justice.
The appellant challenges a Public Service Board order upholding New England Telephone and Telegraph Company's interpretation of the tariff concerning telephone directory listings.
As an operator of a part-time crafts shop, the appellant periodically transacts business on his residential telephone service. He requested an additional white page directory listing for the telephone to display his business trade name, "Mandala." The telephone company informed the appellant that if he wished to include his trade name as an additional listing, he would have to reclassify his residential telephone service to business service and pay the business additional listing rate. The appellant claims residential *1107 rates should apply since the telephone still would be used primarily for nonbusiness calls.
From a challenge to the Public Service Board's decision upholding the telephone company's action, we find for the appellee, and affirm the Board's decision.
The appellant's telephone is primarily used for nonbusiness purposes, and his current status as a residential customer is not in dispute. At issue are the company's tariff provisions regarding whether a residential customer is entitled to an additional listing showing a business name.
The applicable tariffs are as follows:
P.S.B.VT.No. 20
Section 1, Page 1, Paragraph III H.
III. LIMITATIONS AND USE OF SERVICE
H. The use of measured or unlimited business exchange service is restricted to the customer, his agents and employees when engaged in his business, to residential tenants of the customer in clubs, lodging houses, hotels and motels (tenants or guests), marinas (transient guests or tenants), fraternity houses, dormitories, nurses' homes, apartment houses, to patients of hospitals, to patrons of the customer in connection with automatic dialing telephone units arranged for the origination of telephone calls only to prerecorded telephone numbers, and to joint users as arranged for. The use of unlimited residence exchange service is restricted to the customer and members of his household.
Section 1, Page 3, Paragraph IV A.
IV. CLASSIFICATION OF EXCHANGE SERVICE
A. Service is furnished at business rates if the use of the service is primarily or substantially for business purposes, or if the service is furnished at a business location.
Section 7, Page 1, Paragraph III A.
III. ADDITIONAL LISTING SERVICE
A. Additional listings are confined to the names of those who are entitled to use the customer's service as defined in Part I.
A business trade name is not within the category of those "entitled to use" the customer's service. Only the residence's customers and members of his household may use the residential telephone service and additional listings on such service are likewise specifically limited.
It is not within our province to pass judgment on the tariffs or to remedy whatever anomaly may exist when a customer who primarily uses his telephone for nonbusiness purposes is forced to pay business rates if he wishes an additional listing of a business trade name. Rate schedules on file with the Public Service Board become lawful rates which remain in force until changed in the manner prescribed by statute. Carpenter v. Home Telephone Co., 122 Vt. 50, 53, 163 A.2d 838, 841 (1960).
The appellant also claims the telephone company engages in an unfair trade practice by forcing businesses to buy yellow page listings if they desire white page space. We need not rule on our jurisdiction to hear the claim, nor on its factual veracity and merit, because the appellant is without standing to raise the issue. He has made no effort to buy a commercial listing, nor expressed an interest in doing so. The alleged merchandising scheme has therefore not affected the appellant. Action by us on the claim would be an advisory opinion. See In re House Bill 88, 115 Vt. 524, 64 A.2d 169 (1949). We will not grant advisory opinions. Id.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2260868/ | 238 P.3d 1073 (2010)
2010 UT App 219
Richard PRATT, Petitioner and Appellee,
v.
Charles PUGH, Respondent and Appellant.
No. 20090067-CA.
Court of Appeals of Utah.
August 12, 2010.
James C. Haskins and Graham J. Haskins, Salt Lake City, for Appellant.
Ronald D. Wilkinson, Orem, for Appellee.
Before Judges DAVIS, McHUGH, and VOROS.
*1074 OPINION
VOROS, Judge:
¶ 1 Respondent Charles Pugh appeals the trial court's entry of summary judgment in favor of Petitioner Richard Pratt. The trial court ruled that the liens created by Pugh's two trust deeds against Pratt's property were wrongful under the Wrongful Lien Act (the Act) and released them. See Utah Code Ann. §§ 38-9-1 to -7 (2005 & Supp.2009). We reverse.
BACKGROUND
¶ 2 The wrongful lien question before us is nested in a sprawling and hotly disputed transaction only hinted at by the briefs on appeal. Real Estate Investment Specialists, Inc. (REISI), of which Pugh is a shareholder, and Chris Pugh, Pugh's son, agreed to finance a business venture undertaken by Sovren Group, LLC (Sovren) involving "high grade concentrate ore." The investors hoped to provide financing of $4 million and reap "investment returns" of approximately $80 million paid over a period of twenty years. In connection with this transaction, on April 7, 2006, Jan W. Carlson, Bruce H. Coles, and Russell L. Robinson signed on behalf of Sovren a $4 million Promissory Note/Security Agreement payable to REISI. REISI was to disburse $4 million in three phases; Phase I was a disbursement of $500,000 to be paid after the delivery of unspecified trust deeds and security agreements. Sovren agreed to repay, over ten years, the principal of $4 million together with "return on investment" of $42 million. On April 11, 2006, Carlson, Coles, and Robinson signed on behalf of Sovren what purports to be a $2 million Promissory Note/Security Agreement payable to Pugh and Arnold E. Gilliam. The note in fact provides that Pugh and Gilliam were to disburse $4 million over three phases; Phase I was again a disbursement of $500,000 to be paid after the delivery of trust deeds against Pratt's two properties pursuant to a "Guaranty Agreement/Security Agreement." Sovren agreed to repay, again over ten years, the principal of $4 million together with "return on investment" of $22 million.
¶ 3 According to Pratt's affidavit, he allowed two properties to be encumbered by Pugh as "collateral for the investment." In a "Security Agreement" dated April 7, 2006, Pratt granted to Pugh a security interest in two properties. Pratt also signed a Guaranty Agreement/Security Agreement dated April 10, 2006, in which he guaranteed "Phase I collateral performance of the Sov[re]n/Charles D. Pugh Promissory Note/Security Agreement." Sovren executed two trust deeds encumbering Pratt's two properties (the trust deeds). Although Sovren was not the record title owner of the properties, Pratt has acknowledged that he signed a document authorizing Sovren to sign the trust deeds.[1] He may have been referring to one or both of the security agreements or to some other document. In any event, the parties do not dispute Sovren's authority to execute the trust deeds encumbering Pratt's properties. On April 11, 2006, Guardian Title recorded the two trust deeds and disbursed $500,000 to Sovren from Pugh's escrow account.
¶ 4 On or about April 21, 2006, REISI, Gilliam, and Pugh sent a letter to Sovren, Carlson, Coles, and Robinson repudiating the $2 million Note dated April 11, 2006, but affirming the $4 million Note dated April 7, 2006.[2] Within a few months, REISI filed suit against Pratt, Sovren, Carlson, Coles, Robinson, Guardian Title, and others seeking damages for breach of contract and a host of other causes of action, including defamation, tortious interference with contract, and intentional interference with economic relations. Sovren, Carlson, Coles, and Robinson filed a third party complaint against Pugh, Gilliam, and one other person. In his answer to this third party complaint, Pugh alleged that "the [trust] deeds were supposed to be *1075 additional collateral for the April 7, 2006 agreements ... and only became collateral for the April 11, 2006 agreement through fraud and extortion to take REISI's $500,000, and to obtain better terms." The answer also stated that Pugh "repudiated the April 11, 2006 agreement due to Pratt's and the other Defendants' fraud, lies, extortion, and coercion."
¶ 5 On September 26, 2006, counsel for Pratt sent a letter to Pugh demanding a release of the "wrongful lien" and threatening suit in the event the liens created by the trust deeds were not released. Pugh responded with a letter re-affirming the trust deeds on the ground that they secured contracts that were "under a cloud of dispute and legal proceedings." Pugh's letter further stated that the trust deeds would not be released until the debt they secured was paid according to the terms of "the note" or "when the legal proceedings are culminated." Pratt responded with the instant petition under the Act.
¶ 6 In a motion for summary judgment, Pratt argued that the liens created by the trust deeds were wrongful because, based on the positions Pugh had taken in the main case, either (a) there was no meeting of the minds and, thus, no valid contract was ever formed, or (b) Pugh had repudiated the agreement. Pratt did not propose to return or to have Sovren return the proceeds of the $500,000 loan secured by the trust deeds. Pugh responded that, having initially authorized the trust deeds, Pratt, "because of his own fraud in changing the terms of the agreements without disclosing the same to Mr. Pugh, is trying [to] capitalize on his fraud and remove the liens." The trial court entered summary judgment in favor of Pratt and ordered the liens released. It reasoned that the liens were wrongful "since it [was] undisputed that the contract between the parties failed at its inception." This ruling effectively converted a secured half-million-dollar loan into an unsecured half-million-dollar loan. The court also awarded Pratt statutory damages and attorney fees.
ISSUE AND STANDARD OF REVIEW
¶ 7 On appeal, Pugh contends that the trial court erred by ruling on summary judgment that the liens created by the trust deeds against Pratt's property were wrongful under the Act. "Summary judgment is appropriate only where (1) `there is no genuine issue as to any material fact' and (2) `the moving party is entitled to a judgment as a matter of law.'" Poteet v. White, 2006 UT 63, ¶ 7, 147 P.3d 439 (quoting Utah R. Civ. P. 56(c)). "Therefore, [w]e review the [trial] court's decision to grant summary judgment for correctness, granting no deference to the [trial] court." Eldridge v. Farnsworth, 2007 UT App 243, ¶ 18, 166 P.3d 639 (internal quotation marks omitted). Whether a lien is wrongful as defined in Utah Code section 38-9-1 is a "question of law which we review for correctness, giving no deference to the trial court's legal conclusions." See id. ¶ 21 (internal quotation marks omitted); see also Russell v. Thomas, 2000 UT App 82, ¶ 8, 999 P.2d 1244 (stating that whether a lien is wrongful under the Act requires statutory interpretation and, therefore, is reviewed for correctness).
ANALYSIS
¶ 8 Pursuant to the Act, "[a]ny record interest holder of real property against which a wrongful lien ... has been recorded may petition the district court in the county in which the document was recorded for summary relief to nullify the lien." Utah Code Ann. § 38-9-7(1) (2005); see also Gardiner v. York, 2010 UT App 108, ¶ 14, 233 P.3d 500. The statutory language does not make clear whether the legislature intended the petition "to act as a motion for an expedited proceeding addressing one issue within the context of a larger civil action, like a motion for partial summary judgment on the wrongful lien issue, or as a separate and independent action designed to resolve the wrongful lien claim." Anderson v. Wilshire Invs., LLC, 2005 UT 59, ¶ 14, 123 P.3d 393. Here, Pratt elected to file a petition separate from the main case involving this investment transaction.
¶ 9 "The summary proceeding contemplated by this statute is limited in a number of respects." Id. ¶ 10. For example, the summary proceeding "is only to determine *1076 whether or not a document is a wrongful lien." Utah Code Ann. § 38-9-7(4). The court "shall not determine any other property or legal rights of the parties nor restrict other legal remedies of any party." Id.
¶ 10 The Act "defines `wrongful lien' narrowly." Anderson, 2005 UT 59, ¶ 10, 123 P.3d 393.
"Wrongful lien" means any document that purports to create a lien, notice of interest, or encumbrance on an owner's interest in certain real property and at the time it is recorded or filed is not:
(a) expressly authorized by this chapter or another state or federal statute;
(b) authorized by or contained in an order or judgment of a court of competent jurisdiction in the state; or
(c) signed by or authorized pursuant to a document signed by the owner of the real property.
Utah Code Ann. § 38-9-1(6) (Supp.2009). This section is explicit that the wrongfulness of a lien must be determined as of "the time it is recorded or filed," id. Indeed, we have held that this section requires a court to evaluate the validity of a lien "based on the facts known at the time it was recorded, not at a later point in time after evaluating the merits." Eldridge, 2007 UT App 243, ¶ 50, 166 P.3d 639.
¶ 11 Unlike most wrongful lien appeals, the case at bar involves subsection (c).[3] Thus, the question before us would seem to be whether, at the time they were recorded, the trust deeds were "signed by or authorized pursuant to a document signed by" Pratt. See Utah Code Ann. § 38-9-1(6)(c). But the trial court did not rule, and Pratt does not contend, that at the time they were recorded the trust deeds were not authorized pursuant to a document signed by Pratt. This would seem to conclude the matter in Pugh's favor.
¶ 12 However, Pratt contends that "the liens against his property were based on an invalid contract and were thus invalid as well."[4] Even if the trust deeds "were technically `signed by or authorized pursuant to a document signed by the owner of the real property,'" Pratt argues, "it follows logically that the lien would lose such authorization if the underlying agreement authorizing the lien were later adjudged to be void." (Emphasis added.) Pugh, he asserts, although "arguably `authorized' to place the liens, should have immediately removed the liens when he realized there was no valid contract-or at the very least the court's later finding that such liens were invalid should be upheld." (Emphasis added.) In sum, Pratt argues that, although valid when filed, the trust deeds became invalid as a matter of law when a related agreement or promissory note was adjudged void. Likewise, although the trial court concluded that "the contract between the parties failed at its inception," this conclusion was based on Pugh's subsequent repudiation of the related contract or contracts.
¶ 13 This analysis employs the very retrospective evaluation of the trust deeds prohibited by controlling law. As noted above, the wrongfulness of a lien must be determined as of "the time it is recorded or filed," Utah Code section 38-9-1(6), and *1077 "based on the facts known at the time it was recorded, not at a later point in time after evaluating the merits," Eldridge v. Farnsworth, 2007 UT App 243, ¶ 50, 166 P.3d 639. The conclusion that Pugh repudiated one or more of the obligations secured by the trust deeds is based on a letter sent ten days and a pleading filed twelve months after the trust deeds were recorded, not "on the facts known at the time [the trust deeds were] recorded," id.[5]
¶ 14 The trial court's ruling also exceeded the scope of the Act. In a summary proceeding under the Act, the trial court may determine whether the lien at issue is wrongful but "shall not determine any other property or legal rights of the parties nor restrict other legal remedies of any party." Utah Code Ann. § 38-9-7(4) (2005). As noted above, the trial court here ruled that the liens created by the trust deeds were wrongful "since it [was] undisputed that the contract between the parties failed at its inception." The "contract" referred to was not the trust deeds at issue in this case; Pugh has never repudiated them. Rather, the "contract" referred to by the court was apparently one of the Guaranty Agreements signed by Pratt, the $4 million Promissory Note/Security Agreement signed by Sovren and payable to REISI, or the $2 million Promissory Note/Security Agreement signed by Sovren and payable to Pugh and Arnold E. Gilliam. The finding that Pugh repudiated "the contract" rests on Pugh's answer to a third party complaint filed by Sovren, Carlson, Coles, and Robinson against Pugh and two others in a separate action. The Amended Complaint in that action was filed by REISI and Pugh's son, Chris Pugh, against Sovren, Pratt, Carlson, Coles, Robinson, Guardian Title, and two others. The Amended Complaint alleges eight causes of action, including breach of contract, defamation, tortious interference with contract, intentional interference with prospective economic relations, conspiracy to defraud, intentional infliction of emotional distress, unjust enrichment, and improper dealing by a fiduciary. These claims all arise from the parties' acts with respect to "the contract" adjudicated in the summary proceeding in this case. Thus, the trial court adjudicated not only the trust deeds at issue in the summary wrongful lien proceeding but also one or more of the agreements or promissory notes central to a companion case involving numerous other claims and parties. This far exceeds the "limited" scope of the summary proceeding contemplated by section 38-9-7(4). See generally Anderson v. Wilshire Inv., LLC, 2005 UT 59, ¶ 14, 123 P.3d 393. Accordingly, we conclude that the trial court erred in ruling as a matter of law that the liens created by the trust deeds were wrongful.
¶ 15 Pratt contends that Centennial Inv. Co. v. Nuttall, 2007 UT App 321, 171 P.3d 458, requires affirmance. Centennial involved a piece of real property owned jointly by a divorced couple. See id. ¶ 2. The divorce decree provided that neither party could sell the property without the other's consent. See id. However, the husband alone signed a real estate purchase contract (REPC) agreeing to sell the property to Centennial Investment Company. See id. ¶ 3. Shortly thereafter, the husband and wife both signed an agreement to sell the property to a different buyer. See id. ¶ 4. Centennial sued to enforce its right to the property and filed a notice of interest against the property. See id. ¶ 5. On the wife's motion, the trial court nullified the notice of interest under the Act. See id. ¶ 6.
¶ 16 On appeal, Centennial contended that the notice of interest was authorized by statute, thereby exempting it from the definition of wrongful lien under section 38-9-1(6)(a). See id. ¶ 14; see also Utah Code Ann. § 38-9-1(6)(a) (Supp.2009) (excluding from the definition of "wrongful lien" any document creating a lien that is "expressly authorized by this chapter or another state or federal statute"). This court assumed for purposes *1078 of argument that the relevant statute was Utah Code section 57-9-4(1) of the Marketable Record Title Act, Utah Code Ann. §§ 57-9-1 to -10 (2000). That statute provides that any person claiming an interest in property may file a notice to preserve that interest. See Centennial, 2007 UT App 321, ¶ 15, 171 P.3d 458 (citing Utah Code Ann. § 57-9-4(1)). We affirmed the trial court's ruling on the ground that without the wife's signature the REPC could not convey an interest in the entire property to Centennial and, therefore, "Centennial's lien recorded against the entire parcel [was] wrongful." Id. ¶ 16. Accordingly, the Marketable Title Act did not authorize the notice of interest against the entire property. See id.
¶ 17 Centennial does not aid Pratt. To begin with, Centennial applied a different subsection of section 38-9-1(6) from the one at issue heresubsection (a) rather than subsection (c). Under subsection (c), the dispositive question is whether the challenged lien was authorized by the property owner, not whether it was authorized by statute. See Utah Code Ann. § 38-9-1(6)(c) (Supp.2009). Nevertheless, the cases are analogous in at least one important respect. In Centennial, the validity of the notice of interest depended on whether the REPC had been signed by the property owners. Because the REPC was not signed by both property owners, the notice of interest was wrongful under the Act. Here, the validity of the liens depends on whether the trust deeds were "signed by or authorized pursuant to a document signed by the owner" of the property, see id. Because the parties agree that the trust deeds were authorized by a document signed by the property owner, the liens created by the trust deeds are not wrongful under the Act. Thus, to the extent Centennial applies, it supports Pugh, not Pratt.
¶ 18 Nor does Centennial stand for the proposition that later events may cast doubt on an earlier lien. In Centennial, we were clear that the wrongfulness of a lien is determined "`at the time it is recorded.'" 2007 UT App 321, ¶ 14, 171 P.3d 458 (quoting Utah Code Ann. § 38-9-1(6)(a) (2005)). We did not hold that the REPC was authorized at the time the notice of interest was filed but invalidated by later events. See id. ¶¶ 13-16. The REPC was never authorized, because one of the two property owners never signed it. See id. ¶ 12.
¶ 19 In addition to nullifying the trust deeds, the trial court awarded Pratt statutory damages under Utah Code section 38-9-4. See Utah Code Ann. § 38-9-4 (2005). Section 38-9-4(2) provides that if a person "refuses to release or correct [a] wrongful lien within 20 days from the date of written request from a record interest holder of the real property .... the person is liable to that record interest holder for $1,000 ... and for reasonable attorney fees and costs." Id. § 38-9-4(2). In addition, section 38-9-4(3) provides that "[a] person is liable to the record owner of real property for $3,000 ... and for reasonable attorney fees and costs, who records ... a wrongful lien ... against the real property, knowing or having reason to know that the document ... is a wrongful lien." Id. § 38-9-4(3)(a).[6] Pursuant to those statutes, the trial court awarded Pratt $4,000 in statutory damages. It also awarded Pratt the full amount of his attorney fees set forth in his counsel's affidavit of attorney fees. Because we conclude the trial court erred in determining that the trust deeds were wrongful, we vacate the award of statutory damages. See Foothill Park, LC v. Judston, Inc., 2008 UT App 113, ¶ 20, 182 P.3d 924 (reversing the trial court's conclusion that the lien at issue was wrongful under the Act and, therefore, also reversing the award of statutory damages and attorney fees under section 38-9-4 of the Act).
¶ 20 Our decision is limited in scope. Although we hold that the trial court improperly invalidated the liens in a summary proceeding under the Wrongful Lien Act, we do not adjudicate their ultimate validity.
Although a lien may be deemed valid when the analysis is focused exclusively on the three wrongful lien factors contained in the Wrongful Lien Act, and therefore not subject *1079 to nullification in a summary proceeding, a petitioner may nevertheless prevail after a full hearing by demonstrating some other basis for invalidating the lien.
Anderson v. Wilshire Invs., LLC, 2005 UT 59, ¶ 35, 123 P.3d 393. We thus express no opinion as to whether, after a "full hearing," the liens may yet be invalidated on grounds unavailable to the trial court in this summary proceeding.
CONCLUSION
¶ 21 The trial court erred in nullifying the liens under the Wrongful Lien Act. We reverse the trial court's determination that the liens were wrongful and vacate its award of statutory damages and attorney fees.
¶ 22 WE CONCUR: JAMES Z. DAVIS, Presiding Judge, and CAROLYN B. McHUGH, Associate Presiding Judge.
NOTES
[1] Pratt stated in a deposition, "I had to have signed an agreement agreeing to ... transferring, so they could encumber the property.... So, [Sovren] signed the Deed of Trust. I had to have signed something in that pile of papers that allowed them to sign the deeds."
[2] Precisely when this letter was sent is unclear. The letter is dated April 11, 2006. It is not signed by the purported senders, but it is signed by a notary public. Her signature is dated April 21, 2006. In addition, the document appears to be the second page of a fax sent April 21, 2006.
[3] Appeals under the Act typically involve subsection (a) and address whether a lien claimant was authorized by state statute to file a notice of interest or lis pendens. See, e.g., Centennial Inv. Co. v. Nuttall, 2007 UT App 321, ¶¶ 15-16, 171 P.3d 458 (determining whether the notice of interest at issue was authorized by statute under subsection (a)); Eldridge v. Farnsworth, 2007 UT App 243, ¶ 48, 166 P.3d 639 (addressing only whether the lis pendens at issue was authorized by statute and thus outside the definition of "wrongful lien" under subsection (a)). Here, however, the parties agree that neither subsection (a) nor subsection (b) applies.
[4] Pratt did not seek rescission of the purportedly invalid contract or contracts at issue here. That would have required him or Sovren to relinquish the $500,000 received from Pugh. "It is inequitable that [a party] should, while retaining the benefits arising from one part of the contract, be allowed to rescind the other part." Kelly v. Kershaw, 5 Utah 295, 14 P. 804, 806 (1887). "The general rule is that one must rescind all of his contract and may not retain rights under it which he deems desirable to have and repudiate the remainder of its provisions." Simmons v. California Inst. of Tech., 34 Cal. 2d 264, 209 P.2d 581, 587 (1949) (citations omitted). "The theory underlying such a rule is that retention of only the benefits of the transaction amounts to unjust enrichment and binds the parties to a contract which they did not contemplate." Id.
[5] The letter from Pugh et al. to Sovren et al. dated April 11, 2006, and apparently sent April 21, 2006, might in part support an inference that Pugh repudiated one of the two promissory notes secured by the trust deeds on the date they were recorded. However, this same letter expressly reaffirms the other promissory note secured by the trust deeds. Accordingly, it cannot establish as a matter of law that, at the time the trust deeds were recorded, Pugh had already repudiated "the contract" they secured.
[6] The Act has since been amended, and the amount of statutory damages has increased. See Utah Code Ann. § 38-9-4 (Supp.2009) (increasing the amount of statutory damages from $1,000 and $3,000, to $3,000 and $10,000, respectively). This amendment does not change our analysis. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261081/ | 238 P.3d 111 (2010)
Terry L. SMITH, Appellant,
v.
Patrick L. RADECKI, M.D., Appellee.
No. S-13171.
Supreme Court of Alaska.
August 27, 2010.
*112 Terry L. Smith, pro se, Fairbanks, Appellant.
Howard A. Lazar and Kendra E. Bowman, Delaney Wiles, Inc., Anchorage, for Appellee.
Before: CARPENETI, Chief Justice, FABE, WINFREE, CHRISTEN, and STOWERS, Justices.
OPINION
CHRISTEN, Justice.
I. INTRODUCTION
Terry Smith injured his back while working for CSK Auto, Inc. (CSK) and brought a workers' compensation claim. CSK arranged for Dr. Patrick Radecki to perform an independent medical examination to assess Smith's condition. Dr. Radecki examined Smith and reported that he had no physical injury resulting from the incident. But Smith later underwent an MRI which revealed several spinal problems, including a Tarlov cyst. Smith filed suit against Dr. Radecki. His complaint included claims arising from Dr. Radecki's alleged failure to discover the existence of the cyst and Smith's earlier "failed" back surgery. In the alternative, Smith alleged that Dr. Radecki did discover his true back condition but failed to report it. The superior court granted Dr. Radecki's motion for summary judgment, ruling that Dr. Radecki and Smith did not have the requisite physician-patient relationship upon which to base a medical malpractice claim, and that Smith's claims were barred by the statute of limitations. Because we conclude that all of Smith's claims were dependent upon him having a physician-patient relationship with Dr. Radecki, and Smith did not have a physician-patient relationship with Dr. Radecki, we affirm the superior court's ruling. We do not reach the statute of limitations issue.
II. FACTS AND PROCEEDINGS
On March 29, 2001, Terry Smith injured his back while working as a delivery driver for CSK. Unloading cases of antifreeze from the bed of his truck, Smith "lifted and twisted" to remove two cases that were strapped together and immediately experienced "pain in his back and leg that took his breath away." Smith sought medical attention the next day and was treated for "acute muscle strain." He received temporary total disability benefits from March 30, 2001, through April 13, 2001.
When Smith's pain did not improve, additional assessments were performed which revealed abnormalities at L5 and possible degenerative disc disease at L4-5. He underwent a variety of treatments including medication, physical therapy, participation in a work hardening program, and epidural steroid injection.[1] Smith was given some *113 authorized time loss from work and then deemed partially disabled effective May 14, 2001. He returned to work in "a light duty capacity" from May 14 through July 8, 2001, but he continued to report symptoms including weakness, dizziness, disorientation, loss of consciousness, and pain. Smith began to miss work again and received additional temporary total disability benefits. But on August 14, 2001, Dr. Susan Klimow found Smith "medically stable."[2] Later that month Smith's treating doctors began to consider the possibility of psychological factors in his continuing complaints of pain, but physical interventions for his symptoms continued into 2003.[3]
CSK arranged for Dr. Patrick Radecki to perform an independent medical examination (IME) of Smith on July 25, 2003. Dr. Radecki's report states that prior to conducting the examination he informed Smith (1) "that the purpose of the examination was to address specific injuries or conditions, as outlined by [CSK's insurance carrier]," (2) that the IME was "not a substitute for his/her personal physician(s) or health care," and (3) that "[n]o physician/patient relationship exists or is sought." Smith did not dispute that he received this statement describing the scope of Dr. Radecki's engagement.
The report Dr. Radecki prepared reflects his conclusion that Smith suffered from "[m]ild degenerative disc disease" in his "lumbar spine, including minimal disc bulge which [was] not ... symptomatic," and exhibited "nonphysiologic pain behavior and multiple nonphysiologic responses to physical maneuvers ... that should not cause pain, typical of psychogenic pain disorder, severe in nature." In his report Dr. Radecki stated that "there is no objective evidence of permanent partial impairment that can be said to have been caused by the March 29, 2001, incident," advised against further physical or pharmacological interventions, and suggested psychological treatment and weight loss.
Smith again reported severe pain symptoms during subsequent vocational rehabilitation and underwent an MRI at Fairbanks Memorial Hospital on November 8, 2004. The MRI revealed disc desiccation at the L5-S1, L4-L5, and L3-L4 levels, displacement of the left S1 nerve root, L5 limbus vertebra, and a small sacral Tarlov cyst.[4]
On December 17, 2004, Smith filed a workers' compensation claim for ongoing medical bills and temporary total disability during recovery from anticipated back surgery. The claim alleged that the anticipated surgery would address pain arising from Smith's 2001 work-related injury. CSK controverted the claim, relying principally upon Dr. Radecki's conclusions that: (1) Smith was medically stable as of July of 2003; (2) Smith had no permanent impairment resulting from the 2001 injury; and (3) Smith did not require further medical treatment.
Smith filed suit against Dr. Radecki in the superior court in October 2006. His complaint included 18 claims that we group into three categories: (1) claims arising from Dr. Radecki's alleged failure to discover and properly treat his back condition;[5] (2) claims associated with the alternative theory that Dr. Radecki did discover the nature of Smith's back condition but did not report these findings to Smith;[6] and (3) claims that *114 are actually prayers for relief when read in context.[7]
Dr. Radecki moved for summary judgment on the grounds that Smith's claims were: (1) barred by the statute of limitations; and (2) precluded by the lack of a physician-patient relationship and corresponding duty of care. Dr. Radecki asked the superior court to "construe each of plaintiff's allegations as sounding in medical malpractice" and argued that "for plaintiff to succeed on any of [his] claims, there must have been a physician/patient relationship." Smith's opposition to the motion did not respond to the contention that Smith's claims should be treated as a malpractice allegation, but it did reiterate Smith's entire list of claims.
The superior court granted summary judgment, ruling that Dr. Radecki did not owe Smith a duty of care and that the statute of limitations barred his claims. The court's order did not distinguish between Smith's claims, impliedly treating them all as variously-stated claims for medical malpractice. Smith moved for reconsideration of the order granting summary judgment, but the superior court denied his motion and entered final judgment in favor of Dr. Radecki. Smith appeals.
III. STANDARD OF REVIEW
We review a grant of summary judgment "de novo, affirming if the record presents no genuine issue of material fact and if the movant is entitled to judgment as a matter of law. All reasonable inferences are drawn in favor of the nonmovant in this examination."[8]
We review questions of law using the de novo standard, "apply[ing] our independent judgment to questions of law, adopting `the rule of law most persuasive in light of precedent, reason, and policy.'"[9]
IV. DISCUSSION
Dr. Radecki argues that he did not owe a duty of care to Smith because he did not have a physician-patient relationship with Smith. Dr. Radecki examined Smith only once, and only in the context of conducting an IME. His report reflects the fact that Smith was informed of the limited nature of their professional relationship.
Alaska Statute 09.55.540 defines the standard of care for malpractice actions based upon the negligent or willful misconduct of health care practitioners. We have previously held that the duty to meet this standard of care arises specifically from the existence of a physician-patient relationship.[10] We have not previously considered whether the performance of an IME creates a physician-patient relationship between a doctor and an examinee or whether such an examination otherwise gives rise to a duty of care owed to the examinee.
Alaska Statute 09.55.540 requires that a party alleging medical malpractice in Alaska must prove:
(1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised under the circumstances, at the time of the act complained of, by health care providers in the field or specialty in which the defendant is practicing;
(2) that the defendant either lacked this degree of knowledge or skill or failed to exercise this degree of care; and
*115 (3) that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
In M.A. v. United States, we held that the duty to meet the standard of care specified in AS 09.55.540 is dependent upon the existence of a physician-patient relationship.[11]M.A. involved a minor's parents who alleged that their child's physician owed an independent duty of care to them. We held that the source of a physician's duty to provide reasonably competent medical care lies in the unique nature of the physician-patient relationship, and that a physician owes no comparable duty of care where no physician-patient relationship exists.[12] Dr. Radecki relied on M.A. in his motion for summary judgment to support his argument that he did not owe a duty of care to Smith.
Decisions from the majority of other states support Dr. Radecki's assertion that Smith's medical malpractice claim should fail as a matter of law for lack of a duty of care. These jurisdictions have concluded that an IME performed at the behest of a third party does not give rise to a physician-patient relationship or to potential for medical malpractice liability.[13] Courts adopting this rule rely principally upon the desire not to chill the willingness of doctors to act as expert witnesses in workers' compensation cases.[14] In these states, the duty of care for providing a correct diagnosis runs to the IME physician's employer rather than the patient.[15]
Given these authorities, the starting point for analyzing what duty Dr. Radecki owed to Smith must be the scope of work Dr. Radecki agreed to perform. Dr. Radecki expressly advised Smith at the outset of the IME that no physician-patient relationship would be undertaken and that the purpose of the examination was limited to the specific injuries or conditions identified by CSK's insurance carrier. We recognize that IME physicians examine and interact directly with examinees, but we disagree with Smith's argument that they thereby establish physician-patient relationships with examinees. Physicians conducting IMEs at the behest of third parties assume a fundamentally different role from a diagnosing or treating physician; typically, a physician conducting an IME is not selected by the examinee, is not hired by the examinee, does not report to the examinee, and does not provide treatment to the examinee. We are not persuaded that a physician who performs an IME undertakes a traditional physician-patient relationship or owes an examinee the duty of care that attends such a relationship.
Smith argues that even if he and Dr. Radecki did not have a traditional physician-patient relationship, we should rule that they had a limited physician-patient relationship giving rise to a duty to correctly diagnose Smith's condition. Smith supports this argument two ways. First, he argues that Dr. Radecki is a member of the American Medical Association (AMA) and the AMA's ethical guidelines state that a limited physician-patient relationship is established when an IME is performed. Second, he argues that a growing body of case law from other states recognizes a limited duty of care exists when IMEs are performed. We do not find either argument to be persuasive.
Smith argues that Dr. Radecki's membership in the AMA makes him susceptible to Smith's medical malpractice claim because the AMA's professional standards describe a "limited patient-physician relationship" in the context of an IME. The phrase Smith quotes comes from the AMA's ethics guidelines, a *116 non-binding code for ethical behavior by member physicians.[16] Smith offers no authority for the implied argument that these guidelines bear on the scope of IME physicians' legal liability in Alaska. Moreover, taken in context, the statement Smith relies upon does not support his claim in this instance. AMA ethics opinion 10.03 outlines the duty of IME physicians to: (1) be objective; (2) maintain examinee confidentiality; (3) disclose conflicts of interest; (4) inform examinees of the limited nature of the relationship arising from the IME; and (5) make patients aware of abnormalities discovered during the exam.[17] Smith did not present any evidence that Dr. Radecki failed to abide by any of these standards. Thus, even if we were to consider ethics opinion 10.03 to create a duty of care, it would not support Smith's claim against Dr. Radecki.
As for Smith's second argument, we acknowledge that courts in several other states have held that physicians owe a limited duty of care in an IME setting.[18] For example, the Tennessee Court of Appeals held that a limited physician-patient relationship exists when an IME is conducted, such that the physician has a duty not to injure the patient during the examination.[19] Similar decisions have been reached by courts in New York,[20] Colorado,[21] and Michigan.[22] The Michigan court described the limited duty as:
... not the traditional one. It is a limited relationship. It does not involve the full panoply of the physician's typical responsibilities to diagnose and treat the examinee for medical conditions. The IME physician, acting at the behest of a third party, is not liable to the examinee for damages resulting from the conclusions the physician reaches or reports. The limited relationship that we recognize imposes a duty on the IME physician to perform the examination in a manner not to cause physical harm to the examinee.[[23]]
Other courts have held that physicians have limited duties of care encompassing the duty to discover[24] and warn an examinee[25] of conditions which pose an "imminent danger" to the examinee's health, and to provide correct information to a patient about his condition in the event the IME physician "gratuitously undertakes to render services which *117 he should recognize as necessary to another's bodily safety."[26]
Though we acknowledge this growing body of case law, we also recognize that it is not implicated by the evidence Smith offered. Smith did not present admissible evidence that Dr. Radecki failed to diagnose a condition that posed imminent harm, that Dr. Radecki knew of and concealed an imminently dangerous condition,[27] that Dr. Radecki went beyond his role as an IME physician and gratuitously rendered medical advice directly to Smith,[28] or that Dr. Radecki injured Smith during the course of the examination itself.[29] Dr. Radecki's examination of Smith consisted of a review of Smith's medical records and a brief physical examination that was further limited by Smith himself.[30] Dr. Radecki delivered copies of his report to Smith's employer and legal representative and had no further direct contact with Smith. In sum, even if we were to recognize the limited duty that has been imposed by courts in other states, such a duty would not extend to actions taken by Dr. Radecki in this case.[31]
The superior court did not err in concluding that Dr. Radecki did not have a physician-patient relationship with Smith that would allow for liability for medical malpractice. This conclusion is fatal to the first category of Smith's claims, all of which expressly allege medical malpractice. To the extent Smith's second category of claims is premised upon the theory that Dr. Radecki willfully failed to disclose information he discovered during the IME, Smith's claims fail because he offered no admissible evidence to raise a genuine issue of material fact that Dr. Radecki discovered the cyst or that Smith's earlier surgical procedure was unsuccessful. Nor did Smith explain why, in the absence of a physician-patient relationship, Dr. Radecki would have had a duty to report these conditions to Smith if he had discovered them.[32]
V. CONCLUSION
We AFFIRM the superior court's order granting summary judgment in favor of Dr. Radecki on the issue of duty.
NOTES
[1] The epidural space is located outside the dura mater surrounding the spinal cord. 9 ATTORNEYS' TEXTBOOK OF MEDICINE § 58.20 (Roscoe N. Gray & Louise J. Gordy eds., 1999). The goal of the epidural steroid injection procedure is to reduce nerve root inflammation. 2 RICHARD M. PATTERSON, LAWYERS' MEDICAL CYCLOPEDIA § 16.9[E][2] (6th ed.2009). Smith may have also undergone radiofrequency ablation, a procedure in which heat is created by ionic vibration at the tip of a needle and applied to painful neural tissue. 4 id. § 29.15a.
[2] Smith was referred to Dr. Klimow for evaluation and treatment of lumbar strain by Dr. John Duddy, an orthopedic surgeon who had treated Smith.
[3] Pages are missing from the record of Smith's medical history; it is unclear exactly what treatment he received between August of 2001 and April of 2003.
[4] "[A] perineural cyst found in the radicles of the lower spinal chord; it is usually productive of symptoms." STEDMAN'S MEDICAL DICTIONARY 389 (25th ed. 1990).
[5] Claims in the first category include gross negligence, "failure to diagnose" (argued as two separate counts), "failure to use due care," misdiagnosis, "[f]ailure to provide appropriate treatment for a medical condition; [i]mproper diagnosis," "[l]ack of informed consent," "negligen[t] concealment of injury," battery, and "breach of duty." Smith's abandonment claim also falls into the first category: it alleges that Dr. Radecki "failed to attend and care for" Smith and that he failed to notify Smith of his withdrawal from the physician-patient relationship.
[6] The claims in the second category include "[f]ailure to advise of diagnosis," fraud, "[f]alse [r]epresentation," and spoliation of evidence. These claims are premised on the theory that Dr. Radecki discovered, but failed to report, the Tarlov cyst and that he discovered, but failed to report, that Smith's earlier surgery had been unsuccessful.
[7] These include "[i]nterference [with] medical treatment," "[i]nterference [with] employment contract," and emotional distress. In these claims Smith addresses the ways in which Dr. Radecki's diagnosis disrupted his access to continuous treatment paid for by CSK's workers' compensation insurance.
[8] Beegan v. State, Dep't of Transp. & Pub. Facilities, 195 P.3d 134, 138 (Alaska 2008) (citing Matanuska Elec. Ass'n v. Chugach Elec. Ass'n, 152 P.3d 460, 465 (Alaska 2007)).
[9] Jacob v. State, Dep't of Health & Soc. Servs., 177 P.3d 1181, 1184 (Alaska 2008) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)).
[10] M.A. v. United States, 951 P.2d 851, 856 (Alaska 1998) (holding that "the source of a physician's duty to provide reasonably competent care lies in the unique nature of the physician-patient relationship").
[11] Id.
[12] Id.
[13] See, e.g., Hafner v. Beck, 185 Ariz. 389, 916 P.2d 1105, 1107-08 (App.1995); Felton v. Schaeffer, 229 Cal. App. 3d 229, 235-36, 279 Cal. Rptr. 713 (Cal.App.1991); Martinez v. Lewis, 969 P.2d 213, 219-20 (Colo.1998); Peace v. Weisman, 186 Ga.App. 697, 368 S.E.2d 319, 320-21 (1988); Henkemeyer v. Boxall, 465 N.W.2d 437, 439 (Minn.App.1991); Ervin v. Am. Guardian Life Assurance Co., 376 Pa.Super. 132, 545 A.2d 354, 358 (1988); Johnston v. Sibley, 558 S.W.2d 135, 137 (Tex.Civ.App.1977); Joseph v. McCann, 147 P.3d 547, 551-52 (Utah App.2006); Rand v. Miller, 185 W.Va. 705, 408 S.E.2d 655 (1991); Erpelding v. Lisek, 71 P.3d 754, 760 (Wyo.2003).
[14] See, e.g., Hafner, 916 P.2d at 1107; Martinez, 969 P.2d at 219.
[15] See, e.g., Hafner, 916 P.2d at 1106; Felton, 229 Cal.App.3d at 235, 279 Cal. Rptr. 713.
[16] History of AMA Ethics, AM. MED. ASS'N, http:// www.ama-assn.org/ama/pub/physician-resources/ medicalethics/code-medical-ethics/history-ama-ethics.shtml (last visited July 16, 2010).
[17] Opinion 10.03-Patient-Physician Relationship in the Context of Work-Related and Independent Medical Examinations, AM. MED. ASS'N (Dec. 1999), http:// www.ama-assn.org/ama/pub/physician-resources/ medical-ethics/codemedical-ethics/ opinion1003.shtml.
[18] See, e.g., Green v. Walker, 910 F.2d 291, 296 (5th Cir.1990); Betesh v. U.S., 400 F. Supp. 238, 246-47 (D.D.C.1974); Ritchie v. Krasner, 221 Ariz. 288, 211 P.3d 1272, 1280-81 (App.2009); Keene v. Wiggins, 69 Cal. App. 3d 308, 313, 138 Cal. Rptr. 3 (Cal.App.1977); Webb v. T.D., 287 Mont. 68, 951 P.2d 1008, 1013-14 (1997); Hoover v. Williamson, 236 Md. 250, 203 A.2d 861, 863-64 (1964); Reed v. Bojarski, 166 N.J. 89, 764 A.2d 433, 443-44 (2001); Johnston, 558 S.W.2d at 137.
[19] Gentry v. Wagner, No. M2008-02369-COA-R3-CV, 2009 WL 1910959 (Tenn.App. June 30, 2009).
[20] Bazakos v. Lewis, 12 N.Y.3d 631, 883 N.Y.S.2d 785, 911 N.E.2d 847, 850 (2009) (holding that such a limited relationship encompasses a duty not to injure, but no duty to correctly diagnose).
[21] Slack v. Farmers Ins. Exch., 5 P.3d 280, 283-84 (Colo.2000).
[22] Dyer v. Trachtman, 470 Mich. 45, 679 N.W.2d 311, 314-15 (2004).
[23] Id. (emphasis added).
[24] Webb v. T.D., 287 Mont. 68, 951 P.2d 1008, 1013-14 (1997) (health care provider retained by third party to perform IME owes duty to patient to: (1) discover conditions posing "imminent danger" to examinee and take reasonable steps to alert examinee; and (2) assure advice to examinee meets standard of care for provider's profession; IME provider does not "have the same duty of care that a physician has to his or her own patient").
[25] Id.; see also Green v. Walker, 910 F.2d 291, 296 (5th Cir.1990) (physician who performs pre-employment medical examination for employer has affirmative duty to act in keeping with training and expertise and must inform patient of conditions posing imminent danger); Betesh v. United States, 400 F. Supp. 238, 246-47 (D.D.C. 1974) (army physicians who discovered abnormality in chest X-ray during selective service screening exam had affirmative duty to notify examinee of need for further medical attention); Reed v. Bojarski, 166 N.J. 89, 764 A.2d 433, 443-44 (2001) (physician retained to perform pre-employment physical has affirmative, non-delegable duty to inform patient of potentially serious medical condition).
[26] Hoover v. Williamson, 236 Md. 250, 203 A.2d 861, 863 (1964) (plaintiff may not ordinarily recover for malpractice without express doctor/patient relationship, but "one who gratuitously undertakes to render services which he should recognize as necessary to another's bodily safety, and leads the other in reasonable reliance on the services to refrain from taking other protective steps, or to enter on a dangerous course of conduct, `is subject to liability to the other for bodily harm resulting from the actor's failure to exercise reasonable care to carry out his undertaking'").
[27] Cf. Webb, 951 P.2d at 1013-14; see also Green, 910 F.2d at 296; Betesh, 400 F.Supp. at 246-47; Reed, 764 A.2d at 443-44.
[28] Cf. Hoover, 203 A.2d at 863.
[29] Cf. Gentry v. Wagner, No. M2008-02369-COA-R3-CV, 2009 WL 1910959, at *7-8 (Tenn.App. June 30, 2009).
[30] Smith refused to remove a lumbosacral corset for the examination and "forcefully decline[d] examination of the area, even with the corset left on," declined to perform range of motion tests, and refused to do a pelvic rotation movement.
[31] We agree with Smith that the absence of a physician-patient relationship does not immunize a physician performing an IME from all tort liability, and we do not rule out the possibility that a physician could be liable for conduct committed during an IME that is both tortious and not dependent upon a physician-patient relationship. Indeed, at oral argument before the superior court, Dr. Radecki's counsel acknowledged that an IME physician has "a duty to act carefully and reasonably." But the absence of a physician-patient relationship is fatal to Smith's medical malpractice claims.
[32] Smith does not argue on appeal that the superior court erred by treating all of his original claims as a single count of medical malpractice without explanation, nor did he argue this point below. It would have been preferable for the superior court to address Smith's claims individually or memorialize its implied conclusion that all of Smith's claims are variously phrased medical malpractice claims. But because our independent review of the record leads us to conclude that Smith's complaint was correctly interpreted as asserting multiple claims of medical malpractice, the superior court's error was harmless in this instance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2253973/ | 910 N.E.2d 1190 (2009)
Susan BUDZILENI, Petitioner,
v.
The DEPARTMENT OF HUMAN RIGHTS; Raymund Luna, Chief Legal Counsel of the Department of Human Rights; and The Department of Commerce and Economic Opportunity, Respondents.
No. 1-08-2188.
Appellate Court of Illinois, First District, Sixth Division.
June 5, 2009.
*1192 Richard J. Gonzalez, Law Offices, Chicago-Kent College of Law, Chicago, for Petitioner.
Lisa Madigan, Attorney General, Michael A. Scodro, Solicitor General, and Ann C. Chalstrom, Assistant Attorney General, Chicago, for Respondents.
Justice JOSEPH GORDON delivered the opinion of the court:
On November 7, 2005, petitioner, Susan Budzileni, filed a two-count charge of discrimination with the Illinois Department of Human Rights (Department of Human Rights), alleging that her employer, respondent, the Illinois Department of Commerce and Economic Opportunity (IDCEO), discriminated against her by denying her (1) equal pay (count I) and (2) equal terms and conditions of employment (count II), based on her gender in violation of section 2-102(A) of the Illinois Human Rights Act (Human Rights Act) (775 ILCS 5/2-102(A) (West 2004)). After conducting an initial investigation, on October 23, 2006, the Department of Human Rights issued a notice of dismissal for lack of substantial evidence as to both counts of petitioner's charge. However, after petitioner filed a request for review by the chief legal counsel of the Department, on August 13, 2007, the chief legal counsel vacated the dismissal order and reversed for further investigation into both counts. Upon further investigation, on August 20, 2007, the Department of Human Rights issued a second notice of dismissal, this time, however, based upon lack of jurisdiction as to both counts. When petitioner filed a second request for review by the chief legal counsel of the Department, on February 25, 2008, the chief legal counsel sustained the Department's dismissal as to count II of petitioner's discrimination charge (alleging unequal terms and conditions of employment) but reversed the dismissal order with respect to count I of petitioner's discrimination charge (alleging unequal pay) and ordered further investigation into that count. Only four days after this order was entered by the chief legal counsel, on February 28, 2008, the Department *1193 of Human Rights issued its third and final notice of dismissal with respect to count I (unequal pay). This time, the Department of Human Rights found that it lacked jurisdiction to consider some of the allegations of unequal pay, as these allegedly discriminatory payments had occurred 180 days prior to petitioner's filing of her discrimination charge. With respect to the remaining allegations of unequal pay which had occurred within the 180-day filing period, the Department of Human Rights concluded that petitioner had failed to present substantial evidence of unlawful discrimination. On July 14, 2008, the chief legal counsel sustained the Department's dismissal and petitioner now appeals.
Apparently, while petitioner's charge was pending before the Department of Human Rights, on February 10, 2005, petitioner sought parallel relief through a different agency, by filing a complaint against the IDCEO in the Illinois Department of Labor (IDOL), wherein she alleged a violation of the Illinois Equal Pay Act of 2003 (Illinois Pay Act) (820 ILCS 112/10 (West 2004)). The following parallel proceedings before the IDOL took place. On January 16, 2006, the IDOL held a hearing in petitioner's case wherein witnesses were called by both petitioner and the IDCEO. On June 30, 2006, the administrative law judge (ALJ) presiding of the hearing found in favor of petitioner and remanded the matter to the IDOL "to assert back wages according to the statute." However, upon rehearing the ALJ reversed the prior order finding that the IDCEO had not violated the Illinois Pay Act.[1]
The decision of the IDOL is not subject of this appeal. Rather, on appeal, petitioner solely challenges the decision of the chief legal counsel of the Department of Human Rights, contending that he erred in sustaining the Department's dismissal of her discrimination charge with respect to count I (unequal pay). Petitioner also does not challenge the Department's dismissal order with respect to count II (unequal terms and conditions of employment). With respect to count I, petitioner contends that she presented sufficient evidence before the Department of Human Rights to establish a prima facie case of sex discrimination based upon disparate pay by the IDCEO. Petitioner asserts that in dismissing her discrimination charge, the Department of Human Rights: (1) misinterpreted prevailing Illinois law regarding sex discrimination by setting an impermissibly high standard for "substantial evidence" and (2) improperly rendered credibility determinations in favor of respondent, in violation of a federal court injunction against the weighing of credibility at the investigative stage of a proceeding under the Human Rights Act (775 ILCS 5/1-101 et seq. (West 2004)). Petitioner further contends that the Department's final notice of dismissal of her discrimination charge was improper because it was made hurriedly and summarily only four days after the chief legal counsel's second reversal of the Department's dismissal, without any further investigation. For the reasons that follow, we affirm.
I. BACKGROUND
1. Petitioner's Initial Charge and the IDCEO's Response
On November 7, 2005, petitioner filed a two-count charge of unlawful discrimination *1194 with the Department of Human Rights, alleging that her employer, the Illinois Department of Commerce and Economic Opportunity discriminated against her by subjecting her to (1) unequal pay (count I) and (2) unequal terms and conditions of employment (count II), based upon her sex and in violation of section 2-102(A) of the Illinois Human Rights Act (775 ILCS 5/2-102(A) (West 2004)).[2] Because petitioner makes no challenge to the dismissal of count II of her discrimination charge (unequal terms and conditions of employment), but only asserts errors in the Department's findings with respect to unequal pay under count I, we need not set forth in much detail the facts relevant to count II. Instead, for purposes of brevity, we focus on the allegations and procedural history of count I.
In her charge of unlawful discrimination with respect to count I (unequal pay) petitioner alleged that from February 2004 to the present, the IDCEO had paid her less than two similarly situated male employees, David Streicker and Kyle Barry. Petitioner alleged that although she was more experienced that Streicker and Barry, performed work of equal skill, effort, and responsibility under similar working conditions, each man's $85,000 annual salary exceeded hers by more than $25,000. In her charge, petitioner acknowledged that the IDCEO's announced reason for the disparity in pay was the difference in petitioner's job title. She further conceded that while she had initially been hired in June 1999, as a public service administrator (PSA), and continued to perform duties of a PSA at the time she filed her charge, Streicker and Barry were hired in February 2004, as senior public services administrators (SPSA), a position supervisory to her own. Petitioner asserted, however, that these purported differences were merely pretextual.
On May 30, 2006, the IDCEO filed a verified response to petitioner's charge of discrimination with the Department of Human Rights, denying that the difference between petitioner's salary and the salaries of the two named male comparatives was a result of petitioner's gender. In its verified response, the IDCEO admitted that it hired petitioner as a PSA in June 1999. It also admitted that two male employees were hired as SPSAs in February 2004, at a salary of $85,000 per year, approximately $25,000 per year more than petitioner's salary. Although the pay scale for an SPSA is different than that for a PSA, the IDCEO denied that the difference in job titles was the sole basis for the salary differential between petitioner and the two male employees. Rather, according to the IDCEO, that pay disparity also resulted from the fact that the two men were hired to perform different duties, involving far more skill and responsibility than petitioner's position had or would have required.
2. Department of Human Rights' Initial Investigation and First Dismissal of the Charge
The Department of Human Rights investigated the matters raised by petitioner and on October 23, 2006, issued a notice dismissing both counts of defendant's *1195 charge based upon a lack of substantial evidence. In support of its dismissal, the Department of Human Rights attached voluminous records of its investigation. Those records reveal, among other things, that an investigator for the Department of Human Rights interviewed petitioner, Streicker, Jeanine Jiganti, former general counsel for the IDCEO and petitioner's supervisor, as well as Kathleen Bruns, formerly employed as an SPSA by the IDCEO. The investigator also reviewed numerous exhibits submitted by the parties, including a copy of petitioner's posthearing brief filed in her separate action before the IDOL alleging that the IDCEO had violated the Illinois Pay Act (820 ILCS 112/10 (West 2004)).
According to those submitted pleadings, and the exhibits attached thereto, petitioner made the following allegations relevant to the issues in this appeal. Petitioner has been a licensed attorney for over 13 years, with substantial experience working within the state government. Petitioner brought this relevant experience with her to the IDCEO in 1999 when she was first hired by the IDCEO as an attorney, in the position of PSA at a starting salary of just $41,172. For the next five years, together with two other female employees, Kathleen Bruns, and Erin Davis, petitioner performed all of the legal work for all of the bureaus served by the IDCEO, developing extensive expertise in the work of the IDCEO. When Kathleen Bruns resigned on January 30, 2004, petitioner and Erin Davis performed all of the legal work for all of the bureaus. In October 2003, the IDCEO hired Jeanine Jiganti as general counsel for the IDCEO. Upon her arrival, Jiganti was surprised to find that only two individuals, petitioner and Erin Davis, were performing the majority of the legal work and that petitioner's salary was as low as it was considering the amount of work she was performing. Jiganti informed petitioner that she intended to hire two more attorneys to help distribute the workload. So on thereafter, two men, David Streicker and Kyle Barry, were hired, and Jiganti requested that petitioner train them. Once Streicker and Barry were hired, Jiganti ended the IDCEO's existing work distribution policy, involving a task-by-task allocation of work to all attorneys, and replaced it with a policy of assigning each of the agency's bureaus to a specific attorney, who would then handle all legal matters associated with that particular bureau. Although petitioner was permitted first choice of bureau assignments due to her expertise and seniority, and Streicker and Barry were allocated the remaining bureaus, Jiganti continued to reassign many of Streicker's and Barry's tasks to petitioner because the two men lacked the expertise and experience to perform them. When petitioner learned that Streicker and Barry had been hired as SPSAs, she approached her supervisor, Jiganti, and inquired as to why she had not been informed of the vacancies prior to the new hires. Jiganti told petitioner simply that she "should have been aware of the postings."
The Department's investigator reported the following factual findings. During her interview with the investigator, Jeanine Jiganti former general counsel of the IDCEO, and petitioner's former direct supervisor, explained that all State employees' salaries, including those of the IDCEO employees, are determined according to an annual pay plan, which is revised and approved by the Illinois Department of Central Management Services (CMS) each fiscal year. Jiganti stated that to calculate starting salaries for PSA or SPSA positions, the IDCEO first requests the applicant's prior salary history. Pursuant to CMS guidelines, the IDCEO has the opportunity to raise the applicant's salary up *1196 to 10% of the applicant's last recorded salary. If the applicant's prior salary, however, is greater than the pay scale permitted for the position (PSA or SPSA), the applicant's salary is determined based on a "negotiated rate," so long as it is within the pay scale for the position.
The investigator's report established that this hiring procedure was derived from section 310.490 of Title 80 of the Illinois Administrative Code, which states in pertinent part:
"b) Entrance SalaryNormally upon entry to state service, an employee's base salary will be at the minimum salary of the salary range.
1) Qualifications above Minimum Requirements
A) If a candidate possesses directly related training and experience in excess of the minimum requirements of the class specification, the employing agency may grant an entrance salary up to the midpoint of the first half of the salary range; however, this shall not provide more than a 10% increase over the candidate's current salary. Such qualifications above the minimum requirements must posses documented support for higher than the minimum entrance salary.
B) An entrance salary above the middle of the first half of the salary range must have prior approval of the Director of [CMS]. This approval will be based on consideration of the candidate's training and experience exceeding the requirements of the class, prior salary history, particular staffing requirements of an agency, and labor market influence on recruitment needs.
2) Area DifferentialFor position where additional compensation is required because of dissimilar economic or other conditions in the geographical area in which such positions are established a higher entrance salary may be authorize by the Director of [CMS]." 80 Ill. Adm. Code § 310.490(b), amended at 20 Ill. Reg. 15018, eff. November 7, 1996.
The personnel files of all the attorneys employed either as PSAs or SPSAs from the time period between June 1999 up to the present revealed the following. Petitioner was hired as a PSA in the Chicago office on June 1999 at a starting salary of $41,172 per year. Prior to her employment with the IDCEO, petitioner worked as an assistant Attorney General in the revenue litigation bureau of the Illinois Attorney General's office from September 1995 to May 31, 1999, at a salary of $37,248. According to the CMS-approved pay plan in June 1999, the range of annual salaries for a PSA position was between $31,344 and $68,508, and the IDCEO could have started petitioner at an entrance salary less than what she had been making as an assistant Attorney General. However, the IDCEO took advantage of the 10% rule and raised petitioner's entrance salary to 10.53% more than her prior salary. Due to cost-of-living salary increases, at the time of the investigation, petitioner was earning approximately $61,800 per year.
David Streicker (male) was hired as an SPSA in the Chicago office in February 2004 at an annual salary of $85,000. According to the CMS-approved pay plan in February 2004, the salary range for an SPSA was between $49,560 and $116,460 and the advertisement for the position indicated that the salary would be determined "based on the candidate." Prior to coming to the IDCEO, Streicker was employed in the private sector at an annual salary was $145,000. Streicker took a 42% pay cut when he came to the IDCEO. He filled a vacant attorney position replacing the previous SPSA, Andrew Boron. *1197 Streicker is currently earning an annual salary of $88,329.
Andrew Boron (male) was employed by the IDCEO between October 2003 and November 2003 as an SPSA at an annual salary of $65,000.[3] He came to the IDCEO from private practice where he was earning the same amount.
Kyle Barry (male) was hired as an SPSA in the Springfield office on February 2004, at an annual salary of $85,000. Prior to coming to the IDCEO, Barry was employed in the private practice of law at a salary of $210,000 per year. When he came to the IDCEO, Barry took a 60% pay cut, filling a vacant position replacing Kathleen Bruns. Barry resigned in October 2005.
Kathleen Bruns (female) was initially hired by the IDCEO as a PSA in July 1995 at an annual salary of $47,220. She came to the IDCEO from the Illinois Department of Energy and Natural Resources, where she was earning the same amount. In December 1996, Bruns was promoted to an SPSA at a new annual salary of $55,668. Bruns salary increased over the years, and prior to her resignation in January 2004, she earned $92,952 per year.
Puja Kahjani (female) was hired as a PSA in the Chicago office in February 2006 at an annual salary of $63,000. Prior to this position, she worked in the private sector and had a salary of $60,000 per year. When she came to the IDCEO, Kahjani received a 5% increase and filled a vacant position replacing Erin Davis.
Erin Davis (female) was initially hired in June 2003 as a PSA in the Springfield office at an annual salary of $46,500.[4] Prior thereto, she worked in the private sector at an equivalent salary. In April 2004, Davis was promoted to the SPSA position and given a starting annual salary of $55,200. Due to a nonunion 4% salary increase, at the time of the investigation Davis was earning $57,408 per year.
Kyle Kirts (male) was hired in August 2002 as a PSA in the Springfield office at an annual salary of $46,848. Prior to this position, Kirts was employed in the private practice of law and had a salary of $42,588. When he started at the IDCEO, Kirts received a 10% pay increase.
The investigation further revealed that during her interview with an investigator from the Department of Human Rights, Jiganti stated, consistent with the position of the IDCEO, that one of the reasons for the disparate salaries was that Streicker and Barry were hired into different positions than petitioner. While petitioner held the position of PSA, Streicker and Barry were hired as SPSAs. Petitioner is a "merit employee," and there is no time limit on the duration of her employment with the IDCEO. Streicker and Barry, on the other hand, are term employees and their appointments as SPSAs expire (unless renewed) four years after their appointment.
According to the investigator's report, the jobs of a PSA and an SPSA involve different duties. The job description for a PSA states that "under the administrative direction of a Chicago SPSA legal counsel, [the PSA] functions as a legal advisor to the Director and the operational division of the [IDCEO] [and] handles all matters of a confidential and sensitive nature in the interest of the Agency" including, inter alia, (1) providing advice and recommendations *1198 with respect to collection of business development loans, confidential negotiation of workout and settlement agreements, and bankruptcy negotiations; (2) providing legal advice with respect to the [IDCEO's] collection policies; (3) drafting and negotiating conditions and terms of loan agreements; (4) performing confidential work for senior management relating to internal programs and activities, issuing opinions with respect to conflict of interest questions, statutory interpretation, and pending legislation; and (5) acting as a hearing officer for departmental representatives in administrative hearings and appeals brought pursuant to the Illinois Administrative Procedure Act [5 ILCS 100/1-1 et seq. (West 2006)], departmental rules or federal regulations.
On the other hand, the job description for an SPSA states that the SPSA "is subject to administrative approval [and direction] by the Chief legal counsel of the [IDCEO], plans, develops, formulates and supervises the activities of the legal staff * * *, drafts highly confidential legal documents, and assists Chief legal counsel in providing legal advice and direction to the Director and operational managers; [and] handles all matters of a confidential and sensitive nature in the interest of the Agency," including, inter alia, (1) supervising subordinate staff (including PSAs), in the assignment of duties and litigation, by planning, assigning, prioritizing, coordinating evaluating, reviewing and maintaining records of performance of subordinates and providing appropriate training, technical assistance and coaching for subordinates; (2) approving time off, promotions, demotions disciplinary actions, and attempts to resolve grievances for all subordinate staff; (3) counseling the agency director, deputy directors and division managers on legal issues, policies and procedures and matters affecting operations of the IDCEO's programs (such as drafting, revising, amending and reviewing complex commercial agreements, including e.g., loans, royalty and equity agreements; formulating procedures by directing and reviewing legal research on federal and state laws, and proposed legislation, that affect state and federally funded programs administered by the IDCEO); and (4) acting as the primary hearing officer for the IDCEO and representing the agency before the Department of Human Rights in fact-finding conferences.
During her interview, Jiganti further stated that both Streicker and Barry came to the IDCEO with extensive business backgrounds and actual litigation experience. Streicker was hired to create and run the Grant Funds Recovery Program, which included putting procedures in place to establish a formal hearing process. He was also assigned as the program director for the "Base Realignment and Closure Commission" (BRAC) project, which involved evaluating candidates, drafting contracts, and working with consultants to organize a publicity launch of the program. According to Jiganti, this "high profile" project required "a higher degree of skill and responsibility than what was expected from PSAs."
Jiganti also reported that as petitioner's supervisor between May 31, 2003, and June 1, 2004, she evaluated petitioner and rated her overall performance as "satisfactory." Jiganti, however, rated petitioner's teamwork as "unacceptable," explaining that petitioner was not a team player, and when new attorneys came to the IDCEO, she resisted in training or helping them. According to Jiganti, petitioner attempted to justify her position by asserting that when she started working at the IDCEO she had to learn everything by herself and that, therefore, the new attorneys should be required to learn on their own as well.
*1199 On the other hand, the investigation also disclosed that when she was interviewed by the Department's investigator, Kathleen Bruns, former PSA and later SPSA, as well as petitioner's prior supervisor, stated that former coworkers had told her that there were many complaints about Barry's and Streicker's lack of knowledge and their inability to perform legal services adequately. Bruns admitted, however, that she had very little contact with the two men herself. Specifically, Bruns indicated that she met Streicker briefly prior to resigning from the IDCEO and that she only met Barry after she left the agency.
Based on the aforementioned investigation, the Department of Human Rights found that petitioner had not been subjected to unequal pay based upon her gender and that there had been no evidence of animus based on sex. Specifically, the Department of Human Rights found that petitioner's named male comparatives, Streicker, Barry, and Andrew Boron, held supervisory SPSA positions (with a pay scale salary range between $49,560 and $116,460), while petitioner was employed as a PSA (with a pay scale salary range between $35,952 and $78,696). The Department further found that although all of the SPSAs and PSAs were paid within their position's salary ranges, a female SPSA, Kathleen Bruns, had been paid more than male SPSAs Streicker, Barry and Boron. The Department further found that the IDCEO determined new employees' starting salaries based on the pay guidelines articulated under section 310.490 of title 80 of the Illinois Administrative Code. The Department also noted that, when hired by the IDCEO, petitioner received the greatest percentage increase in her salary of any other new employee hired by the IDCEO (i.e., petitioner received a salary increase of 10.53% while a male comparative, Kyle Kirts, also hired as a PSA, received an increase of only 10%; both Streicker and Barry accepted substantial pay cuts; and Andrew Boron, an SPSA, received a 5% increase).
3. Petitioner's First Request for Review with the Chief Legal Counsel of the Department of Human Rights
On November 27, 2006, petitioner filed a request with the chief legal counsel of the Department of Human Rights for review of the Department's dismissal of her sex discrimination charge. Petitioner contended that the dismissal was erroneous in light of a favorable ruling she had obtained after a full evidentiary public hearing before a different agency, the IDOL, on June 30, 2006, in a substantially similar claim against the IDCEO, wherein she had alleged a violation of the Illinois Pay Act (820 ILCS 112/10 (West 2004)). In support of this argument, petitioner attached as exhibits copies of the IDOL's June 30, 2006, order finding that the IDCEO had violated the Illinois Pay Act (820 ILCS 112/10 (West 2004)) and remanding the cause to a compliance officer to assert back wages owed to petitioner, as well as briefs that she had submitted to the IDOL in support of her Pay Act claim.
In her request for review with the chief legal counsel of the Department of Human Rights, petitioner also asserted that the Department's investigation had: (1) improperly made credibility determinations in violation of Cooper v. Salazar, 196 F.3d 809 (7th Cir.1999); (2) set an impermissibly high "substantial evidence" standard; and (3) erroneously relied upon Streicker's and Barry's salary histories with prior employers to justify the pay differentials between petitioner and the male employees.
4. Chief Legal Counsel's First Vacature of the Department's Dismissal Order and Remand for Further Investigation
On August 13, 2007, the chief legal counsel of the Department of Human Rights *1200 vacated the Department's dismissal of petitioner's unlawful discrimination charge as to both counts and remanded the matter for further investigation to determine whether substantial evidence existed that the IDCEO discriminated against the petitioner based on her gender. The chief legal counsel also ordered the Department of Human Rights to determine whether petitioner's allegations of unequal pay were timely filed, i.e., filed within 180 days after the date on which the civil rights violation allegedly occurred. In that respect, the Chief legal counsel noted that each alleged payment of unequal wages was a separate and discrete incident, constituting a separate violation of the Human Rights Act, so that the allegations could not be analyzed under a "continuing violation" theory.
5. The Department of Human Rights' First Addendum to the Investigation of Petitioner's Charge and Second Dismissal of that Charge
Pursuant to the order of the chief legal counsel, on August 20, 2007, and after further investigation, the Department of Human Rights again issued a notice dismissing both counts of petitioner's discrimination charge, this time based on a finding of lack of jurisdiction. In doing so, the Department of Human Rights issued an addendum to its investigation report.
According to that addendum, the Department of Human Rights found that because a discrimination charge must be filed within 180 days of the date when the harm was actually incurred, petitioner's charge was untimely and the Department lacked jurisdiction to investigate. Specifically, the Department's investigation revealed that petitioner had filed her charge on November 7, 2005, alleging that she was subjected to unequal wages from February 2004 to the present, because two male employees were hired in February 2004 at salaries exceeding hers. According to the Department's report, the investigation revealed that Streicker was hired on February 17, 2004, while Barry was hired on February 25, 2004. Accordingly, when petitioner filed her charge on November 7, 2005, she did so 629 days after Streicker was hired and 621 days after Barry was hired, well over the 180-day time limit from the date of harm incurred. The Department therefore found that it lacked jurisdiction to consider petitioner's allegations.[5]
6. Petitioner's Second Request for Review With the Chief Legal Counsel
On September 25, 2007, petitioner filed her second request for review of the Department's dismissal of her charge with the chief legal counsel. In that request, petitioner complained that the addendum was issued too quickly, only five working days after the chief legal counsel's order remanding the cause for further investigation, and that the investigator for the Department did not involve her in this second investigation at all. Petitioner further complained that the Department incorrectly measured the 180-day period for filing the charge from the dates when Streicker *1201 and Barry were hired, contending that because each period covered by discriminatory compensation is newly actionable for a period of 180 days, all charges arising during such 180 days prior to the filing of the charge would be timely. Petitioner also asserted that any determination that she did not perform work similar to that of Streicker and Barry rested upon a credibility determination as to the truth of her assertions to the investigator that she was more experienced than the men and that the three of them performed the same work but for different bureaus within the IDCEO or on different projects. She contended that such credibility determinations may not be made during the investigatory stage of the proceedings under the Human Rights Act (775 ILCS 5/1-101 et seq. (West 2004)). Petitioner also asserted that it was evident that she was "more experienced" than Streicker and Barry because during the IDCEO's reorganization, she was given first choice of which IDCEO bureau to head. In support of her contentions, petitioner again attached as exhibits, an order of the IDOL decision in her separate Illinois Pay Act claim before that agency, as well as all the memoranda she submitted to the IDOL in support of that claim.
7. Chief Legal Counsel's Second Vacature of the Department's Dismissal Order with respect to Petitioner's Unequal Pay Count and Remand for Further Investigation
On February 25, 2008, the chief legal counsel of the Department of Human Rights vacated the Department's dismissal order with respect to petitioner's unequal pay count and remanded that count for further investigation in order to determine whether substantial evidence existed that the IDCEO discriminated against petition because of her sex. The chief legal counsel also reiterated that each alleged payment of unequal wages is a separate and discrete incident and ordered that the Department of Human Rights determine again whether petitioner's allegation of unequal pay was timely filed. The chief legal counsel, however, sustained the dismissal of petitioner's allegations with respect to unequal terms and conditions of employment on the basis of lack of jurisdiction.
8. The Department of Human Rights' Second Addendum to the Investigation of Petitioner's Charge, and Third Dismissal of That Charge
Pursuant to the order of the chief legal counsel, on February 28, 2008, the Department of Human Rights again issued a notice dismissing petitioner's charge with respect to the remaining unequal pay allegations for lack of jurisdiction. In doing so, the Department of Human Rights issued a second addendum to its investigation report explaining its conclusions. According to that report, the Department found that it lacked jurisdiction to investigate the allegations of unequal pay that occurred prior to May 11, 2005, which were more than 180 days before petitioner filed her charge on November 7, 2005. However, because incidents of unequal pay that occurred between May 11, 2005, and November 7, 2005, had been timely filed, the Department concluded that it had jurisdiction to investigate them.
With respect to the remaining instances of unequal pay, the investigation report reiterated its previous conclusions and rationale as detailed in its initial investigation report and recommended that the charge be dismissed on the basis of lack of substantial evidence.[6]
*1202 9. Petitioner's Third Request for Review With the Chief Legal Counsel
On April 3, 2008, petitioner filed a third request for review with the chief legal counsel of the Department of Human Rights. In that request, petitioner first argued that the second addendum report was issued too quickly, only four days after the chief legal counsel entered an order remanding for further investigation, and again without any contact between the Department's investigator and petitioner or her counsel. In support of this contention, petitioner attached as exhibits affidavits from herself and her counsel both admitting that during each of the prior remands, petitioner refused to agree to the Department's requests for an extension of time to complete the investigation, but asserting that each time petitioner told the investigator that both she and her counsel were "ready, willing and able to meet with [the investigator] and/or provide any information that would allow [the investigator] to complete the investigation as defined by the [c]hief legal counsel in the remand order."
Petitioner also challenged the Department's lack of substantial evidence finding, arguing that the Department's second addendum to the investigation merely "recycled" the Department's initial investigation and findings. Petitioner reasserted the same arguments she had made in her first request for review, adding, inter alia, that (1) the Department had made improper credibility determinations in light of her explanation that she performed the same work Barry and Streicker did and that she had more seniority at the IDCEO than Barry and Streicker because she had been offered first choice of bureau assignments when the IDCEO was reorganized; (2) the decision of the IDOL in her Illinois Pay Act claim before that agency alone provided substantial evidence to support her sex discrimination claim before the Department of Human Rights and (3) the difference in job titles between her and the men was of no consequence under Illinois law.
10. Chief Legal Counsel's Final Order
On July 14, 2008, the chief legal counsel of the Department of Human Rights sustained the Department's dismissal of petitioner's discrimination charge based on unequal pay. The chief legal counsel first determined that the Department lacked jurisdiction to investigate the allegations of unequal pay that occurred between February 2004 and May 11, 2005. The chief legal counsel then sustained the substantive dismissal of the allegations of unequal pay that occurred between May 11, 2005, and November 7, 2005, finding that there was a lack of substantial evidence that the IDCEO had subjected petitioner to lower wages based on her sex.
In support of his substantive findings, the chief legal counsel noted that petitioner is not similarly situated to Streicker and Barry. Petitioner was hired to perform the duties of a PSA while Streicker and Barry were hired to perform the duties of an SPSA. In those positions, Streicker and Barry were supervisors, who directed, trained and evaluated the subordinate staff in their assignments and duties, while petitioner worked under their supervision. The chief legal counsel also found that petitioner's job duties differed from those of Streicker and Barry, detailing the different job descriptions. In addition, the chief legal counsel noted that there is no substantial evidence that the IDCEO's articulated legitimate, nondiscriminatory reason for paying petitioner less than Streicker and Barry, namely, that the positions for which the men were hired entailed different duties requiring greater skill and *1203 imposing greater responsibilities, was a pretext for unlawful discrimination. The chief legal counsel also noted that the Department's investigation revealed that the IDCEO adhered to the CMS pay plan in setting the salaries of petitioner, Streicker and Barry when it hired them and that petitioner received a 10% pay increase over her prior salary while Streicker and Barry each took pay cuts. Accordingly, there was no evidence that the IDCEO harbored a sex-based animus or that there was a nexus between petitioner's lower salary and her sex.
The chief legal counsel finally noted that petitioner failed to provide any additional evidence in her request for review that would warrant reversal of the Department's original determination. With respect to the decision of the IDOL in petitioner's separate Illinois Pay Act claim before that agency, which petitioner submitted as an exhibit to her request for review, the chief legal counsel noted that the documents presented with that exhibit had been reviewed both by the Department of Human Rights during its investigation, as well as by the chief legal counsel himself. However, the chief legal counsel found that these documents were "neither relevant nor material to the allegations" in petitioner's request for review, because "the Department [of Human Rights] and the IDOL are governed by different statutes and a decision made by the IDOL has no bearing on the outcome of the Department's investigation."
Petitioner now appeals.
II. ANALYSIS
1. Petitioner's Failure to Comply with Supreme Court Rules 341 and 342
Prior to addressing the merits of this appeal, we must first direct our attention to the IDCEO's request that we strike petitioner's brief and dismiss this appeal based upon petitioner's failure to comport with the requirements of Supreme Court Rules 341(h) (210 Ill.2d R. 341(h)) and 342(a) (210 Ill.2d R. 342(a)). The IDCEO points out that in violation of Supreme Court Rule 341(h), in her brief, petitioner has failed to provide any citation to the record on appeal in: (1) the statement of jurisdiction (210 Ill. 2d R. 341(h)(4)(ii)[7]); (2) the statement of facts (210 Ill.2d R. 341(h)(6)[8]); and (3) the argument section (210 Ill.2d R. 341(h)(7)[9]). Rather, petitioner has provided "sporadic citations" to the appendix to her brief. According to the IDCEO this appendix, too, is insufficient *1204 because it does not contain a table of contents to the record on appeal or a copy of the petition for review as required under Supreme Court Rule 342(a) (210 Ill.2d R. 342(a)[10]). As a result, the IDCEO requests that we strike petitioner's brief or disregard her arguments on appeal.
While we acknowledge that where the appellant's brief violates the requirements of our supreme court rules, the "appellate court has discretion to strike [that] brief and dismiss the appeal" or disregard appellant's arguments (Alderson v. Southern Co., 321 Ill.App.3d 832, 845, 254 Ill.Dec. 514, 747 N.E.2d 926 (2001); see Jeffrey M. Goldberg & Associates, Ltd. v. Collins Tuttle & Co., Inc., 264 Ill.App.3d 878, 886, 202 Ill.Dec. 367, 637 N.E.2d 1103 (1994)), "`[w]here violations of supreme court rules are not so flagrant as to hinder or preclude review, the striking of a brief in whole or in part may be unwarranted'" (Hurlbert v. Brewer, 386 Ill.App.3d 1096, 1101, 326 Ill.Dec. 365, 899 N.E.2d 582, 586 (2008), quoting Merrifield v. Illinois State Police Merit Board, 294 Ill.App.3d 520, 527, 229 Ill.Dec. 255, 691 N.E.2d 191, 197 (1998)). Although our review of petitioner's brief and appendix reveals that petitioner's brief fails to comply with Rules 341(h) and 342(a), we conclude that petitioner's violations of those rules do not hinder our review of the case, since we have the benefit of the record before us, as well as the IDCEO's proper citations to the record on appeal. Accordingly, we will not strike petitioner's brief and instead turn to the merits of this appeal. See Hurlbert, 386 Ill.App.3d at 1101, 326 Ill. Dec. 365, 899 N.E.2d at 586.
2. Petitioner's Sex Discrimination Charge Pursuant to the Illinois Human Rights Act
Petitioner contends that the chief legal counsel of the Department of Human Rights erred in sustaining the Department's dismissal of her charge of discrimination with respect to her allegations of unequal pay brought under section 1-202 of the Illinois Human Rights Act (775 ILCS 5/1-101 et seq. (West 2004)). This Act prohibits "unlawful discrimination," i.e., discrimination against a person on the basis of, inter alia, his or her race, color, religion, national origin, ancestry, age, sex, marital status, or handicap. 775 ILCS 5/1-102 (West 2004). The Human Rights Act specifically defines the following conduct as a civil rights violation in the employment context:
"It is a civil rights violation:
(A) Employers. For any employer to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment on the basis of unlawful discrimination." 775 ILCS 5/2-102 (West 2004).
Under the Human Rights Act, an aggrieved employee may file a discrimination charge against the employer with the Department of Human Rights within 180 days of the date that the civil rights violation allegedly has been committed against him or her. 775 ILCS 5/7A-102(A)(1) (West 2004). After receipt of a charge, the Department of Human Rights must notify respondent and permit each party *1205 time to file a position statement and any other material that the party finds relevant to his or her cause. 775 ILCS 5/7B-102(B) (West 2004). After respondent is notified, the Department must conduct a full investigation of the allegations set forth in the charge and provide a written report of such an investigation. 775 ILCS 5/7B-102 (C), (D) (West 2004). After reviewing the investigation report, the Department of Human Rights must determine whether there is substantial evidence that the alleged civil rights violation has been committed. 775 ILCS 5/7A-102(D)(2) (West 2004). Under the Human Rights Act, substantial evidence is defined as evidence "which a reasonable mind accepts as sufficient to support a particular conclusion and which consists of more than a mere scintilla but may be somewhat less than a preponderance." 775 ILCS 5/7A-102(D)(2) (West 2004). If the Department of Human Rights determines that there is no substantial evidence, the charge is dismissed. 775 ILCS 5/7A-102(D)(2)(a) (West 2004).
If the charge is dismissed by the Department of Human Rights, the dismissal is reviewable by the Department's chief legal counsel. 775 ILCS 5/7A-102(D)(2)(a) (West 2004). The chief legal counsel's order reviewing the dismissal is a final and appealable order (775 ILCS 5/7A-102(D)(2)(a) (West 2004)), and petitioner may seek review of the chief legal counsel's order in the appellate court (775 ILCS 5/8-111(A)(1) (West 2004)).
The standard of review on appeal is whether the Department's chief legal counsel abused his discretion. Anderson v. Chief Legal Counsel, Department of Human Rights et al., 334 Ill.App.3d 630, 634, 268 Ill.Dec. 272, 778 N.E.2d 258, 261 (2002); see also Welch v. Hoeh, 314 Ill. App.3d 1027, 1034, 247 Ill.Dec. 946, 733 N.E.2d 410 (2000) ("we may not reweigh the evidence or substitute our judgment for that of the Department. [Citation.] Our review is limited to deciding whether the chief legal counsel's * * * decision dismissing the claim * * * is `arbitrary and capricious or an abuse of discretion.' [Citation.]"). A decision is arbitrary and capricious only if it "contravenes the legislature's intent, fails to consider a crucial aspect of the problem, or offers an impossible explanation contrary to agency expertise." Allen v. Lieberman, 359 Ill.App.3d 1170, 1177, 296 Ill.Dec. 649, 836 N.E.2d 64, 69 (2005); see also Deen v. Lustig, 337 Ill.App.3d 294, 302, 271 Ill.Dec. 589, 785 N.E.2d 521, 529 (2003), quoting Bodine Electric of Champaign v. City of Champaign, 305 Ill.App.3d 431, 435, 238 Ill.Dec. 368, 711 N.E.2d 471, 474 (1999) ("[a]n abuse of discretion is found when a decision is reached without employing conscientious judgment or when the decision is clearly against logic").
In the present case, in sustaining the dismissal of petitioner's claim of unlawful sex discrimination based upon unequal pay, the chief legal counsel found that the Department lacked jurisdiction to investigate the allegations of unequal pay that occurred between February 2004 and May 11, 2005, and that petitioner had failed to present substantial evidence supporting a prima facie case of sex discrimination with respect to the allegations of unequal pay from May 11, 2005, to November 7, 2005. With respect to the latter, as already noted above, the chief legal counsel specifically found, inter alia, that there was no substantial evidence that the IDCEO's articulated reasons for paying petitioner less than the two male comparatives, i.e., that the men were not similarly situated, that they held different positions and that they were hired to perform different job duties involving more skill and responsibility than *1206 petitioner had, were not a pretext for unlawful discrimination.
In her reply brief, petitioner concedes that the Department of Human Rights would have lacked jurisdiction to consider the allegations of unequal pay that occurred between February 2004 and May 11, 2005. She contends, however, that with respect to the remaining allegations, she presented sufficient evidence to establish a prima facie case of sex discrimination based upon unequal pay.
In that respect, petitioner first contends that the Department of Human Rights applied an erroneous legal standard in determining that she failed to present sufficient evidence to establish a prima facie case when it found that the IDCEO's articulated, legitimate, nondiscriminatory reason for paying petitioner lower wages was not a pretext for unlawful discrimination. She argues that in making this determination, the Department of Human Rights erroneously applied the three-prong standard utilized in analyzing discrimination actions brought under title VII of the Civil Rights Act of 1964[11] (42 U.S.C. § 2000e et seq. (2000)), instead of applying the analysis used in federal cases brought under section 206(d)(1) of the Equal Pay Act of 1963 (Equal Pay Act)[12] (29 U.S.C. § 206(d)(1) (2000)). Petitioner asserts that as a result, the Department set an impermissibly high standard for "substantial evidence." For the reasons that follow, we disagree.
In that respect, we first note that petitioner, here, brought her charge of discrimination pursuant to the Illinois Human Rights Act (775 ILCS 5/1-101 et seq. (West 2004)). In Zaderaka v. Illinois Human Rights Comm'n, 131 Ill.2d 172, 178-79, 137 Ill.Dec. 31, 545 N.E.2d 684 (1989), our supreme court recognized that in evaluating charges of discriminatory hiring practices brought under this Act (775 ILCS 5/2-102(A) (West 2004)), the Department of Human Rights and the Illinois appellate courts have adopted the three-part test employed by the federal courts in actions for employment discrimination brought under title VII of the Civil Rights Act (42 U.S.C. § 2000e et seq. (2000)), as articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677 (1973).
Under this three-prong test, the petitioner must first establish by a preponderance of the evidence a prima facie case of unlawful discrimination. Zaderaka, 131 Ill.2d at 179-80, 137 Ill.Dec. 31, 545 N.E.2d 684.[13] If a prima facie case is established, *1207 a rebuttable presumption arises that the employer unlawfully discriminated against the plaintiff. Zaderaka, 131 Ill.2d at 180, 137 Ill.Dec. 31, 545 N.E.2d 684. Second, to rebut the presumption, the employer must articulate, not prove, a legitimate, nondiscriminatory reason for its decision. Zaderaka, 131 Ill.2d at 180, 137 Ill.Dec. 31, 545 N.E.2d 684. Third, if the employer articulates such a reason, the plaintiff must prove, again by a preponderance of the evidence, that the employer's reason was untrue and was pretext for discrimination. Zaderaka, 131 Ill.2d at 180, 137 Ill. Dec. 31, 545 N.E.2d 684. Under this test, the ultimate burden of persuasion remains on the plaintiff throughout the proceedings. Zaderaka, 131 Ill.2d at 180, 137 Ill.Dec. 31, 545 N.E.2d 684.
Unlike this test, however, the procedure used in analyzing actions under the Equal Pay Act (29 U.S.C. § 206(d)(1) (2000)) which petitioner urges us to apply here on appeal, permits the shifting of the burden of proof to the employer. Under this test, if the petitioner establishes by a preponderance of the evidence that an employer is paying members of one sex more than members of the other sex for similar work, the burden immediately shifts to the employer to establish also by a preponderance of the evidence that the differential is based upon one of the following articulated factors: (1) a seniority system, (2) a merit system, (3) a system that measures wages by the quality or quantity of production, or (4) a system "based on any other factor other than sex." Corning Glass Works v. Brennan, 417 U.S. 188, 195-96, 94 S.Ct. 2223, 2228-29, 41 L.Ed.2d 1, 10-11 (1974).
Petitioner invites us to apply this standard in place of the three-part test used in evaluating actions under title VII of the Civil Rights Act (42 U.S.C. § 2000e et seq. (2000)), contending that our supreme court's decision in Zaderaka is restricted to discriminatory hiring cases brought under the Human Rights Act (775 ILCS 5/2-102(A) (West 2004)), which are more analogous to tile VII actions and for which the three-part test was developed. In support of her contention, petitioner cites to a line of Illinois appellate decisions preceding Zaderaka, which held that a charge of discrimination brought under the Human Rights Act (775 ILCS 5/2-102(A) (West 2004)) is akin to an action brought under the Equal Pay Act (29 U.S.C. § 206(d)(1) (2000)).[14]
We, however, decline petitioner's invitation to apply this standard based on the decision of this appellate court in Illinois State Board of Elections v. Human Rights Comm'n, 291 Ill.App.3d 185, 225 Ill.Dec. 508, 683 N.E.2d 1011 (1997), appeal denied, 175 Ill.2d 528, 228 Ill.Dec. 718, 689 N.E.2d 1139 (1997), which extended Zaderaka to claims of unequal pay brought under the Human Rights Act (775 ILCS 5/2-102 (West 2004)). In that case, just as here, the parties disagreed as to which theory in regard to the allocation of burden of proof applied in an action brought under section 2-102(A) of the Human Rights Act (775 ILCS 5/2-102 (West 2004)), alleging unlawful gender-based discrimination based on unequal pay. The employer (the Illinois State Board of Elections) argued that the appropriate procedure is that used in proceedings under title VII of the Civil Rights Act (42 U.S.C. § 2000e et seq. (1994)), while the employee *1208 and the Department of Human Rights both argued that the appropriate procedure was the one used in analyzing complaints under the Equal Pay Act (29 U.S.C. § 206(d)(1) (1994)).
The appellate court in Illinois State Board of Elections found that the appropriate standard is the three-prong analysis used in title VII actions and adopt ed by our supreme court in Zaderaka, but held that under the specific facts of that case the failure of the Department of Human Rights to apply this standard constituted harmless error. Illinois State Board of Elections, 291 Ill.App.3d at 193, 225 Ill. Dec. 508, 683 N.E.2d at 1016, citing Zaderaka, 131 Ill.2d at 180, 137 Ill.Dec. 31, 545 N.E.2d 684. However, in his dissent, Justice Steigmann concurred with the opinion of the majority that the application of the Equal Pay Act standard instead of the three-part title VII test was done in error, but further dissented from the conclusion of the majority that any such error could have been harmless, finding that in fact, such error involving the erroneous application of burdens of proof could by no means be harmless. See Illinois State Board of Elections, 291 Ill.App.3d at 196-97, 225 Ill.Dec. 508, 683 N.E.2d at 1018-19 (Steigmann, J., dissenting.)
In coming to its conclusion that the three-part test is appropriate to equal pay claims brought under the Human Rights Act (775 ILCS 5/2-102 (West 1994)), in reliance upon our supreme court's decision in Zaderaka, the court in Illinois State Board of Elections rejected the earlier decisions of the appellate courts, which analogized the Human Rights Act (775 ILCS 5/2-102 (West 1994)) to the Equal Pay Act (29 U.S.C. § 206(d)(1) (1994)), stating:
"In cases brought under the [Illinois Human Rights] Act for discrimination in pay based on sex and where apparently no issue was raised as to the allocation of burden of proof, this court has followed the [Equal] Pay Act standard. See Northtown Ford v. Human Rights Comm'n, 171 Ill.App.3d 479, 487[, 121 Ill.Dec. 908], 525 N.E.2d 1215, 1221 (1988); see also McCullar v. Human Rights Comm'n, 158 Ill.App.3d 1011, 1020[, 111 Ill.Dec. 80], 511 N.E.2d 1375, 1381 (1987). * * * However, subsequent to Northtown Ford and McCullar, in a case brought under the [Human Rights] Act concerning age discrimination in hiring, the Supreme Court of Illinois applied the title VII test for the allocation of burden of proof and held the Commission could properly determine that the employer's stated reason for not hiring the complainant there was not a pretext. The supreme court stated that the court would follow the `framework' of title VII in deciding cases of employment discrimination under the [Human Rights] Act. [Zaderaka], 131 Ill.2d [at] 178[, 137 Ill.Dec. 31], 545 N.E.2d [at] 687 * * *." Illinois State Board of Elections, 291 Ill.App.3d at 192-93, 225 Ill.Dec. 508, 683 N.E.2d at 1016.
The court in Illinois State Board of Elections further reasoned:
"As Zaderaka was decided after Northtown Ford and McCullar, we deem that its rationale should be followed here. We see no valid reason why the burden on the employer should be greater in cases involving pay based on sex than in cases brought under the [Human Rights] Act for other types of discrimination. Under federal law, a different allocation of the burden of proof exists for [Equal] Pay Act cases than for those under title VII, but there, at least, different acts are involved, while under Illinois law all types of discrimination are covered by the [Human *1209 Rights] Act." Illinois State Board of Elections, 291 Ill.App.3d at 193, 225 Ill. Dec. 508, 683 N.E.2d at 1016.
We are persuaded by this reasoning. There is no basis upon which to presume that our supreme court would impose two different standards of proof upon the same Act simply because one action involves discriminatory practices with respect to hiring and the other with respect to pay. Nor is there anything in the federal standards which would bind our supreme court to apply such different burdens of proof to a single statute.
Moreover, since the decision in Illinois State Board of Elections, other Illinois appellate courts have treated claims of discrimination based on disparate pay brought under the Human Rights Act (775 ILCS 5/1-101 et seq. (West 2004)) using the three-prong analysis applied in discrimination claims brought under title VII of the Civil Rights Act. See e.g., Anderson v. Chief Legal Counsel, 334 Ill. App.3d 630, 634, 268 Ill.Dec. 272, 778 N.E.2d 258, 262 (2002); accord, Stone v. Department of Human Rights, 299 Ill. App.3d 306, 316, 233 Ill.Dec. 397, 700 N.E.2d 1105, 1112 (1998) (clarifying that in determining whether there was a lack of substantial evidence so as to permit dismissal of a discrimination charge the Department of Human Rights must look to all three prongs of the test).
Consequently, under the aforementioned precedent, we are bound to reject petitioner's contention that the Department of Human Rights erred when it applied the three-prong analysis to the determination of the cause at bar. Zaderaka, 131 Ill.2d at 180, 137 Ill.Dec. 31, 545 N.E.2d 684; Illinois State Board of Elections, 291 Ill. App.3d at 193, 225 Ill.Dec. 508, 683 N.E.2d at 1016; Anderson, 334 Ill.App.3d at 634, 268 Ill.Dec. 272, 778 N.E.2d at 262.
Petitioner contends, however that even if the proper standard was used by the Department of Human Rights, her charge should not have been dismissed where she presented sufficient evidence to establish a prima facie case of discrimination. We disagree.
As already noted above, under the three-step analysis adopted by Zaderaka, in order to avoid dismissal of her claim, petitioner first had the burden of establishing a prima facie case of employment discrimination. To do so here, petitioner had to show that (1) she was a member of a protected group; (2) that she performed her job satisfactorily; (3) that the employer took adverse action against her despite the adequacy of her work; and (4) that a similarly situated employee, who is not a member of the protected group, was not subjected to the same adverse action. Anderson, 334 Ill.App.3d at 634-35, 268 Ill.Dec. 272, 778 N.E.2d at 262.
In the present case, the chief legal counsel agreed with the Department's determination that petitioner established a prima facie case in her charge of discrimination. Petitioner established that, as a woman, she is a member of a protected group. Notwithstanding some evidence to the contrary, petitioner sufficiently alleged that she performed her job for the IDCEO satisfactorily and that despite the adequacy of her work she was subjected to lower pay than two similarly situated male employees, Barry and Streicker, for work that required the same skills and effort.
Having established her prima facie case, the burden shifted to the IDCEO to articulate, but not prove, a reason for the disparate pay. The IDCEO carried its burden of production by stating that petitioner and the two male comparatives (Barry and Streicker) were not similarly situated employees because the two men held different positions and were hired to perform different *1210 duties than those of petitioner, which required more skill and involved greater responsibility. The burden then shifted back to petitioner to prove that the IDCEO's reasons were a pretext for discrimination.
Petitioner contended that the IDCEO's reason was a pretext for discrimination because she in fact performed the same duties as Barry and Streicker and was far more experienced than they were. Specifically petitioner contended that her first duty after Barry and Streicker were hired was to train them. Moreover, once Barry and Streicker were hired and the IDCEO reorganized to permit one attorney to head a bureau, petitioner was given first pick of bureaus because of her seniority. Petitioner failed to prove, however, how her training of the new male employees and her first pick of bureaus was connected to her level of compensation. See Hodgson v. Brookhaven General Hospital, 436 F.2d 719, 725 (5th Cir.1970) ("[J]obs do not entail equal effort, even though they entail most of the same routine duties, if the more highly paid job involves additional tasks which (1) require extra effort, (2) consume a significant amount of the time of all those whose pay differentials are to be justified in terms of them, and (3) are of an economic value commensurate with the pay differential").
In fact, the Department's investigation revealed that Barry and Streicker were both hired as SPSAs, a position supervisory to that of petitioner, and one that required far more skill and responsibility than the position held by petitioner. Specifically, the job descriptions for a PSA established that the PSA's duties included, inter alia, (1) providing advice and recommendations with respect to collection of business development loans, confidential negotiation of workout and settlement agreements, and bankruptcy negotiations; (2) providing legal advice with respect to the [IDCEO's] collection policies; (3) drafting and negotiating conditions and terms of loan agreements; (4) performing confidential work for senior management relating to internal programs and activities, issuing opinions with respect to conflict of interest questions, statutory interpretation, and pending legislation; and (5) acting as a hearing officer for departmental representatives in administrative hearings and appeals brought pursuant to the Illinois Administrative Procedure Act, departmental rules or federal regulations. On the other hand, the job description for an SPSA revealed that the SPSA was responsible for, inter alia, (1) supervising subordinate staff (including PSAs), in the assignment of duties and litigation, by planning, assigning, prioritizing, coordinating evaluating, reviewing and maintaining records of performance of subordinates and providing appropriate training, technical assistance and coaching for subordinates; (2) approving time off, promotions, demotions disciplinary actions, and attempts to resolve grievances for all subordinate staff; (3) counseling the agency director, deputy directors and division managers on legal issues, policies and procedures and matters affecting operations of the IDCEO's programs (such as drafting, revising, amending and reviewing complex commercial agreements, including e.g., loans, royalty and equity agreements; formulating procedures by directing and reviewing legal research on federal and state laws, and proposed legislation, that affect state and federally funded programs administered by the IDCEO); and (4) acting as the primary hearing officer for the IDCEO and representing the agency before the Department of Human Rights in fact-finding conferences.
Moreover, in her interview with the Department's investigator, Jiganti stated and petitioner offered no proof to rebut the *1211 contention that Streicker was specifically hired by the IDCEO to create and run the Grant Funds Recovery Program, which included putting procedures in place to establish a formal hearing process, as well as to head the Base Realignment and Closure Commission project, which involved evaluating candidates, drafting contracts, and working with consultants to organize a publicity launch of the program.
More overridingly, the Department's investigation revealed that in setting the salaries for petitioner, Streicker and Barry, the IDCEO adhered to the CMS pay plan which set the pay scale for SPSAs between $49,560 and $116,460, and the PSA scale between $35,952 and $78,696, as well as section 310.490 of title 80 of the Illinois Administrative Code (80 Ill. Adm.Code § 310.490, amended at 20 Ill. Reg. 15018, eff. November 7, 1996), which permits the employer to give an incoming employee a salary increase up to 10% of the employee's last prior salary. The investigation revealed that Streicker, Barry, and petitioner were all hired at salaries within the pay scale permitted by CMS for the positions for which they were employed.[15] The Department's investigation also revealed that of the three employees, petitioner had received the greatest percentage increase in her salary when first hired by the IDCEO (i.e., petitioner received a salary increase of 10.53%, which was in excess of the 10% maximum salary increase permitted under the Administrative Code, while both Streicker and Barry accepted substantial pay cuts when employed by the IDCEO).
Moreover, the Department's investigation revealed that there was no evidence of sex animus, because a female SPSA, Kathleen Bruns, who would have been more similarly situated to the male comparatives Barry and Streicker, had been paid more than both men.
Consequently, under the three-part test in Zaderaka, petitioner did not satisfy her burden to establish that the reasons given by the IDCEO to explain the differential in her pay was pretextual. Therefore, the Department's chief legal counsel did not abuse her discretion by sustaining the Department's dismissal of petitioner's charge of sex discrimination based on disparate pay. See Anderson, 334 Ill.App.3d at 634, 268 Ill.Dec. 272, 778 N.E.2d at 262 (holding that the chief legal counsel did not abuse his discretion in affirming the Department of Human Right's dismissal of a female petitioner's charge of sex discrimination based on disparate pay, where the record established that employer's reasons for the pay differential, i.e., that the female petitioner and the male employee with the same job title had substantially dissimilar experiences, duties, and responsibilities, constituted a legitimate, nondiscriminatory reason for the disparity).
Petitioner nevertheless asserts that the chief legal counsel's decision was made in error because it was based on credibility determinations made by the chief legal counsel in violation of the Seventh Circuit's decision in Cooper v. Salazar, 196 F.3d 809 (7th Cir.1999). In Cooper, 196 F.3d at 814-15, plaintiffs filed a class action suit asserting a due process challenge to the then new amendments to the Illinois Human Rights Act (775 ILCS 5/2-101 et seq. (West 1996)), which permitted *1212 the Department of Human Rights to make credibility determinations at the investigatory stage of the proceedings. Cooper, 196 F.3d at 814. The district had court entered an injunction against the Department of Human Rights prohibiting it from making credibility determinations in the course of its investigation, and the Seventh Circuit upheld the injunction. Cooper, 196 F.3d at 814-15. In doing so, the Seventh Circuit made clear that it did not make any determinations as to whether the procedures of the Department of Human Rights violated due process, but simply found that because it was not clear whether the Department had a purely investigatory or mixed investigatory-adjudicatory function, there were concerns regarding due process that vitiated a preliminary injunction. Cooper, 196 F.3d at 815.
In the present case, citing to Cooper, petitioner asserts that in lieu of the documents she submitted to the Department of Human Rights, namely, the briefs and opinion rendered by the IDOL in her separate claim before that agency asserting a violation of the Illinois Pay Act, wherein the IDOL determined that petitioner's job was interchangeable with that of Streicker and Barry, the chief legal counsel could not have determined that petitioner, Barry and Streicker were not similarly situated. The IDCEO responds that the decision of the chief legal counsel did not rest on any credibility determinations but was rather borne out by the documentation submitted to the Department's by the parties. We agree.
The record below reveals that there was ample documentation presented by the IDCEO which unequivocally established that (1) as part of their job descriptions, PSAs and SPSAs were required to perform different duties, which required varying levels of skill and experience, and (2) that the salary determinations at the IDCEO were made according to a CMS pay plan. Petitioner offered no evidence to contradict the job descriptions, apart from her own general characterizations of the legal work she performed, and the attached decision of the IDOL, which indicated that the work performed by petitioner and the two men was comparable. Petitioner, however, herself, conceded that the IDOL decision that she relied on was subsequently overturned by a later decision of that agency. In any event, as the chief legal counsel correctly noted, although the decision of the IDOL was reviewed by the Department, it was in no way binding on the Department's decision as the two agencies are governed by different statutes, with different burdens of proof, and a decision made by the IDOL has no bearing on the outcome of the Department's own investigation. Accord, Illinois State Board of Elections, 291 Ill. App.3d at 192-94, 225 Ill.Dec. 508, 683 N.E.2d 1011.
Moreover, as already noted above, the decision of the chief legal counsel that there was no substantial evidence of gender based animus in the IDCEO's action was predicated predominantly on the voluminous salary records of all the employees working for the IDCEO in the relevant time period, which revealed, inter alia: (1) that Barry, Streicker and petitioner were all paid salaries which fell within the CMS pay plan requirements for the particular position that each employee held within the IDCEO; (2) that Kathleen Bruns, an SPSA, was paid more than either male SPSA Streicker and Barry; and (3) that upon initial employment, petitioner had been given a greater percent increase in her salary than any other employee in the IDCEO. Consequently, there is nothing in the record to suggest that the chief legal counsel or the Department of Human *1213 Rights made credibility determinations in the investigative proceedings.
Petitioner finally takes issue with the amount of time that elapsed between the remand orders entered by the chief legal counsel and the subsequent investigation addendum reports issued by the Department of Human Rights. Specifically, petitioner contends that the Department's final addendum report was improper because it was "rushed," i.e., made "hurriedly and summarily" only four days after the chief legal counsel's second reversal of the Department's dismissal, and without any further investigation. Petitioner speculates that the reason why the last addendum was entered so quickly was the fact that the Department of Human Right's allowable 365-day period in which an investigation must be completed was about to elapse the following day, which would have permitted petitioner the right to bring her case before the Human Rights Commission.
We first note, however, that contrary to petitioner's assertion, our review on appeal is limited to reviewing "the [c]hief [l]egal [c]ounsel's decision, not the decision of the Department of Human Rights." (Emphasis omitted.) Deen, 337 Ill.App.3d at 302, 271 Ill.Dec. 589, 785 N.E.2d at 529; see also Kalush v. Department of Human Rights Chief Legal Counsel, 298 Ill.App.3d 980, 990, n. 4, 233 Ill. Dec. 31, 700 N.E.2d 132, 139 (1998) ("we review only the determination of the chief legal counsel.)" See 775 ILCS 5/7-101.1(A), 8-111(A)(1) (West 1996); Traficano v. Department of Human Rights, 297 Ill.App.3d 435, 231 Ill.Dec. 818, 697 N.E.2d 372 (1998); Parham v. Macomb Unit School District No. 185, 231 Ill.App.3d 764, 173 Ill.Dec. 313, 596 N.E.2d 1192 (1992). It is the chief legal counsel who determines the sufficiency of the Department's investigation. See Gayle v. Human Rights Comm'n, 218 Ill.App.3d 109, 161 Ill.Dec. 17, 578 N.E.2d 144 (1991) (discussing power of Human Rights Commission to review sufficiency of Department's investigation under section 8-103 (775 ILCS 5/8-103 (West 1994)), a power now delegated to the chief legal counsel under section 7-101.1 (775 ILCS 5/7-101.1 (West 1996))).
In any event, we note that the record reveals that petitioner's charge remained pending before the Department of Human Rights for two years and eight months, during which her claims were subject to an initial investigation, and two addendum's to that investigation following remands from the chief legal counsel. Moreover, the record reveals that in her affidavit attached to the last request for review by the chief legal counsel, petitioner admitted that after the chief legal counsel's final remand for further investigation, she refused the Department's request to extend the investigation period. Although petitioner's affidavit also states that during that time, she had indicated to the Department's investigator that she was "ready, willing and able to meet with [the investigator] and/or provide any information that would allow [the investigator] to complete the investigation as defined by the chief legal counsel in the remand order," petitioner nowhere in her request for review, or here on appeal states that she actually had additional evidence to provide to the investigator during any of the remands. Petitioner nowhere identifies a single piece of additional evidence she wished to present during the remand investigations, or that she offered particular additional evidence that was not accepted by the investigator. As such, petitioner's contention must fail. See Parham, 231 Ill.App.3d at 771, 173 Ill.Dec. 313, 596 N.E.2d at 1197 ("inferences of fact based on imagination, speculation, and conjecture cannot stand *1214 as a matter of law"); see also Kalush, 298 Ill.App.3d at 995, 233 Ill.Dec. 31, 700 N.E.2d at 142 (same).
III. CONCLUSION
For the foregoing reasons, the order of chief legal counsel of the Department of Human Rights dismissing petitioner's charge is affirmed.
Affirmed.
CAHILL, and McBRIDE, JJ., concur.
NOTES
[1] We note that the record on appeal does not contain all the relevant pleadings with respect to petitioner's claim before the IDOL, but merely contains bits and fragments of those proceedings. In addition, although petitioner specifically fails to attach the final order of the IDOL dismissing her claim under the Illinois Pay Act, she concedes that the final order of that agency found in favor of the IDCEO.
[2] We note that petitioner's charge also alleged violations of both the Equal Pay Act of 1963 (29 U.S.C. § 206(d)(1) (2000)) and title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000a et seq. (2000)). However, because petitioner did not raise these issues in the Department of Human Rights below, nor raises them here on appeal, we need not discuss them in detail. Moreover, we note that throughout its order sustaining the Department's dismissal of petitioner's charge, the chief legal counsel referred to petitioner's action as one brought under section 2-102(A) of the Human Rights Act (775 ILCS 5/2-102(A) (West 2004)).
[3] The salary range for the SPSA position was the same at the time Boron and Streicker were employed.
[4] At the time Davis was first hired as a PSA in June 2003, the PSA vacancy announcement indicated that the salary range for the position was $35,952 through $78,696.
[5] We note that with respect to the substance of petitioner's allegations of unequal pay, the first addendum to the investigation report reveals that petitioner offered no additional evidence with respect to her charge of discrimination, while the IDCEO submitted additional documentation, revealing the following: (1) Streicker was hired on February 17, 2004, as an SPSA with a probationary term appointment which was to expire on February 16, 2008, and that on October 14, 2005, he was promoted to acting general counsel for the IDCEO with a salary adjustment; and (2) that Barry was hired on February 25, 2004, as an SPSA with a probationary term appointment that was to expire on February 14, 2008, and that he resigned from the IDCEO on October 14, 2005.
[6] In this respect, we note that the investigation report revealed that no additional witness information or exhibits were considered and that petitioner offered no new evidence with respect to her claim.
[7] The rule states in pertinent part that in her brief an appellant must include "a brief, but precise statement or explanation under the heading `Jurisdiction' of the basis for appeal including the supreme court rule or other law which confers jurisdiction upon the reviewing court; the facts of the case which bring it within this rule or other law; and the date that the order being appealed was entered and any other facts which are necessary to demonstrate that the appeal is timely. * * * All facts recited in this statement shall be supported by page references to the record on appeal." (Emphasis added). 210 Ill.2d R. 341(h)(4)(ii).
[8] The rule states in pertinent part that in her brief an appellant must include a "Statement of Facts, which shall contain the facts necessary to an understanding of the case * * * and with appropriate reference to the pages of the record on appeal * * * or to the pages of the abstract." 210 Ill.2d R. 341(h)(6).
[9] The rule states in pertinent part that in her brief appellant shall include an "Argument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on. Evidence shall not be copied at length, but reference shall be made to the pages of the record on appeal or abstract, if any, where evidence may be found." (Emphasis added). 210 Ill.2d R. 341(h)(7).
[10] This rule states in relevant part: "The appellant's brief shall include, as an appendix, a table of contents to the appendix, a copy of the judgment appealed from, any opinion, memorandum, or findings of fact filed or entered * * * by any administrative agency or its officers, any pleadings or other materials from the record which are the basis of the appeal or pertinent to it, the notice of appeal, and a complete table of contents, with page references, of the record on appeal." (Emphasis added). 210 Ill.2d R. 342(a).
[11] This statute states in pertinent part:
"It shall be unlawful employment practice for an employer
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin[.]" (Emphasis added.) 42 U.S.C. § 2000e-2(a)(1) (2000).
[12] This statute provides in relevant part:
"No employer * * * shall discriminate * * * between employees on the basis of sex by paying wages to employees * * * at a rate less than the rate at which he pays wages to employees of the opposite sex * * * for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions." (Emphasis added.) 29 U.S.C. § 206(d)(1) (2000).
[13] We note that to establish a prima facie case of employment discrimination, petitioner must show that (1) she is a member of a protected group; (2) that she performed her job satisfactorily; (3) that the employer took adverse action against her despite the adequacy of her work; and (4) that a similarly situated employee, who is not a member of the protected group, was not subjected to the same adverse action. Anderson, 334 Ill. App.3d at 634, 268 Ill.Dec. 272, 778 N.E.2d at 262.
[14] See Northtown Ford v. Human Rights Comm'n, 171 Ill.App.3d 479, 487, 121 Ill.Dec. 908, 525 N.E.2d 1215, 1221 (1988), and McCullar v. Human Rights Comm'n, 158 Ill. App.3d 1011, 1020, 111 Ill.Dec. 80, 511 N.E.2d 1375, 1381 (1987).
[15] In that respect, we note that any argument raised by petitionerboth before the Department of Human Rights and again here on appealthat an employee's prior salary history and an agency's compliance with the CMS pay plan (permitting a 10% increase in starting salary) are inappropriate considerations because of historic disparities in pay for men and women has been outright rejected in authority which she herself cites. See Wernsing v. Department of Human Services, 427 F.3d 466, 467, 469-70 (7th Cir.2005). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2261011/ | 632 F.Supp. 908 (1986)
In the Matter of Arthur Daniel DEMPSEY.
No. C-84-6748 RFP.
United States District Court, N.D. California.
January 27, 1986.
*909 John Penrose, Asst. U.S. Atty., San Francisco, Cal., for plaintiff.
Arthur D. Dempsey, San Francisco, Cal., pro se.
MEMORANDUM AND ORDER
PECKHAM, Chief Judge.
INTRODUCTION
On October 15, 1984, this court issued to Arthur Daniel Dempsey an order to show cause why he should not be disbarred for incompetent and unprofessional behavior before this court. A hearing was held on September 17, 1985, at which time Mr. Dempsey responded to charges of more than twenty specific examples of incompetence or misconduct.
*910 This court has reviewed the evidence and finds that Mr. Dempsey did, in fact, engage in conduct inappropriate for an attorney practicing before this court. The court, therefore, suspends Mr. Dempsey from the roll of attorneys entitled to practice before this court until such time as he has completed the course of remediation described in detail below.
PROCEDURAL HISTORY
In the summer of 1979, Bernard Altamirano was brought to trial on four counts of distribution of heroin, two counts of assault on a federal officer with a deadly weapon, and one count of being an ex-felon in possession of a firearm. Altamirano's family retained the legal services of Mr. Edward Solomon, who in turn hired Mr. Dempsey. Although both attorneys were of record, Mr. Dempsey acted as lead counsel in all court appearances.
Over the course of pretrial and trial appearances, it became apparent that Mr. Dempsey was not familiar with trial practice before the federal courts. He failed to notice motions in accordance with local rules, attempted to subpoena witnesses in an improper manner, consistently made improper or unintelligible objections to the prosecutor's questions or to opposing testimony, and generally conducted himself in a manner that caused the trial judge to question his competence on more than one occasion.
Mr. Dempsey's behavior was also disrespectful to the court. He ignored the court's rulings on objections, insisted on rearguing old motions, made several inappropriate aside remarks in the presence of the jury, and engaged in heated arguments with the trial judge. The trial judge constantly issued warnings to Mr. Dempsey about his behavior. He twice cited Mr. Dempsey for contempt, and had Mr. Dempsey ushered out of the courtroom on another occasion. The contempt fines were later lifted when Mr. Dempsey made some effort to restrain himself.
Altamirano was convicted on all counts, and appealed his conviction on the ground that he had been denied effective assistance of counsel. The Ninth Circuit found that Mr. Dempsey had conducted himself throughout the trial in an incompetent and unprofessional manner, see United States v. Altamirano, 633 F.2d 147, 149-50 (9th Cir.1980), but held that Altamirano was not prejudiced by that conduct, id. at 153. At the end of its opinion, the Ninth Circuit recommended that this court institute proceedings to have Mr. Dempsey removed from the roll of attorneys admitted to practice before this court. Id. at 154.
An order to show cause was first issued on November 4, 1980. That proceeding was stayed, however, to allow the State Bar to investigate Mr. Dempsey's qualifications. The State Bar completed its investigation, but took no action. On October 15, 1984, a second order to show cause was issued, and the matter was heard on September 17, 1985.
FINDINGS OF FACT
In this section, the court will review the specific examples of unprofessional conduct and/or incompetence with which Mr. Dempsey is charged. It should be noted, however, that Mr. Dempsey was not charged with every instance of misconduct or incompetence that is reflected in the Altamirano trial transcript ["AT"]. Only after reviewing the transcript can one appreciate the disasterous effect an attorney such as Mr. Dempsey can have on the orderly progression of court proceedings. The Altamirano trial was constantly interrupted while the judge attempted to maintain order and control Mr. Dempsey's outbursts. The court often had to repeat rulings on Mr. Dempsey's meritless motions and indecipherable objections. And, in the interest of ensuring a fair trial, the judge gave Mr. Dempsey the benefit of every doubt, and often spent time explaining to Mr. Dempsey basic rules of evidence and criminal procedure. The twenty-two charges are only a sampling of the many instances found throughout a record that reflects Mr. Dempsey's shocking inability *911 or unwillingness to conduct himself in an appropriate manner.
Unfounded suggestion in pretrial proceedings that federal proceedings were proceedings "removed" from state court.
During pretrial proceedings on June 28, 1979, Mr. Dempsey made a motion for discovery based on an order issued by a municipal court judge in state proceedings involving the same events as the federal charges. When the court expressed disinterest in the state court proceedings, Mr. Dempsey argued, "Well, this man was removed to this court." (AT 4).
At the disbarment hearing, Mr. Dempsey explained that he merely meant that Altamirano was removed from state custody into federal custody, as was the evidence (Hearing Transcript ["HT"] 3). However, the record shows that Mr. Dempsey was unable to grasp the distinction between the two proceedings. He insisted that Altamirano had been removed to the court, and had lost rights by his "removal" (AT 5-6). He also asserted, in spite of the court's explanation that it had no jurisdiction over state court proceedings, that "it's the same case by the way." (AT 6). This court finds that Mr. Dempsey's explanation is unpersuasive, and that there is sufficient evidence that Mr. Dempsey did not understand that the state proceedings were not binding upon or relevant to the federal proceedings.
Inadequate understanding of Rule 16 of the Federal Rules of Criminal Procedure.
Rule 16 of the Federal Rules of Criminal Procedure details the type of information that the government and the defendant must disclose to each other in preparation for a criminal trial. At the June 28, 1979 hearing, the court heard Mr. Dempsey's motion for discovery of, inter alia: the names, addresses, and statements of witnesses who might be called to testify against the defendant; and transcripts of the grand jury proceedings at which the defendant had not testified. The court denied the motion, informing Mr. Dempsey that he had asked for materials to which the defendant was not entitled under Rule 16 (AT 3-4). See Fed.R.Cr.P. 16(a)(2), 16(a)(3).
In spite of this ruling, Mr. Dempsey continued to argue the motion on the ground that he would have been entitled to the discovery in state court (AT 4). He also made factual assertions about discrepancies in the evidence, and the unwillingness of the San Francisco Police to discuss the case with him (AT 7). When the court asked for affidavits or declarations supporting these factual allegations, Mr. Dempsey admitted that he had filed none (AT 7-8). The court then denied the motion on the additional ground that Mr. Dempsey had failed to follow local rules in regard to making factual assertions (AT 8-9).
When Mr. Dempsey continued to ignore the fact that the court had ruled on his motion, the court admonished him to comply with the ruling, and suggested that Mr. Dempsey "read the rules sometime and become qualified to practice in this court" (AT 9). Mr. Dempsey continued to argue the motion, while the court tried to educate him regarding the limits of Rule 16, and the nature of an indictment by a grand jury (AT 9-10). Finally, after Mr. Dempsey admitted that he had not recently tried a criminal case in federal court, the court suggested that he contact the federal public defender's office for assistance (AT 25-26).
At the disbarment hearing, Mr. Dempsey again tried to explain the basis of his motion, asserting that he was only trying to get evidence his client was entitled to because it had been gathered by the San Francisco Police Department. He stated, "After all, my client is a taxpayer in California. My client is a citizen. He has a right to look at evidence that was in the hands of the police." (HT 7-8). Mr. Dempsey also asserted that "[n]obody would hear the motion, because they just wouldn't shorten time for [him]." (HT 8). But the record reflects that the trial court heard and ruled on the merits of Mr. Dempsey's *912 motion in spite of his failure to comply with local rules. The record also shows, and this court finds, that Mr. Dempsey did not understand Rule 16, even in its simplest applications.
Confused arguments concerning motions leading to court's suggestion that counsel might be removed.
At a hearing on July 19, 1979, Mr. Dempsey brought another motion for discovery and a motion to suppress evidence. Both motions were denied because Mr. Dempsey had failed to comply with local rules regarding notice. Mr. Dempsey had filed the motions three days before the hearing, without asking for an order shortening time. The court noted that it had not been able to get Mr. Dempsey to comply with local rules, and stated that it was thinking of removing Mr. Dempsey from the case "for being a rather incompetent counsel." (AT 59).
Thereafter, the following exchange occurred between Mr. Dempsey and the court:
The Court: You will not observe [the rules].
Mr. Dempsey: It's not that. It's just that I have filed in this case seven motions and one writ.
The Court: And
Mr. Dempsey: The United States Attorney hasn't even filed one paper, or, indeed made an argument. Every time I come up here, I end up arguing with your honor. The United States Attorney stands with his arms folded.
The Court: The United States Attorney The United States Attorney would be perfectly justified if he came in and moved to strike these so-called motions of yours for noncompliance with the rules of this court.
Mr. Dempsey: Well, let's do it and then you can deny them and we'll start the trial. I mean, that's That's my thought. I mean
The Court: Well, I'm going to deny them.
Mr. Dempsey: Good. Thank you.
(AT 59-60). And with respect to the requirement of notice to the United States Attorney, Mr. Dempsey argued: "Why do I have to give notice to the United States Attorney when he knows the date, he knows the motion's going to be made, and, indeed, he probably knows what the motions are going to be based on." (AT 60).
At the disbarment hearing, Mr. Dempsey's defense was much the same: "Why does [the United States Attorney] need twenty days notice of a motion that he set the date for in the first place? I don't have to tell him the motion is going to be next Tuesday. He knows the motion is going to be next Tuesday." (HT 6). This court finds that Mr. Dempsey's continued failure to abide by local rules was a symptom of incompetence. Moreover, his argument to the court regarding his failure to abide by those rules was not only meritricious, but was also sarcastic and disrespectful to the court.
Unprofessional insistence on rearguing points already ruled on by trial court.
Mr. Dempsey tried to bring the motions again on July 30, 1979. The trial court reminded Mr. Dempsey that it had denied those motions on the merits as well as on procedural grounds, but agreed to rule on them again later that week when the notice requirement had been met. When asked a question about a new motion to suppress a taped interview of the defendant, Mr. Dempsey responded with argument on the previously denied motions. He stated:
May I say, since I came in this case I have made nine motions and I have answered [sic] the two same questions. But he wants to create a question, nobody wants to answer the questions they've been asking since June 26, which are going to have to be answered sooner or later. And those two questions are this:
The first question is: Number one, where the government impounds documents that come in a state court, can the government keep those private if there is an order of a state court giving them to the defendant or are they property *913 of the defendant that he may have under Rule 16? First question, never answered.
The second question is: Can the defendant be brought from a state court into a federal court with the delay that's gone on here and tried in a national tribunal for what amounts to a common law crime? What are the answers? (AT 89).
When told by the court that the answer to the latter question was "Yes," Mr. Dempsey responded that there was a law review article that said the question had never been answered (AT 90).
At the disbarment hearing, Mr. Dempsey admitted that he did not know the local rules regarding notice, and defended himself by saying, "I have never claimed to be a copy of Moore's Federal Practice with legs on." (HT 9). This court finds that Mr. Dempsey's arguments reflect his lack of familiarity with Rule 16, his inability to separate the state and federal proceedings, and his lack of competence to try criminal cases in federal court. The court also finds his insistence on rearguing old motions, instead of responding to the court's questions on the motion before it, unprofessional as well as further evidence of incompetence.
Unprofessional conduct and argument to trial judge.
On August 2, 1979, Mr. Dempsey again brought a motion seeking discovery. At that hearing, Mr. Dempsey accused the government of instructing witnesses not to talk to the defense (AT 96-97). Mr. Dempsey had no evidence to support that accusation other than his own affidavits, which were not based on personal knowledge (AT 98). And, in spite of Mr. Dempsey's continued protestations that the defense did not have access to evidence in the government's possession, Mr. Dempsey could not specify any item of evidence to which he was entitled under Rule 16 that he had been denied (AT 102-03).
It also became evident that Mr. Dempsey was asking for discovery of police investigative reports that were not in the government's possession (AT 106). The court had to explain, once again, that, other than its power to issue a subpoena, it had no control over San Francisco police officers (AT 106-07). This did not impress Mr. Dempsey who felt that it "wouldn't hurt anything" for the trial court to order that certain San Francisco police officers talk to him, so that he could avoid making out subpoenas (AT 113).
Mr. Dempsey's motion to suppress was also brought on the basis of the delay between defendant's arrest by police and his indictment by the federal grand jury. Again, Mr. Dempsey was unable to distinguish between the point at which defendant was in police custody, and the point at which he came to be in the custody of the United States (AT 108-09). Finally, frustrated at the incoherence of Mr. Dempsey's argument, the court denied the motion on its merits. Mr. Dempsey continued to try to make an argument based on California rules of criminal procedure and Miranda (see below), provoking laughter in the courtroom, and forcing the judge to state his ruling again (AT 109-10).
Mr. Dempsey's comments at the hearing were unresponsive to this charge. The written response filed on his behalf merely states that he was attempting to bring the difficulties he was experiencing in his investigation to the court's attention. See Response to Order, at 5. This explanation is inadequate in light of Mr. Dempsey's inability to understand the limited jurisdiction of the federal court and the distinction between federal and state proceedings. The court finds that Mr. Dempsey's conduct was evidence of incompetence. And Mr. Dempsey's request that the court issue an order it had informed him would be improper was unprofessional.
Motion based on farfetched application of Miranda.
In the process of arguing the motion to suppress, Mr. Dempsey tried to show a violation of Rule 5, Fed.R.Cr.P. 5 (Initial Appearance before the Magistrate), by making the following argument:
*914 Obviously when a man is arrested, under our procedures, he has to be brought before a magistrate. Under California law, within 72 hours. That's what happened here. That's how he got into state custody. He was in 72 hours, he was arraigned before a magistrate even though he was in the hospital, and that proceeding started the United States government and, as I understand the federal rule, under our procedure, a man has to be given a Miranda warning by a police officer under the federal procedure, and that morning he must be given it by a magistrate.
He didn't get a warning by a magistrate for two months and that violates the rule number 5. Well, doesn't it? (AT 110).
This argument speaks for itself and is further evidence of Dempsey's incompetence to practice before this court. At the disbarment hearing, he agreed with the charge, but proceeded to explain one of his other farfetched fourth amendment arguments. His excuse was that the defendant wanted the argument made and he had no choice (HT 10). This court recognizes that attorneys in criminal cases are given more latitude in defending their clients than attorneys in civil cases. However, even motions that border on being frivolous must have some basis in logic. Mr. Dempsey cannot be absolved of responsibility for his incompetence merely by asserting that his client wanted him to make an argument. Finally, the argument that Mr. Dempsey suggests that his client wanted him to make is not the one that generated this charge.
Improperly tendered jury instructions.
In preparation for trial, Mr. Dempsey tendered 87 jury instructions. Some of the instructions failed to indicate the supporting authority, and many were overlapping instructions. Mr. Dempsey's defense is that it is the judge's responsibility to determine which instructions are relevant (HT 11). The trial judge does, of course, have the ultimate responsibility to determine which jury instructions will be given; but an attorney may not submit jury instructions without taking some responsibility for their relevance to the case being tried.
Without more, this particular offense would be more of a nuisance than an example of conduct deserving professional sanction. Nevertheless, such conduct adds weight to this court's previous findings that Mr. Dempsey's performance was generally substandard.
Unprofessional confrontation with trial judge concerning the proper manner to subpoena witnesses.
On August 27, 1979, the morning that trial was to begin, Altamirano indicated that he no longer wanted Mr. Dempsey to represent him (AT 121-26). One of the reasons Altamirano gave for wanting a new attorney was that "not all the right witnesses ha[d] been contacted" (AT 124). Mr. Dempsey complained that he had not been able to get the Marshal to serve papers; but admitted that he had not yet filed an In Forma Pauperis affidavit (AT 126-27). The court explained that since Mr. Dempsey was retained counsel, it was especially important for him to file the affidavit, because the Marshal could not serve any papers without it (AT 127). Mr. Dempsey responded:
May I finish what I am saying? You know part of the problem here has been the court's continually jumping on me and telling this man that we don't know what we're doing. I've said that to the Ninth Circuit. There's a writ up in the Ninth Circuit sitting in there now. Every time we walk into this courtroom (AT 127).
He resisted the court's attempts to get him to listen, until the court finally stated, "There will not be this kind of colloquy now, let me warn you, because if you don't want to get into some difficulty, let's avoid that." (AT 127-28).
At the disbarment hearing, Mr. Dempsey stated that his witnesses had come, in spite of being improperly subpoenaed, but that the United States Attorney had told them they did not have to stay (HT 12-13). He claimed that all of his witnesses then left *915 the courtroom, and that he was not able to get some of them back (HT 13-14). The record tells a different story. It reflects the patience with which the trial judge questioned Mr. Dempsey about what he needed from each witness, and the assistance the judge gave Mr. Dempsey in obtaining that information before each witness was excused (139-53, 310-44).
Mr. Dempsey also told this court that he had served the witnesses himself because he was very suspicious of the "fellow" in the Marshal's office (HT 13). He continued:
All right. I know maybe that wasn't the proper thing to do, but I went out and served them. That is not the first time I have done that. I have served subpoenas beyond the 150 mile limit in state courts. I have done this before. But how I get witnesses into court is my problem. If I put them in a barrel, if I tie them up, If I trick them in here, once here in this courtroom, they are my witnesses. I don't care how what anybody says, those were my witnesses. And I had them here in this court and I got them here (HT 13).
This court finds that Mr. Dempsey's comments to the Altamirano court were disrespectful and unprofessional. The court is also disturbed about Mr. Dempsey's unsubstantiated factual assertions about interference with defense witnesses made both during the trial and at the disbarment hearing. Finally, the court takes note of Mr. Dempsey's lack of ethics in obtaining witnesses and his inability to adhere to established rules of procedure.
Unprofessional conduct regarding the payment of fees to serve subpoenas.
On August 19, 1979, before trial began, the matter of improperly subpoenaed witnesses was before the Altamirano court again. The United States Attorney brought the witnesses forward as a courtesy to the court (AT 310-11). Mr. Dempsey complained that there was great irregularity in the fact that the United States Attorney was "interfering" with subpoenaed witnesses (AT 312). The trial court attempted to explain the proper method of subpoenaing witnesses, and informed Mr. Dempsey that he could not subpoena witnesses without paying one day's witness fees and expenses (AT 312-13).
The court then tried to ameliorate the problem, by asking Mr. Dempsey what he needed from each witness. After he made sure that Mr. Dempsey had gotten the information that he wanted, the judge excused the witnesses (AT 318-40). Mr. Dempsey asserted that he thought the government was supposed to pay witness fees in criminal cases, but was corrected by the trial court. Mr. Dempsey then stated that he did not have the money to pay for witnesses (AT 347). When the court reminded him that he had, in his own words, been "paid a substantial fee," Mr. Dempsey contradicted that statement and asked to be let out of the case. He also stated, "After all, the law is a business. I'm sure if Your Honor wasn't paid or the United States Attorney wasn't paid your salaries, you wouldn't be here. I don't know why I have to subsidize the government." (AT 347-48).
Mr. Dempsey's explanation at the disbarment hearing was much the same. He argued, "Let me tell you something. In that courtroom ... we were up to our ears in $35,000 a year clerks, $50,000 a year United States Attorneys standing around in $200 suits. Who do you think pays our office rent? Who supports our families?" (HT 14). This court finds Mr. Dempsey's comments irrelevant and unprofessional. They do not excuse his failure to properly subpoena witnesses. That failure was based on Mr. Dempsey's lack of familiarity with the proper procedures, and his misguided assumption that the government would pay for his client's witnesses.
Unprofessional aside remark in presence of jury followed by finding of contempt.
Once trial began, Mr. Dempsey's performance was characterized by improper objections interspersed with proper objections, improper colloquy, and sarcasm. The court asked Mr. Dempsey to desist *916 from making asides and engaging in colloquy. At one point the court asked whether Mr. Dempsey had further questions for a prosecution witness. Mr. Dempsey indicated that he had none, then changed his mind and became agitated when the witness was excused. When the prosecution called the next witness, Mr. Dempsey commented, "Your Honor, I know how anxious the District Attorney [sic] is to clang the prison doors behind my poor client, but I mean, just a minute, if you mind." (AT 547). At that point the court warned Mr. Dempsey that any more gratuitous statements would result in a finding of contempt (AT 547). But Mr. Dempsey refused to restrain himself, and was finally cited for contempt (AT 548).
Thereafter, Mr. Dempsey tried to impeach the excused witness, complaining that he had not had an opportunity to play a taped conversation. The judge reminded Mr. Dempsey that he had stated that he had no further questions of the witness, and tried to ascertain the gist of Mr. Dempsey's complaint. Mr. Dempsey stated that he was trying to use his notes of the taped conversation to let the jury hear how different the witness's statement in court was from his prior statements. The following exchange then ensued:
The Court: Mr. Dempsey, will you, for heaven's sake, desist from making those gratuitous statements? I have never had the experience of having a lawyer who insisted on a stream of chatter when he was addressing the court on serious matters that affected his client's defense.
Mr. Dempsey: Your Honor, I'm not unmindful of of the serious trouble I can be in. But, on the other hand, I'm not fearful, either. Because I'm here to represent Mr. Altamirano. And if I have to go to jail to represent Mr. Altamirano, I'm perfectly willing to do so. I wouldn't like to have to, but I'll do it. But the thing is, what's happened here is and I think everybody can hear my voice
The Court: Mr. Dempsey, I'll not have another word from you on that.
Mr. Dempsey: All right.
The Court: Now, if I have to, I'll give you a second [contempt] citation.
Mr. Dempsey: All right.
The Court: Now just just contain yourself.
Mr. Dempsey: I think I contain myself very well, your honor.
The Court: I want to say to the jury that it's unfortunate that there are loud voices in the courtroom.
Mr. Dempsey: But your honor, I have not spoken loudly. I have not. I don't think that's so.
The Court: Would you be
Mr. Dempsey: I mean you're characterizing (AT 550).
At this point the judge found it necessary to excuse the jury, admonishing the jurors, "I do not wish [the factfinding] function of the jury to be distorted because there are episodic problems in the courtroom." (AT 551). Once the jury had been excused the trial judge lectured Mr. Dempsey:
Let me tell you, I have practiced law 38 years, and I have seldom encountered a lawyer who so continuously insisted upon a stream of comment and chatter in the presence of a jury. I will not tolerate it. I will not tolerate it from any lawyer on whatever side.
Now, let me tell you something sir: This is a United States District Court. It is not a circus or a justice of the peace court. And if you're going to perform the functions of a lawyer, you will do so with dignity, with courtesy and with some kind of proper observation of the court's admonitions and rulings. I will not have that.
Do you follow me? (AT 552-53).
Even this was not enough to quell Mr. Dempsey's sarcasm and belligerence. The trial judge once again threatened to find Mr. Dempsey for contempt and to jail him (AT 553-54). The proceedings were thereafter adjourned (AT 555).
Mr. Dempsey's explanation of this incident was unresponsive. He suggests that he said the trial was going too fast, and *917 that he made a mistrial motion (HT 17). He also believes he may have said that it was difficult to try the case under threat of contempt (HT 17). This court finds that Mr. Dempsey's remarks were unprofessional, and his conduct disruptive and disrespectful.
Heated exchange with trial judge over cross-examination of a government witness.
At trial on August 30, 1979, Mr. Dempsey was trying to establish, through cross-examination of an Officer Dijamco, that a suspected accomplice of Altamirano had been shot more times than government witnesses had testified. He was trying to interpret a coroner's report without benefit of expert testimony. The government objected, and the court attempted to instruct Mr. Dempsey how to conduct a proper cross-examination. When Mr. Dempsey asked for an explanation of the fact he was trying to show, which was not a fact in evidence, the government objected again, and the court excused the jury.
The court tried to ascertain what evidence Mr. Dempsey had that there were five bullet wounds instead of four. When Mr. Dempsey indicated that he had counted the number of organs affected, the court tried to explain that one bullet might affect multiple organs, depending on the path it took. Mr. Dempsey began another tirade, causing the trial judge to ask him to shut up (AT 589), and conduct himself like a lawyer and not like a buffoon (AT 590). Mr. Dempsey continued to be upset and stated: "But don't you see? You've scared Mr. Solomon to Denver. He isn't even here anymore. You've got me under threat of contempt." (AT 593).
The trial judge cited Mr. Dempsey for contempt and fined him $250 (AT 593). Mr. Dempsey responded that he did not have the money, and stated further, "But the thing is, though, that every time I get close to something with one of these witnesses, I'm held in contempt. The witness the hearing stops. I have been threatened with contempt every time " (AT 594). Mr. Dempsey continued in this manner, with brief interruptions by the trial judge, making statements such as, "Every time I get near the facts, I'm in trouble." (AT 595), and "Every time I want to ask that question, you hold me in contempt. Every time I get near the facts, the whole world explodes." (AT 597-98). It was finally necessary for the trial judge to have Mr. Dempsey removed from the courtroom by the Marshal (AT 598).
At the disbarment hearing, Mr. Dempsey explained that he thought that the number of shots was a "big hidden fact" that "everybody was waiting for." (HT 19). Whatever Mr. Dempsey thought, he was not to impugn the integrity of the trial court by making the unfounded suggestion that it was trying to prevent him from bringing out the truth. This court finds that Mr. Dempseys conduct was disrespectful and unprofessional.
Unprofessional objection to trial judge's consultation with defendant regarding representation afforded him.
After Mr. Dempsey returned to the court, the trial judge questioned the defendant as to how he felt about the way his trial was proceeding, and whether he felt he could have a fair trial with Mr. Dempsey as his lawyer. Mr. Dempsey objected, suggesting that it was illegal for the court to communicate with the defendant (AT 600), and accusing the judge of trying to come between him and his client (AT 601).
At the disbarment hearing, Mr. Dempsey again expressed his concern about incriminating statements his client might have made to the judge (HT 20). While this court understands Mr. Dempsey's concern, it notes that Mr. Dempsey handled the situation in a belligerent and unprofessional manner.
Defective cross-examination technique.
In examining the transcript at the pages cited (AT 625-27), the court finds that Mr. Dempsey's technique was poor, but not so poor as to deserve sanctions. Mr. Dempsey's cross-examination technique fluctuated throughout the trial from incompetent to adequate. Nevertheless, the cited example, while demonstrating that Mr. Dempsey's *918 performance was generally substandard, does not reach the level of incompetence found in other parts of the trial transcript.
Improper objection.
Throughout the trial, the judge found it difficult to get Mr. Dempsey to frame his objections properly. Mr. Dempsey tended to object, and then speak generally about why he did not like the evidence, without stating any legal ground for its exclusion. In this particular case, the prosecution offered testimony about papers that were allegedly found in Altamirano's wallet which was seized at the hospital. Mr. Dempsey interrupted:
Your honor, I'm going to object. There's a I haven't heard that this is the product of a search warrant by my client. It appears to be his personal papers and documents and I don't know why (AT 737).
The court asked Mr. Dempsey to stop "run[ning] off like a fountain" so that it could find out what the objection was and rule on it (AT 738). Mr. Dempsey argued that the officers needed a search warrant because the search was not incident to an arrest. The court explained that the defendant had been in custody at the time the wallet was seized, but Mr. Dempsey insisted that he could not be under arrest if he was being treated in the hospital for injuries sustained during his altercation with government agents (AT 739-40).
Mr. Dempsey's comments at the disbarment hearing were not responsive (HT 26). The court finds that this objection illustrates Mr. Dempsey's inability to grasp the facts surrounding his client's arrest.
Unprofessional aside remark in the presence of the jury denigrating the government's proffered evidence.
On September 4, 1979, while presenting its case in chief, the prosecution offered into evidence the passenger seat of the car in which the government agents had allegedly been shot by Altamirano. Dempsey objected, saying "My client says that that's not the seat. It was a brown seat, he believes, ..." (AT 882). The judge held him in contempt for making such a remark in front of the jury, admonishing him to act as a professional. When Mr. Dempsey continued to argue, the judge excused the jury (AT 882). The judge then fined him $100, stating: "You're the most unprofessional person I have ever seen in a courtroom of this kind. You act as if you have no training of law, you have no discipline at all." (AT 883).
At the disbarment hearing, Mr. Dempsey could not understand why his objection was improper. He excused his conduct saying, "Mr. Altamirano turned around and said that to me. I had to put forward his case. He said that is not the seat cover. It was Mr. Altamirano's case, after all, not mine." (HT 27). This court finds that Mr. Dempsey's conduct was unprofessional. Such conduct also provides further evidence of Mr. Dempsey's incompetence.
Frequent use of argumentative and testimony-laden questions in cross-examination.
Throughout the trial, Mr. Dempsey had to be admonished for arguing and testifying as part of his cross-examination. One example, discussed above, was his attempt to show that Mr. Castro had been hit by five bullets rather than four. On September 5, 1979, Mr. Dempsey attempted to have the San Francisco County Coroner testify about events that occurred before he arrived at the scene of Mr. Castro's death. When the court reminded him that such testimony was outside the expertise of the coroner, Mr. Dempsey asked. "Now Doctor, was I right in hearing you saying that you could not accept the statements of the officers as to the death of as to the manner of death of David Castro." (AT 1016). This did not accurately reflect the testimony of the witness, which was that Mr. Castro might have been shot four or five times (AT 1006).
Later, on direct examination of his client, Mr. Dempsey began his question by recounting the testimony of another witness (AT 1151). When asked by the court what he was doing, Mr. Dempsey stated: "I'm trying to get [Altamirano] to the point *919 where he remembers what we're talking about." (AT 1151). At another point it became obvious that Mr. Dempsey was reviewing transcripts and making observations instead of asking questions. For example, he stated, "Now there's a great deal of talk, as I recall, about your source being paranoid and he was getting the stuff in China. And what was all that?" (AT 1180). And later, "The question is, it would seem to me that he in effect is saying that he called Jerry and Jerry to get together with you. It seems to me that rather than what you're telling us, it's the other way around, that you're the source. Is that right?" (AT 1192).
Mr. Dempsey's explanation at the disbarment hearing was, again, unresponsive (HT 27-30). This court recognizes that attorneys will occasionally ask leading questions on direct examination. However, Mr. Dempsey was not merely asking leading questions; he was testifying and arguing as part of the questions. Moreover, while once or twice in the course of an examination might have been excusable, it was necessary for the court to constantly admonish Mr. Dempsey to ask questions of the witnesses instead of engaging in colloquy. This court finds, therefore, that Mr. Dempsey's overall performance failed to meet minimum standards of proficiency and professionalism.
Objection by counsel to question put by prosecuting attorney.
This charge relates to three occasions when Mr. Dempsey objected to arguably improper questions asked of Mr. Altamirano by the prosecuting attorney. The first questioned whether a government agent had lied when he testified that Altamirano took out a gun and shot the agent in the back of the head (AT 1328). After the court had ruled on the objection, Mr. Dempsey continued to argue that "the question of whether or not [the agent] may be commiting perjury is hardly a question to be decided by [Altamirano]." (AT 1328).
Later, the prosecutor asked Altamirano whether he had been drunk on one of the dates on which he was accused on distributing heroin. Mr. Dempsey objected: "That's asking about a crime and a misdemeanor, at that. You can't impeach the defendant with a misdemeanor, being drunk in public. He's not on trial for being drunk." (AT 1350).
And, on September 11, 1979, Mr. Dempsey objected to a leading question asked on cross-examination about a charge that Altamirano had broken into the home of a Mr. Aulday. The prosecution asked, "And is it a fact that you had some screwdrivers on that occasion?" Mr. Dempsey objected, "Why doesn't the United States Attorney just take the oath and get on the stand? He's doing a lot of testifying. He is not asking questions." (AT 1435).
Mr. Dempsey could offer no comment upon this charge (HT 30). The first two objections missed the point of the prosecutor's questions, and the third was a disproportionate reaction to routine cross-examination. While these objections, standing alone, would not be cause for alarm, in the context of Mr. Dempsey's other disruptive and incompetent behavior, they add weight to the court's finding that Mr. Dempsey should not practice before the federal court.
Unprofessional objections during cross-examination of defendant by prosecution.
Just before the second example discussed above, Mr. Dempsey objected to another question asked Mr. Altamirano by the prosecutor. The question was: "Did you ever get in a car with [a Mr. Gamino] in Orange Alley between 25th and 26th street on November 24, 1978?" Dempsey objected that the question assumed a fact not in evidence (AT 1348). When the court overruled the objection, Mr. Dempsey continued to argue until the court told him to sit down (AT 1348). The following exchange occurred:
The Court: You know, this really is not going to be a circus.
Mr. Dempsey: It's not a circus sir.
The Court: Now I've I've spoken to you. We've had a little discussion, and I want to call it to your attention: When *920 you hear me rule, I don't then invite further speeches, Mr. Dempsey.... (AT 1348-49).
At the disbarment hearing, Mr. Dempsey indicated that there was not enough in the papers he had to respond to this charge (HT 30). Of course, transcripts of the Altamirano pretrial hearings and trial were available at Mr. Dempsey's request. The fact that he chose not to make use of them may be a sign of his continuing incompetence as an attorney. This court finds that Mr. Dempsey's failure to observe the trial court's rulings was unprofessional.
Unprofessional comments on behavior of prosecution during cross-examination of defendant.
During the trial the defendant maintained that he had not had a gun. In questioning him about the shooting of one of the government agents the prosecutor asked, "In any event, what you're telling us is you never pulled the trigger like that (indicating), is that correct?" Mr. Dempsey interrupted: "May the record show that the District Attorney [sic] has picked up a gun and pointed it I don't know whether at the jury or not and he clicked it audibly in the courtroom pointing at I don't know who." (AT 1374). When the court told Mr. Dempsey that the gun had been pointed up and not at anybody, Mr. Dempsey continued, "I don't want the gun pointed at anyone anywhere in the courtroom, especially when there's shells in the courtroom." (AT 1374). At this point the trial judge indicated that he was "fed up," and called a recess (AT 1375).
At the disbarment hearing Mr. Dempsey indicated that he did not have enough information to tell what the charge was about (HT 30). Nevertheless, Mr. Dempsey had access to the necessary information. The court finds Mr. Dempsey's statements about the prosecutor's behavior inflammatory and unprofessional.
Unprofessional outburst.
During cross-examination of an Officer Gamble, Mr. Dempsey asked, "Did the District Attorney stand up and state these were federal agents?" When the prosecutor objected Mr. Dempsey argued, "I have let his hearsay in. I don't know why the heck I can't have a little hearsay. It's all hearsay." (AT 1514). Mr. Dempsey explained that he just wanted to get in a particular piece of evidence (HT 31). Nevertheless, the court cannot condone tantrums from attorneys practicing before this court, merely because they are disappointed with the court's evidentiary rulings.
Conduct described by the trial court as "professionally obstreperous and obnoxious."
Minutes later Mr. Dempsey accused the officer of testifying that there was an outstanding state warrant for Altamirano when "there is no outstanding warrant and the United States Attorney knows this." (AT 1517). The court then called both attorneys to side bar and warned Mr. Dempsey that the next time he made that kind of statement he would spend the night in jail for contempt (AT 1518). Mr. Dempsey continued to try to argue that everybody knew that the warrant was dismissed, and asked that the record show that the warrant had been produced in court (AT 1518). The judge corrected Mr. Dempsey, stating that he had never seen a warrant (AT 1519). When the prosecutor offered to produce certification that the warrant was still pending, Mr. Dempsey indicated, once again, that he thought the state and federal proceedings were intertwined. He asserted that the warrant could not be pending as a matter of law because the defendant had been in custody for more than 90 days (AT 1519). The court, once again, reminded Dempsey that Altamirano was not in state custody.
After further remarks by Mr. Dempsey the court stated:
I am going to tell you, Mr. Dempsey, I have never seen a lawyer with the behavior that you exhibit in court. I am telling you that this is going to be the worst You make it hard for the court to proceed without having to come down hard on you, but when this trial is over, I am going to tell you I am going to commit *921 you, because I am absolutely just at a point where I agree it's impossible for anybody to be as professionally obstreperous and obnoxious as you are. (AT 1520).
Mr. Dempsey did not recall that the judge had made these remarks (HT 31), and conjectured that he had, perhaps, argued too strongly over the evidence (HT 32). The court finds that Mr. Dempsey's factual assertion, made in the presence of the jury, that the United States Attorney was allowing his witness to lie about the outstanding warrant, was unprofessional.
Unprofessional effort, in closing argument to jury, to use trial court's rulings against the prosecutor, leading to criticism of Mr. Dempsey's unprofessional conduct.
During closing argument, Mr. Dempsey referred to the evidence that Mr. Castro may have been shot more than four times. He stated: "They come up here with a fellow, he doesn't know anything about it, there just aren't any And if somebody wants to testify, it's not allowed, I can't bring it in." (AT 1662). The trial judge interrupted him and warned him to stop arguing to the jury about the wisdom or propriety of the court's rulings (AT 1662-63).
Mr. Dempsey's explanation was not a direct confirmation or denial (HT 32-33). It was merely a speech about effective conduct in front of a jury. The court finds that Mr. Dempsey's attempt to draw the trial court's rulings into question was unprofessional and disrespectful.
CONCLUSIONS OF LAW
A. Relevant Standards of Professional Conduct
Prior to the hearing on this matter, Mr. Dempsey filed a motion for dismissal or for summary judgment. He asserted that he was entitled to summary judgment because reasonable attorneys might differ as to the propriety of his conduct. This court disagrees. A reasonable attorney who read the transcript of the Altamirano trial would be unable to ignore the blatant violations of the various rules and codes of professional conduct.
The rules that were in effect at the time of the Altamirano trial and those that are in effect now establish the objective standard by which an attorney's conduct is to be measured. The American Bar Association's Code of Professional Responsibility ("Code"), superceded by the Model Rules of Professional Conduct ("Model Rules") in 1983, California's Rules of Professional Conduct ("California's Rules"), and the Northern District of California Local Rules ("Local Rules"), all proscribe the type of conduct engaged in by Mr. Dempsey. Mr. Dempsey is required to comply with California's Rules and the Local Rules by the rules of this court. See Northern District of California Local Rules, Rules 100-3, 110-3 (effective 1977). The other rules provide guidance with respect to accepted standards of professional behavior.
"[A] member of the [bar] shall not accept employment or continue representation in a legal matter when the member knows that the member does not have ... sufficient time, resources and ability to perform the matter with competence." California Code of Professional Responsibility, Rule 6-101 (1975). See also A.B.A. Code of Professional Responsibility, DR 6-101(A)(1) & (2) (1977); A.B.A. Rules of Professional Conduct, Rule 1.1 (1983). Mr. Dempsey did not know enough about practice in federal court to effectively conduct the Altamirano trial. Proceedings in that trial were often interrupted while the trial judge tried to explain rules of procedure, constitutional law, the relationship between state and federal proceedings, and federal rules of evidence. Mr. Dempsey should have acquired such information before appearing in federal court. Such knowledge would be expected of any attorney of ordinary skill and learning who appeared before this court. Mr. Dempsey knew that he did not have sufficient knowledge or experience (AT 16, HT 9), and should have associated himself with, or obtained the advice of the public defender or other competent attorney.
*922 Local Rule 110-3 requires every member of the bar of this court to "perform with the honesty, care, and decorum required for the fair and efficient administration of justice." Northern District of California Local Rules, Rule 110-3. The A.B.A. Code and Model Rules also require courteous and respectful conduct from attorneys appearing before the court. "In appearing in his professional capacity before a tribunal, a lawyer shall not: ... [e]ngage in undignified or discourteous conduct which is degrading to the tribunal." A.B.A. Code of Professional Responsibility, DR 7-106(C)(6); see also A.B.A. Model Rules of Professional Conduct, Rule 3.5(c). The comment to Model Rule 3.5 states in part: "Refraining from abusive or obstreperous conduct is a corollary of the advocate's right to speak on behalf of litigants.... An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics." There is no place and no excuse for the type of disrespectful, sarcastic, and disruptive conduct engaged in by Mr. Dempsey during the Altamirano trial.
B. Appropriate Disciplinary Action
In considering what disciplinary action is appropriate under the circumstances, the court was mindful of the six years that have passed since the Altamirano trial. It looked, therefore, for evidence that Mr. Dempsey's level of competence has improved or that he has modified his behavior. Unfortunately, that is not the case. Mr. Dempsey continues to perform at a substandard level, and he believes that his behavior throughout the Altamirano trial was appropriate.
1. Failure to Recognize Inappropriateness of Conduct.
This court attempted to ascertain whether Mr. Dempsey's conduct at the Altamirano trial was part of a pattern of behavior, or merely an aberration. Mr. Dempsey was asked in several ways whether he felt, in retrospect, that his conduct during the Altamirano trial was inappropriate. Mr. Dempsey's answers were not all responsive (HT 69-84), but those that were indicated that Mr. Dempsey does not understand his role as an officer of this court. In fact, he asserted in his motion for summary judgment that he was not an officer of the court. See Points and Authorities to Dismiss or for Summary Judgment, at 12. During the hearing, he suggested that a criminal attorney owes a duty only to his client (HT 78), and stated: "I could do what I wanted to do because I am an independent lawyer." (HT 41). Finally, after suggesting that the appellate court's opinion was "pretty dumb" (HT 80), Mr. Dempsey asserted that there was no merit to any of the citations of improper conduct (HT 83).
Until Mr. Dempsey understands what type of conduct is appropriate, he is bound to repeat his mistakes. In fact, his remarks and manner during the disbarment hearing were often inappropriate (HT passim), and he had to be reminded at least three times in a period of a few minutes not to interrupt the United States Attorney's opening remarks (HT 46, 50, 53-54). The need to constantly remind an attorney of the standard of appropriate professional conduct disrupts the flow of a court's proceedings. Moreover, Mr. Dempsey's misunderstanding of his responsibility to the court may lead to more serious breaches of ethics. Therefore, before Mr. Dempsey practices again before this court, he must satisfy the court that he understands his responsibility to act in a professional manner when appearing as an advocate before this court. To this end, he must successfully complete a course in Professional Responsibility. The court will accept as evidence of competence in this area, a passing score on any Multistate Professional Responsibility Exam given after the filing of this order, and acceptable responses to voir dire by this court on that subject.
2. Continued Substandard Professional Performance.
The Disbarment Hearing
If Mr. Dempsey's advocacy during this proceeding is any indication of the type of *923 representation that he provides his clients, the public is in sore need of protection. Mr. Dempsey's presentation sometimes shifted from righteous indignation, to noble advocacy, to wounded sarcasm, to philosophical digression, all in response to the same question, and without provocation by the court (HT 35-42, 73-77). He often did not give logical responses to direct questions, and his remarks were often unrelated to the point being discussed (HT passim). He did not read the transcript of the Altamirano trial in preparation for the hearing, and was unable to adequately address some of the charges for that reason (HT 30-31).
He moved for dismissal of the proceedings on the ground that the statute of limitations had passed. His argument, which erroneously argued that the statute of limitations for contempt applied, was meritless; and his moving papers were wholly inadequate. Mr. Dempsey was unable to present a coherent legal argument, but instead presented a series of barely relevant quotations, interspersed with irrelevant digressions and unsupported assertions.
Finally, Mr. Dempsey brought to this court's attention evidence that he has acted incompetently before other judges of this court. He submitted a transcript of a hearing he had before the Honorable Marilyn H. Patel (discussed below). He intended to show that other judges had not treated him fairly since the Ninth Circuit opinion was published. Instead, he managed to cast even greater doubt on his ability to successfully represent clients in federal court. The fact that Mr. Dempsey was unable to discern or appreciate the negative impact this evidence would have on this court's evaluation of his fitness to practice is cause for concern.
The Hearing Before Judge Patel
Mr. Dempsey represented his brother, Mr. James Dempsey, in a case against Pacific Bell Company, Dempsey v. Pacific Bell Co., C-84-3150 MHP. Mr. Dempsey submitted to this court a transcript of a hearing on a motion for summary judgment in that case held on February 4, 1985. That transcript ["PT"] reveals that Judge Patel dismissed Mr. Dempsey from that suit because of his incompetence (PT 7-10). Although the suit was based on a claim of wrongful discharge, Mr. Dempsey had not asked for production of his client's personnel file prior to the close of discovery (PT 6-7). Therefore, he was unable to support allegations that his client's evaluations had changed dramatically after he had refused to retire early. When informed of this omission, Mr. Dempsey insisted that discovery was not closed, and that he wanted the files produced in court (PT 7). Nevertheless, an examination of the files in that case reveals that the discovery cutoff date, February 2, 1985, had indeed passed.
The transcript also reveals that Judge Patel considered Mr. Dempsey's performance incompetent and his papers wholly inadequate (PT 8-9). After reading the file for that case, this court must concur. For example, although he failed to conduct adequate discovery to support his client's claim, Mr. Dempsey produced four sets of overlapping and overinclusive jury instructions. This obsession with jury instructions to the exclusion of other important pretrial matters is another example of the type of incompetent conduct from which the public should be protected. And, as in this case, Mr. Dempsey's legal arguments were difficult to decipher, and generally meritless or inadequate.
In order to remediate these failings, Mr. Dempsey must successfully complete professional courses in criminal and civil trial advocacy. He may apply for readmission to practice before this court when he is able to demonstrate competence in the basic skills of practice before this court, including a showing that he is able to: (1) present a coherent and organized legal argument; (2) understand and apply federal rules of civil procedure, criminal procedure, and evidence; and (3) adhere to local rules. See Matter of Tranakos, 639 F.2d 492, 493 (9th Cir.1981).
3. Evidence of Erratic and Unstable Behavior
*924 Based on its observation of Mr. Dempsey during the disbarment hearing, and his behavior in other proceedings before this court, the court is concerned that the source of Mr. Dempsey's unprofessional and erratic behavior may have to do with his mental, physical or emotional health. The court noted Mr. Dempsey's inability to remain focused on the court's direct questions, and his everchanging attitude as he subjected the court to long, unfocused anecdotes and wide-ranging digressions. In addition to the inappropriateness of his remarks and responses, the court is concerned about evidence that Mr. Dempsey's grasp of reality is not as firm as it should be.
The court cannot ignore the pattern of unwarranted attacks on the professional integrity of this court. This pattern emerges in United States v. Altamirano, and continues in Mr. Dempsey's more recent appearances before this court. During the Altamirano trial, Mr. Dempsey accused the trial judge, the Honorable Cecil F. Poole (now a circuit judge), of illegal communication with the defendant (AT 600), and of trying to come between Mr. Dempsey and his client (AT 601). He also suggested that Judge Poole was preventing him from getting at the truth by citing him with contempt "every time [he got] near the facts" (AT 594-99).
Dempsey v. Pacific Bell Co. was originally assigned to the Honorable Eugene F. Lynch. When opposing counsel failed to appear for a hearing on a order to show cause, Judge Lynch chose to continue the hearing because he was not convinced that opposing counsel had been properly served. Disappointed that Judge Lynch had not imposed sanctions on opposing counsel, Mr. Dempsey wrote to the Judicial Conference of the United States accusing Judge Lynch of acting unfairly and without reason, and of illegal ex parte communication with opposing counsel. See Letter from Arthur D. Dempsey to Judicial Conference (June 15, 1984). Mr. Dempsey made no showing of ex parte contact between Judge Lynch and opposing counsel; and counsel for Pacific Bell, Ronald R. McClain, denied that such contact had been made. He explained to the Judicial Conference that his failure to appear was based on his confusion, which was in turn due to the manner in which the moving papers had been served. See Letter from Ronald R. McClair to Judicial Conference (June 20, 1984). Shortly thereafter the case was reassigned to Judge Patel at Judge Lynch's request.
Mr. Dempsey's response to this court's decision to take judicial notice of the Dempsey v. Pacific Bell Co. file states: "In fact it became obvious as soon as the case was filed that the trial court was prejudiced against the client's case. Without going into it too deeply, ... it was clear that the court was in communication with opposing counsel outside the record, that counsel for Pacific Bell Company felt they could deny discovery and act illegally with impunity." Response to Court's Order to Allow Judicial Notice, at 2. "It became clear that an attempt was being made to breach the attorney-client relationship, and that the case was to be destroyed without trial." Id. This excerpt is only one of many similar representations made by Mr. Dempsey.
During the course of the disbarment hearing, Mr. Dempsey's feelings of persecution became more and more pronounced. He stated: "You know, when I come in here to defend a criminal, everybody is against me. Every man turns against me, you know. I'm always being ganged up on right?" (HT 74). In one of his many attacks on the validity of the disbarment proceedings, he asserted:
There is a little bit of sour grapes in all this. Altamirano is about ready to get out. I thought he was going to be here. "We will give you parole if you [will] be here." I felt sure Altamirano was going to be here. I expected Solomon to be here. (HT 84).
When asked what he made of the fact that his cocounsel, Mr. Solomon, had not been charged with misconduct he replied, "I make of that that I am the fall guy." (HT 90). In his brief and at the hearing he *925 contended: "You know what the deal was. I will tell you what I think the deal was. I think that Solomon and Altamirano were saying in effect give us a deal, and we will get rid of Dempsey.... I was the club they were using." (HT 90-91).
A sample of the type of incoherent argument that was fairly typical of Mr. Dempsey's presentation occurred when this court attempted to ascertain the basis of Mr. Dempsey's assertion that Mr. Solomon should be disciplined, too:
Mr. Dempsey: That's why I say Solomon should be charged, because he would be talking against himself if he came into this case.
The Court: Wait a moment. Why do you say that your cocounsel should be charged?
Mr. Dempsey: Because he approved it. That's the rules. He approved it. He had knowledge of it.
The Court: He approved what?
Mr. Dempsey: Whatever I did. He sat right there with me and conferred with me.
The Court: That is your basis for saying he should be here, too?
Mr. Dempsey: At least he shouldn't be here testifying against me.
The Court: Did he do that?
Mr. Dempsey: I don't know. That's why It is not in the transcript. That's been my argument.
The Court: Where do you get the idea that Mr. Solomon has testified against you or made charges against you?
Mr. Dempsey: What if he did? I am coming in here Mr. McTernan
The Court: You raised this issue
Mr. Dempsey: Surely.
The Court (continuing): About Mr. Solomon. I am in good faith. To my knowledge, Mr. Solomon has not said anything against you or in favor of you. He is silent. He is not here. There are no affidavits of his. He is not included in the transcript.
Mr. Dempsey: Wait a minute.
The Court: His testimony is not included in the transcript. (HT 84-86).
Other examples of Mr. Dempsey's digressions, circular arguments, impertinent remarks, and general confusion appear throughout the transcript. This court declines to record each of them here. It merely notes that this is not the only, or the most, frustrating exchange that the court had with Mr. Dempsey during the short hearing. The transcript speaks for itself.
California's Rules of Professional Conduct state: "[T]he term `ability' means a quality or state of having sufficient learning and skill and being mentally, emotionally, and physically able to perform legal services." Rules of Professional Conduct, Rule 6-101(C). While this court is not qualified to make a judgment about Mr. Dempsey's general competence or mental state, it finds that it is in the best interests of the public and of the legal profession for Mr. Dempsey to be examined and evaluated. See In re M., 59 N.J. 304, 282 A.2d 37 (1971); see also In re Chipley, 254 S.C. 588, 176 S.E.2d 412 (1970), cert. denied, 400 U.S. 905, 91 S.Ct. 146, 27 L.Ed.2d 143 (1971). Therefore, before Mr. Dempsey is allowed to practice again before this court, he must undergo psychiatric and medical examinations to determine whether there is a psychiatric or medical problem associated with his conduct before this court. Should the examining psychiatrist or physician conclude that treatment is warranted, Mr. Dempsey must follow the recommended course of treatment as a precondition to readmission to practice before this court. His suspension will be lifted when he satisfies this court that he is psychiatrically and medically able, as well as professionally competent, to perform his professional duties.
CONCLUSION
Mr. Arthur Daniel Dempsey is hereby suspended from the roll of attorneys qualified to practice before this court until such time as this court is satisfied that he is mentally, physically, and professionally *926 able to perform competently and to effectively represent his clients.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2731330/ | J-S44008-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TIMOTHY SENICH,
Appellant No. 1542 WDA 2013
Appeal from the Order Entered August 29, 2013
In the Court of Common Pleas of Butler County
Criminal Division at No(s): CP-10-CR-0001465-2009
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 09, 2014
Appellant, Timothy Senich, appeals from the August 29, 2013 order
denying his Motion to Compel Specific Performance. We affirm.
On January 6, 2010, Appellant entered a plea of guilty to criminal
attempt (unlawful contact with a minor), criminal solicitation (unlawful
contact with a minor), and criminal use of a communication facility. On May
26, 2010, he was sentenced to a term of 6 – 12 months’ incarceration, one
term of 84 months’ probation to be served concurrently to the term of
incarceration, and one term of 108 months’ probation to be served
consecutively to the term of incarceration. Following a revocation hearing
on August 13, 2010, Appellant was sentenced to an additional term of 12
months’ probation. No direct appeal was taken from either the May 26,
2010, or the August 13, 2010, judgments of sentence.
J-S44008-14
At the time of Appellant’s plea, the parties to this appeal
acknowledged there was no agreement relative to Appellant’s sexual
offender registration requirements under 42 Pa.C.S. § 9791, et seq., known
as “Megan’s Law.” Appellant became subject to a 10 year reporting
requirement due to his convictions for criminal attempt and criminal
solicitation to commit unlawful contact with a minor.1
On December 20, 2012, Appellant became subject to the newly-
effective sex offender registration requirements of 42 Pa.C.S. § 9799, et
seq., known as the Sex Offender Registration and Notification Act (SORNA).
Pursuant to the new registration requirements, Appellant is subject to a
lifetime reporting requirement due to his convictions for attempt and
solicitation.2
On December 19, 2012, Appellant filed a motion to terminate his
probation so that he would not be subject to the new requirement. The trial
court denied this motion following a hearing on January 11, 2013. No direct
appeal was taken from the trial court’s order.
____________________________________________
1
Pursuant to 42 Pa.C.S. § 9795.1(a)(2), a conviction of attempt, conspiracy
or solicitation to commit unlawful contact with a minor triggers a
requirement to register with the Pennsylvania State Police for a period of ten
years.
2
Pursuant to 42 Pa.C.S. § 9799.15(a)(3), a conviction of a Tier III sexual
offense triggers a requirement to register with the Pennsylvania State Police
for the life of the individual. Two or more convictions of attempt, conspiracy
or solicitation to commit unlawful contact with a minor constitutes a Tier III
sexual offense. 42 Pa.C.S. § 9799.14(d)(16).
-2-
J-S44008-14
Appellant then filed a Post Conviction Relief Act (PCRA) petition on
March 4, 2013, alleging that SORNA “violates both the United States’ and
Pennsylvania’s Ex Post Facto Clauses.” PCRA Petition, 3/4/13, at 2. A
hearing on this petition was held on April 23, 2013, and the court denied the
petition on May 8, 2013.
On June 17, 2013, Appellant filed a petition seeking the reinstatement
of his rights to file a direct appeal from the May 8, 2013 order denying PCRA
relief. In addition, Appellant filed a motion for specific performance of his
plea bargain (petitioning the court to issue an order imposing the initial 10
year registration requirement). A hearing on these motions was held on
August 19, 2013, and the court denied them both on August 29, 2013. On
September 25, 2013, Appellant filed a notice of appeal “from the August 29,
2013 [] Order of Court denying Defendant’s Post-Sentencing Motions.”
Appellant also filed a timely concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b).
Appellant now presents the following question for our review:
Did the trial court err when it denied [Appellant’s] Motion to
Compel Specific Performance where the record
demonstrated that the Commonwealth agreed to or
consented to a period of [10] years[’] registration pursuant
to “Megan’s Law” when it notified the [c]ourt it would not
seek sexually violent predator status against [Appellant] at
sentencing and where the Commonwealth is now seeking
lifetime registration pursuant to SORNA?
Appellant’s brief at 4.
-3-
J-S44008-14
Appellant’s sole briefed argument on appeal addresses whether the
trial court erred in denying his Motion to Compel Specific Performance.3
Appellant concedes this motion constitutes a PCRA petition, stating “[a]
defendant may properly raise a claim pursuant to the Post Conviction Relief
Act, codified at 42 Pa.C.S.[] [§] 9541 et seq., where the defendant claims
his plea was unlawfully induced because the terms thereof were breached by
the Commonwealth.” Appellant’s brief at 9 (citing Commonwealth v.
Zuber, 353 A.2d 441, 443 n.1 (Pa. 1976)).
Our standard of review for an order denying PCRA relief is whether the
record supports the PCRA court’s determination, and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Ragan, 923
A.2d 1169, 1170 (Pa. 2007). We will not disturb the PCRA court’s findings
unless there is no support for the findings in the certified record.
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
Before we may address any of Appellant’s claims, we must assess the
timeliness of his petition, because the PCRA time limitations implicate our
jurisdiction and may not be altered or disregarded in order to address the
merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267
(Pa. 2007) (stating PCRA time limitations implicate our jurisdiction and may
____________________________________________
3
We note that the issue of whether the trial court erred in denying
Appellant’s petition to reinstate his appellate rights is not before this Court,
and we do not address it.
-4-
J-S44008-14
not be altered or disregarded to address the merits of the petition);
Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002)
(holding the Superior Court lacks jurisdiction to reach merits of an appeal
from an untimely PCRA petition).
Under the PCRA, any petition for post-conviction relief, including a
second or subsequent one, must be filed within one year of the date the
judgment of sentence becomes final, unless one of the exceptions set forth
in 42 Pa.C.S. § 9545(b) applies. That section states, in relevant part:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition
alleges and the petitioner proves that:
(i) the failure to raise the claim previously was the
result of interference by government officials with
the presentation of the claim in violation of the
Constitution or laws of this Commonwealth or the
Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that
was recognized by the Supreme Court of the United
States or the Supreme Court of Pennsylvania after
the time period provided in this section and has been
held by that court to apply retroactively.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
-5-
J-S44008-14
Here, Appellant was sentenced on August 13, 2010, and did not file a
direct appeal from that sentence. Thus, Appellant’s judgment of sentence
became final 30 days thereafter, or on September 12, 2010. See 42 Pa.C.S.
§ 9545(b)(3) (stating that a judgment of sentence becomes final at the
conclusion of direct review or the expiration of the time for seeking the
review). Consequently, Appellant had until September 12, 2011, to file a
timely PCRA petition. He did not file the instant petition until June 17, 2013.
Appellant was required to plead and prove in his PCRA petition that one of
the above-stated exceptions applied to his claim(s). Appellant did not plead
an exception to the PCRA time-bar in his petition, however, and so his PCRA
petition was untimely filed.
Even assuming that Appellant’s PCRA petition was timely filed, we
would conclude his claim is belied by the record. Appellant concedes that “at
the time of his plea the parties agreed that there was no agreement relative
to [a] Megan’s Law registration requirement and the Commonwealth would
take an appropriate position once Appellant was evaluated by the Sexual
Offender Assessment Board.” Appellant’s brief at 5. Appellant contends that
his registration requirement should be limited to ten years because “[p]rior
to Appellant’s May 26, 2010 [] sentencing hearing the Commonwealth
advised the [c]ourt i[t] was not seeking lifetime registration/sexually violent
predator classification.” Id. The record clearly demonstrates that a ten-
year term of registration was not a term of Appellant’s plea bargain.
Appellant’s claim relies on a discussion regarding registration that occurred
-6-
J-S44008-14
after Appellant’s plea had been negotiated, proffered, and accepted. That
discussion was not a term of Appellant’s plea bargain. Accordingly, we
would conclude that Appellant’s claim is without merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2014
-7- | 01-03-2023 | 09-09-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2057642/ | 913 N.E.2d 1290 (2009)
IN RE J.G.
No. 71A03-0903-JV-95.
Court of Appeals of Indiana.
September 30, 2009.
MATHIAS, J.
Disposition of Case by Unpublished Memorandum Decision. Affirmed.
DARDEN, J., Concurs.
ROBB, J., Concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2502617/ | 718 S.E.2d 401 (2011)
STATE of North Carolina
v.
Ricky Dean NORMAN.
No. 323P11.
Supreme Court of North Carolina.
November 9, 2011.
William D. Auman, for Norman, Ricky Dean.
Kathryn E. Hathcock, Assistant Attorney General, for State of North Carolina.
Tom Horner, District Attorney, for State of North Carolina.
ORDER
Upon consideration of the petition filed on the 29th of July 2011 by Defendant in this matter for discretionary review of the decision of the North Carolina Court of Appeals pursuant to G.S. 7A-31, the following order was entered and is hereby certified to the North Carolina Court of Appeals:
"Denied by order of the Court in conference, this the 9th of November 2011." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2631064/ | 164 P.3d 975 (2007)
2007-NMCA-089
STATE of New Mexico, Plaintiff-Appellee,
v.
Lorraine MAES, Defendant-Appellant.
No. 25,910.
Court of Appeals of New Mexico.
June 5, 2007.
*976 Gary K. King, Attorney General, Santa Fe, NM, M. Victoria Wilson, Assistant Attorney General, Albuquerque, NM, for Appellee.
John Bigelow, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
OPINION
ALARID, Judge.
{1} This case requires us to decide whether the State adduced evidence sufficient to permit a reasonable jury to find Defendant guilty beyond a reasonable doubt of the crime of unlawful possession of methamphetamine. We hold that the State's evidence was insufficient and that the district court erred by failing to direct a verdict of acquittal.
FACTUAL BACKGROUND
{2} Defendant-Appellant, Lorraine Maes, was charged in a criminal information with a single count of illegal possession of methamphetamine.[1] The charge was tried to a jury on February 28, 2005.
{3} The State's case was based on the testimony of two witnesses: Sergeant Jay Longley of the Clovis Police Department; and Kevin Brown, an analyst employed by the New Mexico Department of Public Safety *977 Crime Lab in Santa Fe. Defendant did not testify and did not call any witnesses.
{4} Sgt. Longley testified that he had twenty-three years experience in law enforcement and had received over 700 hours of specialized training in narcotics investigation. He was among a team of officers who executed a search warrant on the afternoon of May 1, 2003, at a house believed to be the residence of a Hispanic male, who Sgt. Longley identified as Luis Sena. The warrant was supported by information provided by a confidential informant, who claimed on more than one occasion to have observed the Hispanic male in possession of controlled substances at the subject house. Defendant was not mentioned in the warrant. When the officers arrived to execute the warrant, neither Sena, nor any other Hispanic male, was present. Defendant; Defendant's adult daughter; and a small child were present when the officers arrived to execute the warrant. The officers gave a copy of the warrant to Defendant because "she was the only one there to serve it on."[2] Sgt. Longley assumed from the evidence discovered in the search that Defendant lived in the house.
{5} In the course of executing the search warrant, officers observed an Alka-Seltzer box sitting on the headboard of a bed in one of the bedrooms. The officers opened the box and discovered a bottle cap, which they seized. The officers discovered and seized another bottle cap that was sitting in a shoe box at the bottom of a TV stand in the same bedroom. Sgt. Longley did not recall whether the shoe box had been covered with a lid. The officers observed trace amounts of a white granular residue inside both bottle caps. Sgt. Longley testified that based on his training in narcotics investigation, the presence of the residue inside the bottle caps was consistent with a practice of intravenous drug users, who use bottle caps as a container for mixing drugs with water to prepare a solution for injection. The officers subjected the residue in the bottle caps to a field test, which was positive for methamphetamine. The officers also seized a corner portion of a plastic baggie which was discovered in the same bedroom. The corner contained traces of a white powder. Sgt. Longley testified that methamphetamine and cocaine were often packaged in the corner of a plastic baggie. Sgt. Longley could not recall if the baggie corner was out in the open when it was discovered.
{6} During the search of the house, the officers seized two pieces of mail, one from the magistrate court and one from the Social Security Administration, addressed to Defendant. Neither of the two pieces of mail was addressed to Defendant at the house that was the subject of the search warrant. Sgt. Longley did not recall observing any bills or personal papers belonging to Defendant other than the two pieces of mail.
{7} The officers observed women's clothing hanging in a closet in the bedroom where the bottle caps and baggie corner were seized. Sgt. Longley did not recall the size of the clothing. Sgt. Longley was not involved in the search of a second bedroom.
{8} The officers arrested Defendant. In response to being arrested, Defendant denied living at the subject house.
{9} The house that was the subject of the May 1, 2003, search had been the subject of three prior search warrants. Defendant was not present during the first two executed search warrants. The third warrant had been executed three or four weeks prior to the May 1, 2003 search. Sena, Defendant, Defendant's son, a woman identified as Melody Sorge, and other individuals whose identities Sgt. Longley did not recall were present while the third warrant was executed. Sgt. Longley could not recall whether Defendant had been inside the house while the third warrant was executed. On this prior occasion, the executing officers arrested Sena and Sorge, but not Defendant.
{10} Kevin Brown described the scientific tests he performed to identify the white residue *978 on the bottle caps seized during the execution of the search warrant. Brown testified that based on the tests he performed he was 100% certain that the white residue was methamphetamine. He testified that the total amount of the methamphetamine he recovered from the items seized by the officers was tinyabout the size of a grain of sand. The amount he recovered was too little to weigh and was not enough for consumption. Brown testified that prior to being trained in drug identification, he would not have been able to identify the residue observed on the bottle caps.
{11} Defendant moved for a directed verdict at the close of the State's case.[3] Defendant's counsel conceded that there was sufficient evidence to establish that methamphetamine was present in the house. Defendant's counsel argued that the State had not proven beyond a reasonable doubt that Defendant had knowledge of the methamphetamine residue or that Defendant had exercised control over it. The State responded that there was evidence that Defendant lived in the home or was in control and custody of the home and that the jury, therefore, could conclude that the drugs found in the home were in Defendant's care and control. The judge felt that the State's case was weak with respect to possession and control, but nevertheless allowed it to go to the jury:
With regard to the possession and control: I think frankly this is a, this case is struggling a little bit with regard to that, but I think there's prima facie evidence sufficient to do that. That's said as candidly as I can say it, I guess. Is that, this can go in to the jury because it only has to have a prima facie standard to do that.
The district court submitted the case to the jury, which returned a verdict finding Defendant guilty of possession of methamphetamine.
DISCUSSION
{12} In criminal cases, we apply the following principles in conducting sufficiency-of-the-evidence review:
[W]e review the record, marshaling all evidence favorable to [the factfinder]'s findings. . . . [W]e accept any interpretation of the evidence that supports the [factfinder]'s findings, provided that such a view of the evidence is not inherently improbable. Crownover v. Nat'l Farmers Union Prop. & Cas. Co., 100 N.M. 568, 571, 673 P.2d 1301, 1304 (1983). We determine whether the evidence supports any conceivable set of rational deductions and inferences that logically leads to the finding in question. Jackson v. Virginia, 443 U.S. 307, 319 n. 13, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) (noting that court conducting sufficiency of the evidence review does not attempt to scrutinize the reasoning process actually used by factfinder). We must be satisfied that the evidence was sufficient to establish the facts essential to conviction with the level of certainty required by the applicable burden of proof. State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867 (1992) (noting that Jackson requires consideration of beyond a reasonable doubt standard in determining sufficiency of evidence in criminal case); see also 2A Charles Alan Wright, Federal Practice and Procedure: Criminal § 467 (3d. ed.2000) (noting minimal support for proposition that standard for sufficiency of evidence is same in civil and criminal cases and ultimate rejection of this view by Supreme Court in Jackson). To support a conviction under a beyond a reasonable doubt standard, the evidence and inferences drawn from that evidence must be sufficiently compelling so that a hypothetical reasonable factfinder could have reached "a subjective state of near certitude of the guilt of the accused." See Jackson, 443 U.S. at 315, 99 S. Ct. 2781.
State v. Wynn, 2001-NMCA-020, ¶ 5, 130 N.M. 381, 24 P.3d 816. In applying these standards, we must defer to the jury's evaluation of the evidence, while at the same time insuring that the jury has given effect to the heightened, beyond-a-reasonable-doubt standard *979 of proof applicable to criminal trials. We must allow the jury to draw reasonable inferences, yet, in deferring to hypothetical reasonable jury inferences, we must avoid tailoring the law to fit the State's evidence.
{13} The jury in Defendant's trial was given the following definition of the element of possession:
A person is in possession of methamphetamine when she knows it is on her person or in her presence, and she exercises control over it.
Even if the substance is not in her physical presence, she is in possession if she knows where it is, and she exercises control over it.
A person's presence in the vicinity of the object or his knowledge of the existence or the location of the object is not, by itself possession.
This instruction closely tracks the mandatory uniform jury instruction adopted by our Supreme Court. UJI 14-130 NMRA (defining "possession"). The present case turns upon whether the facts proved by the State at Defendant's trial and gave rise to reasonable inferences that Defendant (1) knew of the presence of the methamphetamine residue, and (2) exercised control over it.
{14} We are satisfied that the State's evidence was sufficient to allow a reasonable jury to find beyond a reasonable doubt that Defendant had an ongoing connection to the house where the methamphetamine was seized. But the State's evidence also established that Defendant's access to the house was not exclusive. In view of the undisputed fact that Defendant's access to the house was not exclusive, the State could not rely solely on Defendant's access to the house to support an inference that Defendant was in constructive possession of the methamphetamine residue. Cf. State v. Herrera, 90 N.M. 306, 307, 563 P.2d 100, 101 (Ct.App.1977) (affirming conviction for trafficking in heroin; emphasizing admission by defendant's spouse that the defendant and spouse jointly possessed heroin found buried on premises occupied by the defendant and spouse); State v. Bowers, 87 N.M. 74, 76-77, 529 P.2d 300, 302-03 (Ct.App.1974) (reversing convictions for possession of cocaine; rejecting State's argument that the defendants' constructive possession of cocaine could be inferred from the defendants' common control of the house where cocaine was discovered).
{15} We find our prior decision in State v. Brietag, 108 N.M. 368, 772 P.2d 898 (Ct.App. 1989), to be controlling as to the reasonableness of inferences of knowledge and control. For the convenience of the reader, we set out the facts summarized in our opinion in Brietag:
On May 1, 1987, police executed a search warrant at 636 South Miranda in Las Cruces. The house was rented to defendant [Douglas Brietag], under the name John King, by the Elephant Butte Irrigation District in a rental agreement dated July 1, 1986. Police placed the house under surveillance during April 1987; the surveillance ended several days before the warrant was executed.
Many persons, including defendant, were observed coming to and going from the house. Police observed defendant at the house all night on at least one of two occasions when they maintained an all-night surveillance of the residence. One of the officers involved in the surveillance testified she was not sure who was living at the house. Seven or eight people were at the house when the warrant was executed. The agent testified that she recognized some of these individuals as those who had stayed all night during her surveillance. Police said they frequently observed a Michael Hulting at the house and assumed he was living there. On the night of the search, Hulting told police he had been staying at the house for about one month.
When police searched the residence, they found thirty grams of cocaine in the southeast bedroom and approximately one pound of marijuana in the laundry room. None of defendant's personal possessions were found in these rooms. Police also searched the southwest bedroom of the house. This bedroom contained a waterbed, a nightstand, a small table, a dresser, and a bookcase. Marijuana and methamphetamines were found in the first drawer of the nightstand. A small, silver spoon containing cocaine residue and a razor *980 blade were found in the second drawer of the nightstand, along with a photograph of defendant and two savings bonds payable to a Dustin Wallace. Three blank checks were also found in the second drawer. Two of the checks were drawn on the account of a Tracy Ann Sweat and the third on the account of a Shelly Newsome.
Police seized methamphetamine from a drawer beneath the waterbed. They found numerous other papers in the waterbed drawers, including envelopes and papers with assorted names on them. On the table, police found a triple-beam scale, a powder preparation system, baggies, a piece of plate glass, and straws. They also discovered marijuana in a paper sack under the table.
Other items were found throughout the southwest bedroom. In a closet, the police found twelve rifles and handguns, along with ammunition, and a wallet containing $5,000.00. Rent receipts made out to defendant were found on the bookcase. Also discovered were a birth certificate in defendant's name, electric bills addressed to him, and photographs of him with family members. Other papers with various names were found in the bedroom. Telephone bills and hunting notices were found in the bookcase. Police could not say to whom these items were addressed.
A pile of clothing including jeans, shirts, and T-shirts was found in the bedroom; however, police were unable to say whether the clothing would have fit defendant, a very large man. A small notebook, socks, and underwear were found in the dresser, along with a sawed-off shotgun and other papers. The state presented no testimony concerning the ownership of these items and offered no fingerprints as evidence at trial.
Defendant was not at the house when the warrant was executed. He was arrested later at an address outside the Las Cruces city limits. Cindy Savage, a friend of defendant's, testified that defendant had been renting a room in her mobile home and living with her for about a month prior to the search.
Id. at 368-69, 772 P.2d at 898-99.
{16} There are striking similarities between the present case and Brietag. In each case the State comes forward with evidence that the defendant had an ongoing connection to the house where the evidence was discovered that would have provided the defendant with an opportunity to bring drugs into the house or to exercise actual physical control over drugs present in the house; that clothing appropriate to the defendant's gender was present in a bedroom in which drugs were discovered; and, that other individuals had access to the areas of the house where drugs were discovered.
{17} In Brietag, we reversed the defendant's convictions based on our conclusion that the evidence was insufficient to establish the defendant's constructive possession. We think that the State's evidence of constructive possession in Brietag was easily as strong, and in many respects much stronger, than the State's case against Defendant. Defendant's case is distinguishable from Brietag in one obvious respect: Defendant was present when the warrant was executed, while the defendant in Brietag was not. We do not believe that this distinction is particularly helpful to the State in Defendant's case. In non-exclusive access cases, the problem the State faces is the alternative inference that some other individual with access to the premises is responsible for the presence of the contraband. A defendant's presence at the time that police choose to conduct a search may, or may not, have significance, depending on the State's theory of constructive possession in a given case. For example, if the police had discovered significant amounts of clearly identifiable illegal drugs out in the open in a common area of the house at the time of the search, the defendant's presence at the time of the search would tend to strengthen an inference of the defendant's knowledge of the drugs. Likewise evidence that the methamphetamine solution was still wet coupled with evidence of the defendant's recent drug use would have increased the significance of the defendant's presence at the time the warrant was executed. *981 Here, the methamphetamine was present in trace amounts and was concealed from view in a private area of the home. Moreover, the water-methamphetamine solution had dried to a white, granular residue, a circumstance suggesting that the drugs had been mixed into a solution and injected sometime in the past. Sgt. Longley did not testify as to how long it would have taken the solution to dry to a white, granular residue and he did not testify as to how long Defendant had been present in the house prior to the execution of the warrant. In view of these circumstances, Defendant's presence at the time the warrant was served does not materially distinguish Defendant's case from Brietag.
{18} As a federal court of appeals has observed:
The line between permissible inference and impermissible speculation is not always easy to discern. When we "infer," we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is "reasonable." But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it "speculation." When that point is reached is, frankly, a matter of judgment.
Goldhirsh Group, Inc. v. Alpert, 107 F.3d 105, 108 (2d Cir.1997).
{19} Here, the State's evidence was insufficient under Brietag to support inferences of knowledge and control to the level of confidence required by proof beyond a reasonable doubt. The link between the facts actually proved by the State, and the facts that the State would have the jury infer Defendant's knowledge of trace amounts of methamphetamine residue and her exercise of control over that residueis too tenuous. The State's case relies upon incomplete strings of inferences such as the State's argument that the jury could infer from the presence of women's clothes in a closet that Defendant occupied the bedroom in which the clothes were found, and from the inference of occupancy, further infer that Defendant controlled the traces of methamphetamine residue found in that room. The State's argument overlooks the absence of evidence that would have supported a reasonable inference that the clothes were Defendants. Cf. Brietag, 108 N.M. at 369, 370, 772 P.2d 898, 899 (observing that the State produced no evidence that clothes found in a room where illegal drugs were seized were the defendant's clothes).
{20} To find sufficient evidence of constructive possession, we would have to stretch the concept of possession beyond the breaking point. See State v. Maldonado, 2005-NMCA-072, ¶ 16, 137 N.M. 699, 114 P.3d 379 (observing that "[t]he concept of substantial evidence is meaningless unless it is linked to a specific definition of a crime [and that] [e]xpand[ing] the definition of the crime and evidence that might otherwise be insufficient becomes `substantial'"). Constructive possession is "a legal fiction used to expand possession." State v. Barber, 2004-NMSC-019, ¶ 22, 135 N.M. 621, 92 P.3d 633. However, because the power to define crimes is committed to the Legislature, State v. Allen, 77 N.M. 433, 434, 423 P.2d 867, 868 (1967), and because penal statutes are to be strictly construed, id., we must exercise caution in employing the judicially created legal fiction of constructive possession to criminalize conduct that the Legislature has not clearly proscribed. No New Mexico case has held, as the State argued in the district court, that a person left in charge of a house to which other persons have access is in constructive possession of every item that is present on the premises.[4]
{21} We recognize that it may seem "anomalous" to analogize from legal principles designed to protect and enforce legitimate property rights when the property in question is illegal contraband. State v. Bash, 670 N.W.2d 135, 139 (Iowa 2003). *982 Nevertheless, we are inclined to apply the basic distinction between property that is "mine" and property that is "yours," "his," or "hers" even among sellers and consumers of illegal drugs and their housemates, relatives, friends, and guests. A defendant's knowledge of the location of a another person's stash of drugs coupled with the physical ability to exercise control over them in the owner's absence does not justify an inference of the defendant's constructive possession of drugs anymore than a defendant's knowledge of the location of a housemate's stash of cash would justify an inference that the defendant constructively possessed the housemate's money in the housemate's absence. See id. The State's theory of constructive possessionthat Defendant necessarily controlled every item in the house of which she had knowledgeis not a correct statement of the criminal law of constructive possession, and we expressly disapprove of closing arguments that incorporate this view of the law.
{22} As we recently noted,
A trial court "has the right, and it is its duty," to withdraw a case from the jury and direct a verdict for a defendant when the State has failed to come forward with substantial evidence that the defendant committed the offense charged. When a trial court improperly fails to direct a verdict for the defendant it is our responsibility to correct the error by doing on appeal what the trial court failed to do at trial, and we are not precluded from correcting the trial court's error in even submitting the case to the jury by the fact that a jury has found against the defendant.
Maldonado, 2005-NMCA-072, ¶ 17, 137 N.M. 699, 114 P.3d 379. The district court erred by denying Defendant's motion for a directed verdict. We reverse Defendant's conviction and remand with instructions to enter a directed verdict of acquittal.
{23} IT IS SO ORDERED.
WE CONCUR: MICHAEL D. BUSTAMANTE, and MICHAEL E. VIGIL, Judges.
NOTES
[1] The criminal offense of unlawful possession of a controlled substance is set out at NMSA 1978, § 30-31-23 (1990) (amended 2005).
[2] Rule 5-211(C) NMRA states that "[t]he officer seizing property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the affidavit for search warrant, and the search warrant and a copy of the inventory of the property taken or shall leave the copies of the affidavit for search warrant, the search warrant and inventory at the place from which the property was taken."
[3] Rule 5-607(E) NMRA requires the district court to determine the sufficiency of the evidence after the close of the State's case-in-chief and after the close of evidence "whether or not a motion for directed verdict is made."
[4] The State relied on this argument both in responding to Defendant's motion for a directed verdict and in its closing arguments to the jury. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/877830/ | 649 P.2d 425 (1982)
B.M., a minor, by Leona M. Burger, her guardian Ad Litem, Plaintiff and Appellant,
v.
STATE of Montana, et al., Defendants and Respondents.
No. 81-72.
Supreme Court of Montana.
Submitted September 23, 1981.
Decided July 14, 1982.
Rehearing Denied August 20, 1982.
Russell A. Lavigne, Jr., argued, Helena, for appellant.
Lucas, Jardine & Monaghan, Miles City, A. Lance Tonn argued, Miles City, John A. Langen argued, Glasgow, Anderson, Symmes, Forbes, Peete & Brown, Billings, Richard F. Cebull argued, Billings, Robert Hurly, Gordon T. White, Glasgow, for defendants and respondents.
SHEA, Justice.
B.M., a minor, through her foster mother, appeals from summary judgment entered in Valley County District Court. The child's claim for damages arises from her placement in a special education program when she was six years old.
The child's complaint alleged that the State was negligent in placing her in such a program and that the alleged misplacement violated her constitutional rights of due process and equal protection. After extensive *426 discovery, all parties moved for summary judgment. On November 18, 1980, the District Court granted summary judgment for all respondents "the State", ruling that they were immune from liability for claims arising from the states' "discretionary acts." The trial court also ruled that the State owes no legal duty of care to students negligently placed in special education programs. The trial court also held that such misplacement does not violate the constitutional rights of the student to due process and equal protection of the law.
The child's foster mother contends here that the trial court erred in ruling that the State was immune from negligence actions arising from the administration of special education programs in public schools. She further argues that the trial court erred in holding that the State owes no legal duty of care toward students who are negligently misplaced in special education programs. We reverse the trial court and hold that the State is not protected by immunity and that the State has a duty to use due care in placing students in special education programs. The question of whether the State breached that duty of care and whether the breach was the cause of any injury raise material questions of fact for which a trial is necessary. We further hold, however, that the trial court properly dismissed the claims that the child's due process and equal protection rights were violated. No facts were alleged sufficient to allege a constitutional violation.
The child was born in 1967 and at nine months of age was placed in the foster home of Fred and Leona Burger. While in kindergarten in Nashua, Montana, she displayed learning difficulties, apparently the result of a speech problem. In January 1973, upon the recommendation of Superintendent of Schools Sam Gramlich, and with the consent of her foster father, the child was tested by psychologist William Jones of the Eastern Montana Regional Mental Health Center.
As a result of this testing, Jones recommended that the child either repeat her year in kindergarten or receive special educational help. The school officials decided that state funds would be sought for a special education program for first graders, including the child.
An application and plan were submitted to the office of the Superintendent of Public Instruction outlining the needs of the children for special help. On the application, the child was classified as "educable mentally retarded (EMR)." To be eligible under State policy for EMR status, absent sufficient written justification, a student must have an individual learning aptitude score of 50 to 75. (Special Education Handbook; Program Procedures and Guidelines for Children and Youth With Learning Handicaps, § III, B, February 1973 (Handbook).) The child's overall IQ was determined to be 76.
The state superintendent approved the application and the program was started in September 1973. The program intended for this "primary educable class" was a "teamteaching situation." The four children in the program were to attend the regular first grade classroom, but their special education teacher was also to give them the special help and support needed "without segregating and labeling them." Of the four children in this program, only the child involved here was not mentally retarded.
The program involved two teachers. The regular first grade teacher and a special education teacher would both work with the students classified as EMR. This work would take place in the same classroom as the other students. But after five weeks, the child and the other three EMR students in the special program were found to be easily distracted and were moved to the "resource room" for their morning classes. This constituted approximately 40 percent of their daily classroom time, the rest of the day being spent as before. While in the resource room, the newly hired teacher taught the children with the same materials, but at a slower pace. The foster parents were not told of this change in the program.
The foster mother learned that the child was in the segregated classroom only after *427 the child had been attending classes there for nine weeks. The foster mother immediately removed the child from the program and the school officials then abruptly terminated the program. It was during this nine week period that the foster mother claims she witnessed a dramatic worsening in the child's behavior. For example, the child refused to dress herself and refused to eat properly. The foster mother then filed suit as a result of this alleged misplacement of the child in the segregated classroom for the mentally retarded.
SOVEREIGN IMMUNITY
The trial court held the State's acts were not subject to judicial review because they were discretionary. The Montana Constitution (Art. II, § 18), abolishes sovereign immunity except in situations where the legislature, by a two-thirds vote, enacts contrary legislation. Section 2-9-102, MCA, enacted to give meaning to this constitutional provision, provides:
"Every governmental entity is subject to liability for its torts and those of its employees acting within the scope of their employment or duties whether arising out of a governmental or proprietory function except as specifically provided by the legislature ..."
The legislature has not enacted legislation to limit the liability of the school boards in the administration of special education programs. It is, furthermore, our duty to strictly construe any attempted governmental immunity that is, every act expanding statutory immunity, must be clearly expressed. See Orser v. State (1978), 178 Mont. 126, 582 P.2d 1227; Noll v. City of Bozeman (1975), 166 Mont. 504, 534 P.2d 880.
Despite these clear constitutional and statutory provisions, and the failure of the legislature to enact laws expanding immunity to the situation involved here, the State argues that public policy prohibits a holding that the State can be held liable for negligent administration of a special education program. Not only do we not see any public policy requirements in support of such an argument, in the absence of a clear statutory declaration granting immunity, it is our duty to permit rather than to deny an action for negligence.
DUTY OF CARE
We have no difficulty in finding a duty of care owed to special education students. The general tenor of education for all citizens in Montana is stated in Art. X, § 1, 1972 Mont.Const.:
"It is the goal of the people to establish a system of education which will develop the full educational potential of each person. Equality of educational opportunity is guaranteed to each person of the state."
To implement this policy, section 20-5-102, MCA, makes attendance at State approved schools mandatory. Other statutes specifically govern the administration of special education programs.
For example, section 20-7-402, MCA, provides that school districts "shall comply" with policies recommended by the State Superintendent of Public Instruction in administering special education programs. The Superintendent's office, under this statutory mandate has published a "Special Education Handbook" which outlines for individual school districts, the procedures and guidelines to be followed in administering special education programs.
In addition, section 20-7-401, MCA, sets up a special class of students for which special education programs are provided. The child clearly falls within this class. The complaint here is that the school district failed to follow the statutory and regulatory policies governing the placement of students in the special education program.
The school authorities owed the child a duty of reasonable care in testing her and placing her in an appropriate special education program. Whether that duty was breached here, and assuming a breach, whether the child was injured by the breach of duty, are questions not before this Court. Nor were those issues placed before the trial court in the motion for summary judgment. *428 We therefore reverse the trial court's order and remand for further proceedings.
CONSTITUTIONAL CLAIMS
Without specifying how the child's due process rights were violated a right guaranteed by statute (section 20-7-402(1)(b), MCA), and more explicitly set forth in the Special Education Handbook, the complaint alleges a constitutional denial of due process. But the complaint alleges no constitutional claim which goes beyond the protection provided by the statute and the regulations. It was proper, therefore, for the trial court, to dismiss the due process claim based on a violation of the United States and Montana Constitutions.
The equal protection claim is also without merit. The sole basis for the equal protection violation is that William Jones, in evaluating the child's needs, considered the child's ethnic background (Indian) in relation to the child's learning difficulty. Jones stated that children who lived in non-English speaking homes may suffer what is known as bilingual language interference which is caused by the child's sudden exposure to an English-speaking environment. Jones also considered several other possible causes of the child's learning problems. This cannot be classified as invidious racial classification, nor can it be said that Jones had the purpose to discriminate on the basis of the child's race. A psychological evaluation which considers the cultural factors cannot be avoided if it is to have any validity. The evaluation cannot take place in a vacuum. The equal protection claim, therefore, raises no material question of fact, and the trial court's dismissal was proper.
The order of the District Court is reversed in part, affirmed in part, and we remand for further proceedings.
DALY and MORRISON, JJ., concur.
HASWELL, Chief Justice, concurring:
I concur in the result. In my view there are genuine issues of material fact precluding summary judgment, Rule 56(a), M.R. Civ.P.
There are genuine issues of material fact concerning whether the school authorities followed the statutes defining the student's eligibility for the special education program, whether the school authorities followed the statute requiring a free appropriate public education in the least restrictive environment and whether the nature and severity of the child's handicap was such that education in regular classes could not be achieved satisfactorily. These facts are germane in determining whether the child was afforded procedural due process in her placement and training.
There are also genuine issues of material fact relating to negligence of the defendants. The gist of the claim is negligent misclassification of the student as mentally retarded and subject to special education and negligent misplacement in a segregated classroom.
This is not a case of educational malpractice of the genre of Peter W. v. San Francisco Unified School Dist. (1976), 60 Cal. App. 3d 814, 131 Cal. Rptr. 854, or Donohue v. Copiague Union Free School Dist. (1979), 47 N.Y.2d 440, 418 N.Y.S.2d 375, 391 N.E.2d 1352, 1 A.L.R. 4th 1133, involving negligent failure to adequately educate a child in basic academic skills. No action lies for this type of claim for public policy reasons, and Annot, Tort Liability of Public Schools and Institutions of Higher Learning for Educational Malpractice, 1 A.L.R. 4th 1133 (1980). Here the claim involves violation of mandatory statutes alleged to constitute negligence and denial of procedural due process.
I agree with the majority's remarks regarding sovereign immunity. However, the statutes make it clear that the governmental employer will ultimately bear the burden of liability for torts committed by its employees in the scope of their employment.
Section 2-9-102, MCA, provides in pertinent part:
"Governmental entities liable for torts except as specifically provided by legislature. *429 Every governmental entity is subject to liability for its torts and those of its employees acting within the scope of their employment or duties ..." (Emphasis added.)
Section 2-9-305(4), MCA, provides in pertinent part:
"(4) In any action in which a governmental entity employee is a party defendant, the employee shall be indemnified by the governmental entity employer for any money judgments or legal expenses to which he may be subject as a result of the suit ..."
Moreover, for a governmental employer to be held responsible there must be some direct, detailed or daily supervision over the employee, State v. District Court of the Thirteenth Judicial District (1976), 170 Mont. 15, 550 P.2d 382. Here the primary defendants are the school authorities. Plaintiff has joined a multitude of other defendants in her claim including the County of Valley and Jones, the psychologist at the Eastern Montana Regional Mental Health Center. If subsequent discovery or evidence adduced at trial reveals that some of the defendants had no such close connection with the governmental employees, they should be dismissed from the suit on appropriate motions.
For the above reasons, I concur in the result.
SHEEHY, Justice, dissenting:
We are faced here with a difficult public policy determination, whether courts should entertain claims based on these or similar facts. The District Court concluded that they should not, and I agree. The underlying public policy considerations are best evidenced by a review of two recent New York cases, Donohue v. Copiague Union Free School Dist. (1979), 391 N.E.2d 1352, 418 N.Y.S.2d 375, 47 N.Y.2d 440; and Hoffman v. Board of Ed. of City of N.Y. (1979), 400 N.E.2d 317, 424 N.Y.S.2d 376, 49 N.Y.2d 121.
Donohue involved a situation where a high school graduate sued a school district for alleged educational malpractice and negligent breach of a constitutional duty to educate. Plaintiff had received a high school diploma despite being unable to comprehend written English on a level sufficient to enable him to complete an application for employment. There, the Court of Appeals of New York held first, that the constitutional claim must fail because no duty was ever intended to flow from the applicable constitutional provision to individual pupils. As to the educational malpractice claim, the unanimous court held that, although a complaint might on the pleadings state a cause of action within traditional notions of tort law, it violates public policy for the courts to interfere with the judgment of those responsible for the implementation of educational policies. The court went on to state that "this is not to say that there may never be gross violations of defined public policy which the courts would be obliged to recognize and correct."
Hoffman involved a fact situation much more similar to the one at bar. A kindergarten student with a speech defect was tested and determined to be mentally retarded. (IQ 74.) Accordingly, he was placed in a class for children with Retarded Mental Development (CRMD), where he remained for the next twelve years. The original testing psychologist, unsure of his findings because of the student's communicative problems, had recommended reevaluation within the first two years. Achievement tests, but no IQ tests, were administered regularly over those 12 years. In two of those years, Hoffman received a 90 percentile rating in reading readiness, but otherwise was considered to be making little progress.
At age 18, he transferred to an Occupational Training Center, where it was discovered that his IQ was actually 94. Since his training at the Center depended on his retarded status, Hoffman was forced to withdraw, and suit was brought against the Board of Education. The suit alleged negligence in the Board's original assessment, in their failure to retest, and in their subsequent misclassification.
*430 In a 4 to 3 decision, with two of the dissenters having been in the majority in the Donohue case decided 6 months earlier, the Court reversed the lower court which had affirmed, as to liability, a $750,000 judgment for the plaintiff. The majority relied primarily on Donohue in stating that courts may not substitute their judgment "for the professional judgment of educators and government officials actually engaged in the complex and often delicate process of educating the many thousands of children in our schools." The court also decided that even under these circumstances, there were no "gross violations of public policy."
Similar reasoning is found in an earlier California case, Peter W. v. San Francisco Unified School District (1976), 60 Cal. App. 3d 814, 131 Cal. Rptr. 854. The California Court of Appeal was faced with a claim similar to that presented in Donohue. After a lengthy discussion of the duty of care involved, the court concluded: "To hold them to an actionable `duty of care,' in the discharge of their academic functions, would expose them to the tort claims real or imagined of disaffected students and parents in countless numbers. They are already beset by social and financial problems which have gone to major litigation, but for which no permanent solution has yet appeared. (Citing cases.) The ultimate consequences, in terms of public time and money, would burden them the society beyond calculation."
The same California court employed the same reasoning in disposing of a later case of alleged improper remedial training. In Smith v. Alameda Cty. Soc. Serv. Agency (1979), 90 Cal. App. 3d 929, 153 Cal. Rptr. 712, one aspect of the plaintiff's complaint against the school district was his negligent placement in classes for the mentally retarded under circumstances where the district allegedly knew or should have known that he was not retarded. After citing and distinguishing several cases that are also cited by appellant here, the court stated:
"None contains the slightest implication that a school district may be held liable in money damages for negligently placing a student in mentally retarded classes." 153 Cal. Rptr. at 719.
The most recent case our research has discovered is D.S.W. v. Fairbanks No. Star Bar. Sch. Dist. (Alaska 1981), 628 P.2d 554, wherein an action was brought to recover against a school district for negligent classification, placement, or teaching of students suffering from dyslexia. Citing Peter W., Donohue, Hoffman, and Smith with approval, the Alaska Supreme Court went on to state the following, and I agree:
"In particular we think that the remedy of money damages is inappropriate as a remedy for one who has been a victim of errors made during his or her education. The level of success which might have been achieved had the mistakes not been made will, we believe, be necessarily incapable of assessment, rendering legal cause an imponderable which is beyond the ability of courts to deal with in a reasoned way." 628 P.2d at 556.
Further, several United States Supreme Court cases have vitiated lower court decisions which found the unintended stigmatization from inaccurate assessment or placement to be an actionable constitution violation. A plaintiff seeking to allege deprivation of his liberty interest without due process of law on account of a special placement program should be required to plead and prove an untrue, derogatory publication which seriously stigmatized him in the community, coupled with an expulsion or exclusion comparable to a discharge of an employee. See Codd v. Velger (1977), 429 U.S. 624, 97 S. Ct. 882, 51 L. Ed. 2d 92; Bishop v. Wood (1976), 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684; Paul v. Davis (1976), 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405; also 45 Missouri Law Review 667, 696 (1980).
I would affirm the District Court.
HARRISON, Justice.
I concur with the foregoing dissent.
WEBER, Justice, dissenting:
I concur in the foregoing dissent of Justice Sheehy. In view of the difference of opinion expressed by the members of this *431 Court, and because of the potential for claims by disaffected students and parents in countless numbers, I suggest that the legislature properly may consider whether it desires to impose an appropriate limit in this type of litigation. | 01-03-2023 | 06-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319191/ | 649 P.2d 218 (1982)
WYOMING STATE TREASURER, ex rel. WYOMING WORKER'S COMPENSATION DIVISION, Appellant (Objector-Defendant)
Burch Trucking, Inc., (Defendant-Employer),
v.
Denise SCHWILKE, on Behalf of Shelby SCHWILKE, Deceased, Appellee (Claimant-Employee).
No. 5690.
Supreme Court of Wyoming.
August 6, 1982.
Rehearing Denied August 18, 1982.
*219 Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Allen C. Johnson, Senior Asst. Atty. Gen., and Carl Hildebrand, Asst. Atty. Gen., Cheyenne, for appellant.
Burton W. Guetz, Casper, for appellee.
Before ROSE, C.J., and RAPER, THOMAS, ROONEY and BROWN, JJ.
ROSE, Chief Justice.
This is an appeal from an order of the district court awarding the appellee widow-and-children benefits under the Wyoming Worker's Compensation Act. In its appeal,[1] the State argues that the trial judge was without authority to make the award because the criteria of § 27-12-603(b), W.S. 1977 have not been satisfied.[2]
The State Treasurer argues that the evidence introduced by Mrs. Schwilke was insufficient to establish that her husband's heart attack was directly caused by exertion or stress clearly unusual to or abnormal for workers in that employment.
We find that the evidence introduced in the trial court was more than adequate to support the award and will affirm.
FACTS
On March 14, 1981 appellee Denise Schwilke's husband, Shelby Albert Schwilke, died on the jobsite as a result of a severe heart attack. At the time, Mr. Schwilke was 37 years old and was employed as a truck driver for Burch Trucking, Incorporated. Just prior to his death the deceased had loaded some oilfield equipment onto his truck during which time he had complained of pain and mentioned to a companion that he thought he had suffered a heart attack the previous night. This person suggested that Schwilke obtain medical attention, to which Mr. Schwilke replied, "truck drivers don't have time to go to a doctor." A few minutes later Mr. Schwilke met the same person at a nearby office, at which time Schwilke fell to the floor, expiring almost instantaneously.
Appellee Denise Schwilke brought an action seeking widow's and children's benefits under the Wyoming Worker's Compensation Act. The employer, Burch Trucking, Incorporated, contested the claim on the grounds that Shelby Schwilke's fatal coronary attack was not compensable under § 27-12-603(b), W.S. 1977.
A hearing was held February 17, 1982, during which the appellee introduced the testimony of Dr. Allan L. Mattern. Dr. Mattern testified that in his opinion the deceased had suffered a myocardial infarction sometime within the 24-hour period *220 preceding his death and that the physical exertion which occurred just prior to death was "the most likely" circumstance which actually caused the event. The doctor also expressed the opinion that physical exertion, mental or emotional stress and smoking are also factors affecting the likelihood of heart disease or heart attacks. This evidence had reference to Denise Schwilke's previous testimony that her husband had been under excessive stress for several weeks preceding his death, which stress had been occasioned by mechanical difficulties he had experienced with his truck together with increased work schedules.[3] In concluding, Dr. Mattern expressed an opinion that these stress conditions, together with the driving activity of the deceased, could have contributed to the attack but the doctor believed that the physical exertion attendant upon the loading of the truck just prior to death was the likely immediate causative incident.
The deceased's employer, Jim Burch, testified that the activities undertaken by Shelby Schwilke prior to his death were in no sense unusual or abnormal. He also said that he was not aware of any personal or job-related problems which might have been bothering Mr. Schwilke.
Following his review of the evidence, the trial judge, in a letter opinion filed on February 24, 1982, concluded that the appellee's claim should be granted. It was his decision that the medical testimony was sufficient to establish that the lifting and booming down of the equipment on March 14, 1981 was a cause of the deceased's attack and the deceased's continued physical exertion after developing heart-attack symptoms was such an unusual, stressful work condition as is contemplated by § 27-12-603(b), supra n. 2.
DOES THE EVIDENCE ESTABLISH A COMPENSABLE INJURY UNDER § 27-12-603(b)?
As noted previously, § 27-12-603(b) outlines the criteria according to which an employee or his dependents can receive compensation for a work-related coronary condition. To paraphrase its provisions, the section requires that, before compensation will be authorized, the employee must satisfactorily show a direct connection between the cardiac circumstance and the work condition and even then, the compensation will not be forthcoming unless it is further established that the causative exertion amounts to an unusual or abnormally stressful work condition. Additionally, it must be shown that the cardiac condition manifested itself within four hours of the causative exertion. See § 27-12-603(b), supra n. 2. Against these requirements, we must determine whether the record substantiates the award granted to the appellee in this case.
On several previous occasions we have been faced with questions similar to the one posed by the appellant here. In discussing these questions previously we have established rules of law concerning recovery of worker's compensation benefits for coronary conditions, which rules are applicable to the facts here.
In Claim of Vondra, Wyo., 448 P.2d 313 (1968), we upheld an award to an injured worker who had suffered a myocardial infarction while lifting a heavy piece of sheet metal at his place of employment. In that case, the medical expert testified that in his opinion the employee's act of lifting the metal was a causative factor precipitating the attack. Id. at 315. We noted in that opinion the difficulties which a court encounters when faced with heart-attack claims under the Wyoming Worker's Compensation Act:
"* * * In any event, there can be little doubt that the difficulties encountered by courts in their effort to determine whether an accident has been the cause of a worker's heart attack has been responsible for the rule that mere assertion of a reasonably probable contributory work connection with a heart attack by a medical *221 witness cannot justify a compensation award and instead the facts in their totality must demonstrate causality by the greater weight of credible evidence. * *" 448 P.2d at 317.
We also continued in this vein by concluding:
"In view of the matters discussed herein, we think that under any reasonable view the burden of the trial court in determining the causal relationship between a heart injury of a workman and his employment is most difficult. Certainly he cannot be satisfied in discharging this upon less than the preponderance of believable evidence that the work effort contributed in a material degree to the precipitation, aggravation, or acceleration of the existing disease." (Emphasis added.) 448 P.2d at 318.
Applying the rules discussed, we concluded that the record reflected sufficient evidence to permit recovery, given the fact that it is the duty of the trial judge to weigh the expert testimony, and that his conclusions in this respect are not open to review. Thus, although the court had some doubt as to quality and character of the medical testimony, the award was upheld.
Next, in Mor, Inc. v. Haverlock, Wyo., 566 P.2d 219 (1977) we upheld an award of compensation to an employee where he had suffered a myocardial infarction while carrying heavy buckets of cement up flights of stairs at a jobsite. In that case, we determined that former § 27-361(b), W.S. 1957, C. 1967, 1975 Cum.Supp.,[4] adopted the "unusual-exertion rule" as a requirement for recovering worker's compensation benefits for employment-related coronary conditions. 566 P.2d at 221. We then discussed the application of such a test when we said:
"Whether the exertion of work was clearly unusual to, or abnormal for, the individual worker in his particular employment is a question of fact to be determined by the trial court, and its findings will be upheld where supported by substantial competent evidence. See Lentz v. City of Marion, 222 Kan. 169, 563 P.2d 456, 460; and Clayton v. Lease-Way Transportation Corp., Fla., 236 So. 2d 765, 766. Cf. Williams v. Northern Development Co., Wyo., 425 P.2d 594; White v. Maverick Production Co., 63 Wyo. 452, 182 P.2d 818. It should be emphasized, however, that the exertion in question must only be unusual to the employee it need not necessarily be unusual to others engaged in the same employment. Herbert v. Sharp Brothers Contracting Co., Mo. App., 467 S.W.2d 105, 108. See also, Commercial Transfer Company v. Quasny, 245 Md. 572, 227 A.2d 20, 24. To sustain his burden of proof, as to legal causation, the statute requires that the employee show that the causative exertion was clearly something beyond his normal routine something more than the worker's usual work." (Emphasis added.) 566 P.2d at 222.
Upon reviewing the record, we held that the evidence was clearly adequate to support a finding that the employee had suffered his attack under unusual circumstances since he was not normally responsible for both mixing and carrying the cement buckets. The tasks had normally been done with the assistance of hoists and other helpers.
We upheld an award under § 27-12-603(b) in Jim's Water Service v. Eayrs, Wyo., 590 P.2d 1346 (1979), where the employee had died as a result of a heart attack he suffered while attempting to free his truck from a snowbank. We were concerned with the medical testimony establishing the required causative link, but, in holding that it was sufficient to permit an award, we said:
"* * * He [the doctor] declined to say that he could determine to a reasonable medical certainty that the stress caused or precipitated the death and stated that James could have died in his sleep just as easily as on the job. However, he also *222 testified that the stress was a `contributing factor' and that the arrhythmia `very likely' and `probably' was due to the physical exertion and strain. That is sufficient evidence of the causal connection. The question that needs to be answered is whether the work effort contributed to a material degree to the precipitation, aggravation or acceleration of the existing disease and the resulting death. Claim of Vondra, Wyo., 448 P.2d 313 (1968); Claim of Hill, Wyo., 451 P.2d 794 (1969); Claim of Brannan, Wyo., 455 P.2d 241 (1969). See also, 1 Larson, Workmen's Compensation Law, § 12.20, p. 3-276. While it is not a compensation case, this quotation from Rocky Mountain Trucking Company v. Taylor, 79 Wyo. 461, 479, 335 P.2d 448, 453 (1959) is also pertinent:
"`A belief entertained by an expert is a positive opinion about which he is entitled to testify. His belief is not a statement of mere possibility unless the witness so qualifies it.'
"The required nexus between the exertion and stress and the resulting coronary occlusion was found by the trier of fact and is supported by substantial evidence." (Emphasis added.) 590 P.2d at 1349.
The evidence also sustained a finding that in attempting to remove his truck the employee had acted outside the scope of his normal routine. The major impact of our decision in the Jim's Water Service case was that we established a rule which permitted the medical expert to establish causation with a somewhat lesser degree of certainty than may be required in other cases. This rule is consistent with the oft-repeated statement that we will liberally construe the worker's compensation statutes in favor of the injured worker. Wyoming State Treasurer ex rel. Workmen's Compensation Department v. Boston, Wyo., 445 P.2d 548, 551 (1968).
The only situation in which we denied compensation for a worker's coronary condition occurred in Claim of McCarley, Wyo., 590 P.2d 1333 (1979). There the record was totally devoid of any medical testimony establishing the necessary causative link and, in fact, the doctor's statements were supportive of a conclusion to the effect that the employee suffered a heart attack as a result of exertion occurring off the job, far removed from any work-related stress.
It can be observed from the above discussion that, in the past, we have been concerned not only with the requirement that the worker present adequate proof of causation, but also that it be established that the coronary condition arose under circumstances unusual to, or abnormal for the particular employment. Here the appellant is challenging the sufficiency of the evidence as it relates to both of the above requirements established by § 27-12-603(b). In our opinion, the evidence is sufficient to deny the contentions of the State Treasurer in all respects.
We are convinced that a review of the medical expert's testimony satisfies the causation requirement structured by our holding in Jim's Water Service v. Eayrs, supra. We say this because the evidence in this case plainly reflects a belief on the part of the expert that Mr. Schwilke's physical exertion occurring just prior to his death was a contributing and causative event in the fatal heart failure. Testimony such as "most likely" and "contributed to" is of sufficient certainty under the standards established in Jim's Water Service v. Eayrs, supra, and Mor, Inc. v. Haverlock, supra. Also, the record clearly establishes that the fatal coronary condition manifested itself within the four-hour requirement of § 27-12-603(b).
Likewise, we are of the opinion that the circumstances of this case establish that the stressful work condition was unusual to, or abnormal for the deceased's employment. Notwithstanding the fact that the actual physical exertion performed by Mr. Schwilke was within the realm of his normal activity, the record reflects that prior to the performance of these tasks he had experienced heart trouble. Under such circumstances, the once normal activity of his work day indeed became very unusual and abnormal for Mr. Schwilke. Under Mor, Inc. v. Haverlock, supra, 566 P.2d at 222, *223 this is all that need be proven. Other courts have also taken a similar stance namely, that a normal activity can become unusual after the individual has previously experienced heart-attack symptoms. See: 1B Larson's Workmen's Compensation Law, § 38.64(c) (1980 ed.); Thornton v. Alaska Workmen's Compensation Board, Alaska, 411 P.2d 209 (1966); Hanna v. Post & Brown Well Service, 199 Kan. 757, 433 P.2d 356 (1967); Aladits v. Simmons Co., 47 N.J. 115, 219 A.2d 517 (1966) and other cases cited therein.
Our holding here is consistent with our past decisions in this area and supports our policy to construe the compensation statutes in favor of the employee where reasonable and proper. Mor, Inc. v. Haverlock, supra, 566 P.2d at 222. The district court correctly determined that the appellee's claim was compensable under the standards and legislative directives contained in § 27-12-603(b).
Affirmed.
NOTES
[1] The State Treasurer in filing this appeal was acting pursuant to the authority vested by § 27-12-618, W.S. 1977 which provides:
"The director may appeal to the supreme court from any order or judgment in any district court of the state awarding compensation or declining to award compensation although he was not a party to the proceedings in the district court, without the necessity of presenting any petition for reopening of a case to the district court. After the appeal is perfected, the district court shall stay the execution of the order or judgment appealed from without requiring any bond. The attorney general or his assistant shall represent the director in all cases. All the costs of the new hearings granted upon petition of the director and all costs of appeals conducted by the director shall be paid by the general account, except such costs as the court in its discretion shall assess against any of the other parties to the cause."
[2] The pertinent language of § 27-12-603(b) provides:
"(b) Benefits for employment-related coronary conditions except those directly and solely caused by an injury or disease are not payable unless the employee establishes by competent medical authority that there is a direct causal connection between the condition under which the work was performed and the cardiac condition, and then only if the causative exertion occurs during the actual period of employment stress clearly unusual to, or abnormal for, employees in that particular employment, and further that the acute symptoms of the cardiac condition are clearly manifested not later than four (4) hours after the alleged causative exertion."
[3] Mrs. Schwilke explained that her husband had travelled to Oklahoma to deliver some equipment just three days prior to his death and that he had made the return trip to Casper without stopping. This trip involved 20 hours of driving time.
[4] Section 27-361(b) contained almost identical language as present § 27-12-603(b), except that the statute required the coronary condition to have manifested itself within 30 minutes of the alleged causative event. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319197/ | 70 S.E.2d 426 (1952)
235 N.C. 471
HONEYCUTT
v.
CAROLINA ASBESTOS CO. et al.
No. 523.
Supreme Court of North Carolina.
April 30, 1952.
*429 Helms & Mulliss and James B. McMillan, all of Charlotte, for defendants, appellants.
Shannonhouse, Bell & Horn, Charlotte, for plaintiff, appellee.
DENNY, Justice.
The principal question involved in this appeal is whether an employee who is disabled and incapacitated as the result of asbestosis from performing normal labor in the last occupation in which remuneratively employed is entitled to compensation for total disability under the provisions of our Workmen's Compensation Act. G.S. § 97-1 et seq.
The appellants take the position that the plaintiff is not totally disabled within the meaning of the Workmen's Compensation Act, since he is earning more wages as a policeman than he earned as an asbestos worker. They are relying on the case of Branham v. Denny Roll & Panel Company, 223 N.C. 233, 25 S.E.2d 865, 868, and similar decisions, in support of their position. In the Branham case, the plaintiff was found to have 331/3 per cent. or more general partial disability under G.S. § 97-30, and had been tendered and had accepted employment suitable to his capacity as provided for in G.S. § 97-32. His employer did not reduce his wages. The Industrial Commission awarded the claimant compensation at the rate of 60 per cent. of the difference between the wages he was earning before the accident and the wages he was able to earn after the accident "any time it is shown that the claimant is earning less due to his injury by accident within 300 weeks from the date of the accident." Branham appealed from this award contending he was unable to earn his wages. Barnhill, J., in speaking for this Court said: "* * * the capacity to earn wages, is the test of earning capacity, or, to state it differently, the diminution of the power or capacity to earn is the measure of compensability. It follows that, as the claimant is now earning wages in an amount equal to those received by him prior to his injury, he has failed to show any compensable injury or incapacity. However urgently he may insist that he is `not able to earn' his wages, the fact remains that he is receiving now the same wages he earned before his injury. That fact cannot be overcome by any amount of argument. It stands as an unassailable answer to any suggestion that he has suffered any loss of wages within the meaning of the Act."
It must be kept in mind that the above case involved a claim based on disability as defined in G.S. § 97-2(i). This section defines "disability" to mean "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment."
The general provisions of our Workmen's Compensation Act were originally enacted for the purpose of providing compensation for industrial accidents only. The provisions with respect to occupational diseases were enacted later. And while occupational diseases, as well as ordinary industrial accidents, are now recognized as a proper expense of industry, the manner in which disability is brought about by an occupational disease is so inherently different from an ordinary accident, it is sometimes difficult to administer the law with respect to such disease under machinery adopted for the purpose of administering claims growing out of ordinary accidents. Wisconsin Granite Co. v. Industrial Commission, 208 Wis. 270, 242 N.W. 191. In such circumstances it becomes the duty of the courts to give effect to obvious legislative intent. Duncan v. Carpenter and Phillips, 233 N.C. 422, 64 S.E.2d 410.
It is clear that "disability" resulting from asbestosis and silicosis, as defined in G.S. § 97-54, is not synonymous with its meaning as defined in G.S. § 97-2(i). "The term `disablement' as used in this article as applied to cases of asbestosis and silicosis *430 means the event of becoming actually incapacitated, because of such occupational disease, from performing normal labor in the last occupation in which remuneratively employed; but in all other cases of occupational disease shall be equivalent to `disability' as defined in § 97-2 paragraph (i)." G.S. § 97-54. "The term `disability' as used in this article means the state of being incapacitated as the term is used in defining `disablement' in § 97-54." G.S. § 97-55.
In the enactment of the above definitions, we construe the legislative intent to be simply this: In all cases involving industrial accidents and occupational diseases, except asbestosis and silicosis, "disability" means the incapacity to earn wages which the employee was receiving at the time of his injury in the same or any other employment. But "disability" resulting from asbestosis or silicosis means the event of becoming actually incapacitated from performing normal labor in the last occupation in which remuneratively employed.
The appellants concede the evidence in this case supports the finding of "disablement" within the meaning of G.S. § 97-54. However, they contend that such "disablement," when found, is subject to the same test with respect to earning capacity as that laid down in Dail v. Kellex Corp., 233 N.C. 446, 64 S.E.2d 438; Branham v. Denny Roll & Panel Company, supra; and Smith v. Swift & Co., 212 N.C. 608, 194 S.E. 106. In this we do not concur. We think that when an employee becomes incapacitated to work as the result of having developed asbestosis or silicosis, as defined in G.S. § 97-54, it was the legislative intent that he should be compensated as for total disability in accord with the provisions of our Workmen's Compensation Act. Otherwise, the provisions of G.S. § 97-54 are meaningless.
We think the distinction made by the Legislature between asbestosis and silicosis, and other occupational diseases, is significant. An employee does not contract or develop asbestosis or silicosis in a few weeks or months. These diseases develop as the result of exposure for many years to asbestos dust or dust of silica. Both diseases, according to the textbook writers, are incurable and usually result in total permanent disability. The average exposure to asbestos dust before the appearance of the disease is 13.5 years. Attorneys' Textbook on Medicine (3rd ed.) by Gray, page 1418.
Therefore, it would seem that the victims of these incurable occupational diseases constitute a legitimate burden on the industries in which they were exposed to the hazards that produced their disablement. In our opinion, such was the intent of the Legislature. No provision was made for their rehabilitation. Rehabilitation is available only to an employee found by the Industrial Commission to be affected by asbestosis or silicosis but not actually disabled thereby. G.S. § 97-61. However, if in the process of rehabilitation, or thereafter, an employee becomes disabled from asbestosis or silicosis as defined in G.S. § 97-54, within two years of his last exposure to the hazards of asbestosis or silicosis, he would be entitled to ordinary compensation under the general provisions of our Workmen's Compensation Act. G.S. § 97-61; Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797.
The plaintiff should not be penalized because during the time the defendants contest his claim, he has chosen to make his "heart and nerve and sinew serve their turn long after they are gone," rather than apply for public relief as so many are doing these days.
The appellants also except to the finding of the Commission with respect to the "Average Weekly Wage" of the plaintiff. They take the position that the only wage earned by the plaintiff while employed by the defendant, Carolina Asbestos Company, was $36.80 a week as a twister hand. They contend that the Industrial Commission had no right under the provisions of G.S. § 97-2(e), to take into consideration the $53.52 a week the plaintiff earned as a foreman in the plant for 37 weeks during the 52 weeks immediately preceding the date of his determined disability, and while in the employment of Union Asbestos & Rubber Company.
*431 An examination of the record discloses that the Commission determined the average weekly wage of the plaintiff in the exact manner provided by statute, if the change in the ownership of the plant be disregarded. In our opinion, the formula used by the Commission for arriving at the average weekly wage of the plaintiff was not only permissible under the statute, but a proper one in this case. To have limited the average weekly wage of the plaintiff to that earned during the last ten weeks of his employment, would have been unfair to the plaintiff under the facts and circumstances disclosed by the record in this case. And this is true whether the reduction in wages was the result of the plaintiff's impaired physical ability or resulted from the change in ownership of the plant.
The judgment of the court below is, in all respects,
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319208/ | 85 Ga. App. 693 (1952)
70 S.E.2d 163
SMITH et al.
v.
PAYNE, by next friend.
33964.
Court of Appeals of Georgia.
Decided March 19, 1952.
*695 Herbert Kimzey, Weekes & Candler, Smith, Kilpatrick, Cody, Rogers & McClatchey, A. G. Cleveland, for plaintiffs in error.
Ellard & Frankum, Walter P. McCurdy, H. O. Hubert Jr., F. Jack Adams, contra.
TOWNSEND, J.
(After stating the foregoing facts.) 1. Special ground 5 of the amended motion for a new trial complains that the court erred in failing to instruct the jury as to the manner of ascertaining the damages if they should find that the plaintiff was only temporarily injured or disabled; and that the court should have charged that, if the "jury should find that the injuries received by the plaintiff were temporary, they should disregard the probable length of life of the plaintiff, and that in assessing damages for loss of earning capacity by reason of temporary injuries the jury should consider only the loss incurred during the existence of the temporary injuries." The judge charged fully on the measure of damages for loss of earning capacity in the event the jury should find the injuries to be permanent, and in this regard he charged on the mortality and *696 annuity tables. He further charged, as to pain and suffering, that the jury should determine whether it had ceased or would continue into the future, and he charged on impairment of capacity to earn money that the jury should determine whether the injury was permanent. He did not instruct that, in the event the injury was temporary, the jury should not consider the mortality tables. This was held to be reversible error in Western & Atlantic R. Co. v. Knight, 142 Ga. 801 (1) (83 S.E. 943). There was a decided conflict in the evidence as to whether the injuries received were of a permanent nature, one medical witness testifying that in his opinion there had been good union of the broken bone, and that within six months the plaintiff would be able to do any kind of manual work and lead an ordinarily active life. It is error, even in the absence of request, where an issue has been made by the pleadings and evidence as to the permanency of the plaintiff's disability, to fail to give in charge to the jury the method of computing the damages if the injuries were not permanent. Atlantic Co. v. Taylor, 82 Ga. App. 361 (3) (61 S.E. 2d, 204); Seaboard Air-Line Ry. v. Brewton, 150 Ga. 37 (102 S.E. 439); Western & Atlantic R. Co. v. Michael, 42 Ga. App. 603 (8) (157 S.E. 226); Ga. Power &c. Co. v. Wilson, 48 Ga. App. 764 (2) (173 S.E. 220); Powell v. Jarrell, 65 Ga. App. 453 (11) (16 S.E. 2d, 198); Western & Atlantic R. Co. v. Roberts, 144 Ga. 250 (86 S.E. 933); Atlanta, B. & A. R. Co. v. Barnwell, 138 Ga. 569 (75 S.E. 645); Western & Atlantic R. Co. v. Smith, 145 Ga. 276 (88 S.E. 983); Central R. & Bkg. Co. v. Dottenheim, 92 Ga. 425 (2) (17 S.E. 662). In this connection also, it might be pointed out that, while special ground 13 relating to the excessiveness of the verdict is abandoned by the plaintiff in error for which reason it is not incumbent on this court to pass thereon, the foregoing error cannot be held to be harmless on the ground that the verdict in the amount rendered was demanded. Although doubtless authorized, it cannot be said that it was demanded in that sum, and a lesser verdict would have been authorized and might have been rendered but for the error, for which reason a reversal is required. However, other grounds of the amended motion for a new trial will be discussed in order to afford a guide for the future trial.
2. Special ground 4 complains of the court's refusal, on request, *697 to charge the jury as follows: "I charge you, gentlemen, that if you should find that the negligence of the driver of the truck on which the plaintiff was riding was the proximate cause of the injuries of the plaintiff, then the plaintiff cannot recover in this case."
A request to charge must be apt and even perfect, and it is not error to fail to give a request which does not correctly state the principle of law involved. O'Dowd v. Newnham, 13 Ga. App. 220 (10) (80 S.E. 36). As is pointed out by counsel for the defendant in error, the vice of the request here is that it ignores the principle of law that there may be more than one proximate contributing cause of injury (Shermer v. Crowe, 53 Ga. App. 418, 186 S.E. 224); and that, where two or more causes proximately contribute to the injuries complained of, recovery may be had against either one or both of the joint tortfeasors. Consequently, to relieve the defendant of liability, where both the defendant and another were negligent, it must appear that the negligence of the third party was the sole proximate cause of the injury and that the negligence of the defendant did not contribute thereto. Lewis v. Williams, 78 Ga. App. 494, 502 (51 S.E. 2d, 532); Brooks v. Carver, 55 Ga. App. 362 (190 S.E. 389); Southern Ry. Co. v. Blanton, 59 Ga. App. 252 (1) (200 S.E. 471). The charge was not in proper form, and the court did not err in failing to give it for this reason. However, the subject matter of the charge was one of the main issues of the case, and since both the pleadings and evidence made an issue as to whether there was any negligence on the part of the defendant or whether the injuries were caused solely by the negligence of the driver of the truck in which the plaintiff was riding, a correct charge on this subject would have been apt and pertinent. For the reason stated, however, this ground of the amended motion is without merit.
3. Special ground 6 complains of error in the following portion of the charge "If you find in favor of the plaintiff, you will find such special damages as the plaintiff has proved with reasonable certainty. The amount of your award, however, cannot exceed the amount claimed by the plaintiff in his petition" on the grounds that (a) special damages were not defined; (b) the items thereof and sum sued for were not stated; and (c) the items *698 should be limited to necessary expenses. This charge was immediately followed by the words, "Upon the feature of general damages, you will be authorized to find . . such amounts as would fairly compensate the plaintiff for physical and mental pain and suffering." The jury were then told that the elements of damages consisted of physical and mental pain, loss of wages, medical expenses, injury to health, loss of capacity to make a living, and so on. No request was made to define the term "special damages" or to charge more explicitly on this subject, and it does not appear that the jury could have been misled into thinking they could return a verdict based on special damages which had not been proved, or in an amount greater than had been proved. This ground is without merit.
4. Complaint is made, in special ground 7, as to the definition of proximate cause as "that which by a natural and continuous sequence, unbroken by any new cause, produces an event and without which the event could not have occurred," on the ground that it is incomplete and should have been "any new cause of itself sufficient to stand as the cause of the injury." This is, of course, a proper technical definition. See 65 C.J.S. 645; 38 Am. Jur. 695; Southern Ry. Co. v. Webb, 116 Ga. 152 (42 S.E. 395). But the words "unbroken by any new cause," used in this connection, are, we think, sufficient to convey this meaning to the lay mind, and it does not appear that their omission could have confused or misled the jury.
5. Complaint is made, in special ground 9, that the court, after charging that a duty to exercise ordinary care rested upon the defendants, failed to charge that the same duty rested upon the driver of the truck in which the plaintiff was riding. As stated in division 2 of this opinion, the real question as between the defendant and an alleged third party tort-feasor, is whether or not the alleged negligence of the third party constitutes the sole proximate cause of the injuries. The court charged that, for the plaintiff to recover, it must be shown that the defendant "was negligent in one or more of the particulars alleged and that such negligence was the proximate cause of the plaintiff's injury." This correctly presented the applicable law, and the ground is without merit.
6. The court charged in its entirety Code § 68-314, relating *699 to the manner in which motor vehicles may be parked along a State aid road. The defendant contends that this is error, for the reasons that the exceptions stated in the Code section involving passenger vehicles discharging passengers, or temporary stops reasonably incident to traffic conditions, do not apply to the circumstances of this case. Where the court gives in charge an entire Code section, a part of which is inapplicable to the issues, this is not ground for reversal unless it appears that the inapplicable portion was calculated to mislead or erroneously affect the jury in its rendition of the verdict. See Eagle & Phoenix Mills v. Herron, 119 Ga. 389 (46 S.E. 405). The charge here could not reasonably have had a prejudicial effect.
7. The complaint in special ground 11, that the court did not sufficiently charge on the defendant's contentions, is negatived by examination of the charge; the court, having stated the affirmative contentions of the plaintiff, stated that some of these were admitted and others denied, stated the affirmative contentions of the defendant, and then instructed the jury that they would have the pleadings with them and would be at liberty to read them for a more complete elaboration of the case. The contentions were sufficiently stated in the absence of request for a more full and complete charge.
8. The court charged the provisions of Code (Ann. Supp.) § 68-316 (a), providing for the equipment of motor vehicles with front headlights having an efficient range of 500 feet and rear lights having a range of at least 200 feet, but did not charge the provisions of Code § 68-302, providing for "lamps clearly visible for a distance of not less than 100 feet from the front and rear." As between these two statutes (assuming that they are both of force), there is no doubt but that, as to the range of vision of headlights, the provisions of the former supersede those of the latter. The statute charged by the court is the one most favorable to the defendants. The court further did not charge the provisions of Code (Ann. Supp.) § 68-317 (a) and (c) relating to the use of reflectors in addition to lights. There is nothing in the pleadings or evidence regarding reflectors. A charge on this subject would have been unauthorized. The assignments of error in special ground 12 are therefore without merit.
9. Special ground 14 complains of the court's excluding the *700 answer of a doctor attending the plaintiff to the following question: "Did Mr. Jordan make any arrangements about his hospital bills?" This is contended to be error because Jordan may have had sufficient employees to come under the provisions of the Workmen's Compensation Law, and the plaintiff may have been entitled to recover thereunder for a part of his medical expenses. The plaintiff is not required to proceed for workmen's compensation. He is entitled to recover against these defendants for any injuries which he sustained, which would include his hospital and medical expenses.
In grounds 15 and 16, complaint is made that the court did not allow witnesses to testify as to statements made by the employer that the injuries of the plaintiff were due to the negligence of the driver of his truck, rather than the negligence of the defendant's driver. The evidence shows that the employer was not present at the time of the collision, but arrived some time after the occurrence and had no primary knowledge of who was to blame. Such a statement obviously was hearsay and in no event would have been binding on the plaintiff here.
Special ground 17 complains that the court refused to allow a witness for the defendant to testify as to what statement if any he heard a witness for the plaintiff make within the course of a few minutes after the occurrence. The witness in question, Paul Nunnally, was a witness for the plaintiff, and while on the stand the foundation for his impeachment by such questions was not laid by first asking Nunnally if he had made the statements which counsel for the defendant sought to prove by a subsequent witness used in behalf of the defendant. Such foundation for impeachment by proof of contradictory statements is essential. Penn v. Thurman, 144 Ga. 67 (86 S.E. 233); Eugee v. State, 159 Ga. 604 (126 S.E. 471). These assignments of error are without merit.
For the reasons set forth in division 1 hereof, the trial court erred in denying the motion for a new trial as amended.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319223/ | 649 P.2d 1232 (1982)
103 Idaho 476
D.R. CURTIS COMPANY, a Corporation, Plaintiff-Appellant,
v.
Norman MASON, Defendant-Respondent.
No. 13629.
Court of Appeals of Idaho.
August 17, 1982.
William Parsons, Parsons, Smith & Stone, Burley, for plaintiff-appellant.
Harry Turner, Twin Falls, for defendant-respondent.
WALTERS, Chief Judge.
In this action we address the question whether negotiations for the sale of spring wheat show an agreement sufficient to constitute a contract for sale of goods under Idaho's Uniform Commercial Code.
D.R. Curtis Company sued Norman Mason in magistrate court to recover $4,140 for the breach of an alleged oral agreement to sell 9,000 bushels of spring wheat. After trial, the magistrate ruled that there was no oral agreement for the sale of the wheat and granted judgment to Mason. On appeal, the district court affirmed the magistrate's decision. Curtis Company now appeals the determination of the district court. We affirm.
Norman Mason telephoned Curtis Company in April 1978 to inquire about the company's advertisement in a local newspaper, promoting soybean production in the Magic Valley area. He spoke with Bob Mai, a grain broker employed by Curtis Company. *1233 The two discussed the soybean market, and then the conversation switched to a discussion of Mason's spring wheat crop. Mai informed Mason of the current wheat market price and Curtis Company's commodity market contract procedure. Mason had already planted that year's spring wheat crop on previously unplanted acreage and he was not certain how productive the land was. He was curious about Curtis Company's contracting procedure whereby a crop was purchased in the spring before a farmer knew what his harvest would be. Mason had always sold his grain after harvest. Mason told Mai he might be interested in contracting to sell his spring wheat crop.
From the information Mason gave Mai about his acreage, Mai defined the terms of an agreement to purchase Mason's crop price, purchaser's responsibility to pay freight and ship the commodity to Portland, Oregon, delivery date in August or September, and a quantity of 9,000 bushels. Mason asked to see Curtis Company's contract form, and Mai said that he would mail him one. Following the telephone conversation, Mai apparently contacted a purchaser of grain and sold 9,000 bushels of spring wheat, which he believed he had just purchased from Mason by oral agreement.
Mason received a written "confirmation memorandum" signed by Mai, as agent for Curtis Company, a few weeks later. He read the memorandum, but did not fully understand the delivery terms. When he read the 9,000 bushel figure, he decided he could not comply with this quantity provision and did not wish to further negotiate a sale to Curtis Company. He placed the memorandum in the glove box of his pickup, disregarding it until later that summer when another agent of Curtis Company visited him to inquire about a "contract". Mason testified that he never felt he had a contract with Curtis Company.
At the bottom of the memorandum is a clause stating that, "[i]t is understood that the retention of this confirmation without notifying us of error therein, is an acknowledgment and acceptance of contract as above." Mai did not contact Mason again after the original phone call. Apparently, other Curtis Company agents did discuss the "contract" with Mason, but he never expressed his assent to a sale of his wheat to any of them. Finally, in late September, after Mason had received phone calls from Curtis Company agents threatening suit for breach of contract, he returned the one-page memorandum to the company with "Not Accepted" penned on the back side. Curtis Company filed suit.
Both at trial and on appeal, the parties dispute whether there was a contract between them, and, if so, whether the "confirmation memorandum" satisfied the statute of frauds for sale of goods at a price of $500 or more.[1] In regard to the memorandum their arguments focus on the question whether Mason, a farmer who raises and markets the crops he grows, is a merchant within the meaning of the Idaho version of the Uniform Commercial Code,[2] and whether the "merchant" provision of the statute of frauds[3] is applicable. The trial judge resolved the issue of whether there was an *1234 agreement between the parties, by finding that there was not. Therefore, he concluded it was unnecessary to address the statute of frauds issue. We agree.
Under I.C. § 28-2-204(1), to determine whether there is an enforceable contract, the trial court must find that the circumstances of the case, including the parties' conduct, are "sufficient to show agreement." See Paloukos v. Intermountain Chev. Co., 99 Idaho 740, 743, 588 P.2d 939, 942 (1978). Proper formation of a contract for the sale of goods does not require that all terms must be settled. One or more of the terms may be left open and the agreement would not fail for indefiniteness; but the parties must intend to make a contract. I.C. § 28-2-204(3).
In this case, the telephone discussion indicates that both parties were interested in making a contract for the sale of goods. Indeed, Mai apparently felt that an agreement to contract was reached or he would not have sold 9,000 bushels relying on the purchase. But Mason had never before contracted to sell unharvested grain. The evidence shows that he did not agree during the telephone conversation to sell his wheat at that time. Rather, his intention was to explore the possibility of a sale after some thought and a review of the contract form he expected Mai to send him. The trial court found from the facts of this case that an oral agreement was never reached. There is substantial and competent evidence to support that determination. We will not disturb it on appeal. I.R.C.P. 52(a); Cougar Bay Co. v. Bristol, 100 Idaho 380, 597 P.2d 1070 (1979).
A party cannot state an agreement to purchase goods on his own terms, and thereby unilaterally form a contract. The seller must agree to sell the goods. Sending a memorandum of confirmation of purchase does not create an enforceable contract unless there existed a previous oral agreement to be confirmed. I.C. §§ 28-2-201, 28-2-204. This is true notwithstanding an unconditional statement upon the written confirmation form noting that failure to return the form would be deemed an acceptance of the contract. No language in a "confirming memorandum" can create an agreement that did not previously exist. See I.C. § 28-2-201. No such agreement existed in this case.
The judgment of the district court which affirmed the judgment of the magistrate is hereby affirmed. Costs to respondent.
BURNETT and SWANSTROM, JJ., concur.
NOTES
[1] I.C. § 28-2-201(1) provides:
"Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought...."
[2] I.C. § 28-2-104 provides:
(1) "Merchant" means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction....
(3) "Between merchants" means in any transaction with respect to which both parties are chargeable with knowledge or skill of merchants.
[3] I.C. § 28-2-201(2) provides:
Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within ten (10) days after it is received. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319211/ | 221 S.C. 291 (1952)
70 S.E.2d 349
LIPSEY
v.
LIFE INS. CO. OF GEORGIA.
16605
Supreme Court of South Carolina.
March 24, 1952.
*292 Messrs. Bailey & Buckley, of Charleston, for Appellant.
*293 Messrs. S.S. Seideman and Morris D. Rosen, of Charleston, for Respondent.
March 24, 1952.
OXNER, Justice.
*294 On September 16, 1947, the Life Insurance Company of Georgia, pursuant to application dated August 21, 1947, issued a policy of insurance for $1,000.00 on the life of Madison A. Lipsey in which his son, Robert Lee Lipsey, was designated as beneficiary. The insured died on November 24, 1947. The Company denied liability and offered to return to the beneficiary all premiums paid. He declined to accept them and on June 17, 1948, brought this action in the Civil and Criminal Court of Charleston to recover the face amount of the policy, with interest. The only defense interposed by the Company was that the policy was procured by false representations. At the conclusion of the testimony, the Company made a motion for a directed verdict, which was refused, and the jury returned a verdict in favor of the beneficiary. Thereafter the Court refused a motion for judgment non obstante veredicto. The Company appealed to the Court of Common Pleas for Charleston County. That Court affirmed the judgment of the Civil and Criminal Court. This appeal followed.
Among other information given in the application signed by the insured was the following:
"Name all symptoms, diseases or disorders for which you have consulted a physician or other practitioner during the last five years. Give dates and particulars. If none, so state.
"Yes, Malaria 1945. Dr. Wild, N. Charleston, S.C.
"Have you ever had a surgical operation, or been a patient in a hospital or sanitarium? If so, explain fully.
"No."
* * *
"Have you ever had gall bladder or kidney disease or colic, indigestion, or ulcer of the stomach or duodenum, or syphilis?
"No.
"Have you had any disease, impairment or deformity, or have you consulted a physician or other practitioner for any cause not mentioned above? Explain. *295 "No.
"Are you now in good health?
"Yes."
The Company claims that the information given in the foregoing answers was false and that said statements were made with the intent to deceive and defraud the insurer. The only evidence offered in support of this defense was that of Dr. Steinberg, the pertinent portion of which is as follows:
"Q. Will you state whether or not you had occasion to have Mr. Madison Lipsey under your treatment in 1943? A. Yes, I did.
"Q. Where was he living? A. North Charleston.
"Q. Did you attend him for an illness in 1943? A. Yes, sir.
"Q. Did you have to hospitalize him? A. In 1943, yes, sir.
"Q. Give us a report of your findings.
* * *
"A. Mr. Lipsey was under my care in the hospital for malaria proper and incidentally syphilis.
* * *
"Q. In regard to syphilis, what did you have down as to that? A. Yes, he had syphilis.
"Q. You have your notes? A. Yes.
"Q. What was your diagnosis finally? A. Malarial fever and syphilis tertiary.
"Q. What is that? Syphilis has three stages; primary, where you have original lesions, usually some sores. Secondary, if untreated, in about six to twelve weeks, which may have a form of a rash or sore throat. Tertiary is anything beyond secondary syphilis, it is syphilis that has gone beyond the primary and secondary stages.
"Q. This syphilis was in its third stage? A. Tertiary, yes, third stage.
"Q. What type of treatment did you give him at that time?
*296 "The Court: That is not important.
"Q. Did you advise the patient of that? A. The patient was cognizant of the fact.
"The Court: He asked you whether you advised him? A. Yes, sir.
"Q. You so treated him for that? A. In a fashion."
"Cross Examination
"By Mr. Seideman:
Q. Now I ask you this; at the time Mr. Lipsey was in St. Francis Hospital he was with a severe case of malaria? A. Yes, sir.
"Q. So much so he had high fever? A. Yes, sir.
"Q. So much so that he perspired very freely? A. Yes.
"Q. Just advise me, isn't it true and a fact that in severe cases of malaria if a Wassermann test is taken they will show positive? A. Correct.
"Q. When a Wassermann is taken, for Syphilis, it can return positive for other reasons than syphilis? A. Yes.
* * *
"Q. What was the last year that you saw him? A. I saw him in 1943.
"Q. That was the last, when he was in the hospital for about seven to ten days? A. Yes."
When the insured applied for this insurance, he was 56 years of age and appeared to be in good health. At that time he and his son ran a fishing camp at Wilson's Landing, Pineville, S.C. On the day after the application was signed, insured was examined by a physician selected by the Company, who found nothing wrong with him. Among other information given in the report of the medical examiner is the following:
"Does applicant's appearance indicate health and vigor?
"Yes.
"Has the applicant ever had syphilis or other venereal disease?
"No."
*297 On trial of the case this physician said that he had no independent recollection of examining insured, but that he "must have been passable because I recommended him and he was accepted." He further testified that if he had known that insured had ever had syphilis, he "would have gotten a blood test."
There is no testimony showing that insured was ever treated for syphilis after 1943, or that he had this disease at the time of making application for the insurance. Nor is there any showing that syphilis contributed in any manner to insured's death. The cause of death is given in the death certificate as "cirrhosis of liver". The Company offered no testimony to the effect that if they had known that the insured had syphilis in 1943, the policy would not have been issued, or that such fact would have increased the risk.
We shall first discuss the question as to whether the Court erred in refusing the Company's motion for a directed verdict upon the ground that the undisputed testimony showed fraud and deceit as a matter of law. (It is not claimed that the statements in the application constituted warranties.)
We have just had occasion recently in the case of Reese v. Woodman of World Life Insurance Society, S.C., 69 S.E. (2d) 919, to discuss the elements necessary to be shown in order to avoid a policy on the ground of false statements in the application. There is no necessity to again review our decisions relating to this subject. It is sufficient to say that it is incumbent upon the insurer to show not only that the statements complained of were untrue but, in addition, "that their falsity was known to the applicant, that they were material to the risk and relied on by the insurer, and that they were made with intent to deceive and defraud the company." Johnson v. New York Life Insurance Co., 165 S.C. 494, 164 S.E. 175, 176.
With reference to the failure of insured to disclose that he suffered an attack of malaria in 1943 and was confined to a hospital for approximately a week, *298 it cannot be said as a matter of law that this was material and made with intent to defraud the Company. The fact that insured frankly stated in his application that he had been treated for malaria in 1945 by Dr. Wild is a strong circumstance tending to show that there was no intention on his part to fraudulently conceal from the insurer the fact that he had had malaria. If the Company concluded, as it evidently did, that such an illness suffered in 1945 was not material, it might well be concluded by the jury that the failure to disclose a similar illness in 1943 was likewise not material. "The question of the materiality of the statement with regard to the risk involved is a relevant matter for consideration in determining whether a false answer was made with intent to deceive." Evans v. Penn Mutual Life Insurance Co. of Philadelphia, 322 Pa. 547, 186 A. 133, 138.
We next consider the claim that the insured fraudulently concealed the fact that he had syphilis in 1943. While Dr. Steinberg was of opinion that in 1943 insured was suffering from the third stage of syphilis, he admitted on cross examination that the result of any Wassermann test given while a patient is suffering from a severe case of malaria may not be accurate. Insured is dead and the beneficiary is not in a position to explain his negative answer to the question of whether he had ever had syphilis. He may have doubted the diagnosis of Dr. Steinberg and upon recovery from his attack of malaria, had a further examination which showed that he did not have this disease. As stated in Wingo v. New York Life Insurance Co., 155 S.C. 206, 101 S.E. 653, 656, "A court, on a motion for nonsuit, is not warranted to say that an applicant was bound at his peril to believe in a diagnosis of his ailment." But assuming that he had syphilis in 1943, the treatment administered by Dr. Steinberg may have been successful. At least there is no evidence that insured was ever again treated for this disease and the report of the medical examiner is some evidence that he did not have it at the time he applied *299 for this insurance. It is not claimed that syphilis in any way contributed to his death. Nor is there any showing that if he had this disease in 1943, this fact would have enlarged or increased the risk. Under these circumstances, we cannot say as a matter of law that the policy should be avoided upon the ground that the insured falsely stated that he never had syphilis.
The only other question raised by the exceptions is that the Court erred in charging the jury that the insurer may waive its right to avoid a policy on the ground of misrepresentations. The instructions given the jury were in accord with the well established rule in this State, "That the examination of an applicant for insurance, who is afterwards accepted by a physician selected by the insurer, is some evidence of one of two things: (1) That a disease which would have prevented the policy from being issued did not exist; or (2) that its existence was known and waived by the insurer, unless the physician's failure to discover a disease of the insured was due to the fraud of the applicant." Crumel v. Metropolitan Life Ins. Co., 179 S.C. 338, 184 S.E. 169, 172.
The correctness of the foregoing general principle is not challenged. The complaint is that it is not applicable to the facts of this case. We think it is. If insured had syphilis when he applied for this insurance, it cannot be said as a matter of law that the failure of the medical examiner to discover the disease was due to the fraud of the insured. This presented an issue of fact for determination by the jury. McLane v. Metropolitan Life Insurance Co., 154 S.C. 366, 151 S.E. 608. Moreover, under the case of Gamble v. Metropolitan Life Insurance Co., 95 S.C. 196, 78 S.C. 875, if there was no evidence supporting the theory of waiver, counsel should have called the attention of the Court to that fact.
Judgment affirmed.
*300 FISHBURNE, STUKES and TAYLOR, JJ., and G. BADGER BAKER, Acting Associate Justice, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319220/ | 209 Ga. 133 (1952)
70 S.E.2d 595
THOMAS
v.
HOLT et al.
17804.
Supreme Court of Georgia.
Argued March 11, 1952.
Decided April 14, 1952.
Rehearing Denied May 14, 1952.
William A. Thomas, for plaintiff.
John E. Verner, Heyman & Abram, and Alston, Foster, Sibley & Miller, for defendants.
ALMAND, Justice.
On August 1, 1949, William A. Thomas filed a suit in equity against Mrs. Caroline H. Holt, which in substance alleged: The defendant, on September 6, 1946, obtained a judgment for permanent alimony in DeKalb Superior Court against Nixon Howell McDougald, whereby the custody of a minor child was awarded to the defendant, and the father was required to pay to the defendant the sum of $30 per month for the support of said child. The defendant represented to the plaintiff that the father was in arrears in the payment of such permanent alimony, and she entered into a contract whereby she employed the plaintiff as her attorney to collect the past-due alimony, and agreed to give him a fee of 50 percent of whatever amount he collected or caused to be collected from the defendant's former husband. Pursuant to such employment, the plaintiff, in his endeavor to collect the past-due alimony, caused extradition proceedings to be taken against the former husband, and went to considerable trouble and expense in his efforts to make the former husband pay said arrearage, and as the result of such labor he received a check for $150, payable to the plaintiff and the defendant, which check he still retains, and recently, by reason of such efforts of the plaintiff, several payments on the past-due alimony, as well as on the current alimony, have been made, and the defendant refuses to account to him for his one-half of the money so received. The defendant has without cause attempted to discharge the plaintiff from his employment, but this was done only after the former husband had made payments on the arrearage of alimony and began to make monthly payments. The prayers of the petition were for an accounting in full, and an order and decree requiring the defendant to specifically perform her contract with the plaintiff and pay him all money due him as the same becomes due each month and the defendant receives payments of alimony; that the plaintiff be awarded judgment against the defendant for $150 damages by reason of stubborn litigiousness and bad faith; and that he have a lien on the check which he holds payable to the order of himself and the defendant.
The defendant filed a general demurrer to the petition, one ground being that the contract upon which the plaintiff sues was void as being contrary to public policy. The demurrer was sustained, and the case is here on a bill of exceptions assigning error on such order. Held:
1. Courts of equity will not enforce a contract if it is of such character as contravenes the policy of our law. Stricker & Co. v. Tinkham, 35 Ga. 176 (3) (89 Am. D. 280).
2. The purpose and intent of the provisions in Code §§ 30-207 and 30-215 is to relieve the father of his common-law liability to support his minor child or children, and substitute therefor a liability by virtue of a court decree, whereby he is required to contribute a specified amount at fixed intervals to the person having the custody of such child or children, and that the person receiving such amounts should use them for the support and maintenance of such child or children. Where an award is made in favor of a wife for permanent alimony in a final decree, to be paid to her by the husband for the maintenance and support of their *134 minor child who is in the wife's custody, upon receipt of each payment she should use the same solely for the benefit of the child. In the receipt and use of such money, she acts as a trustee or guardian of the minor child. Such judgments are enforceable in the name of the mother for the benefit of the child. Code, § 30-208; Jackson v. Jackson, 204 Ga. 259 (49 S.E. 2d, 662).
3. Guardians of the property of wards are trustees, whose powers over the property of their cestuis que trust are defined by law, and among these powers is not included the execution of a contract binding the estate of their wards. Howard v. Cassels, 105 Ga. 412 (31 S.E. 562, 70 Am. St. Rep. 44); Code, § 49-226; Lee v. Leibold, 102 Colo. 408 (79 P. 2d, 1049, 116 A.L.R. 1319.)
4. Where, as in the instant case, custody of the minor child was given to the mother, in a decree for divorce and permanent alimony, and the father is required to make monthly payments of alimony to her for the support and maintenance of the child, the mother has no power or authority to make a contract with an attorney at law whereby she agrees to pay him one-half of whatever sums he collects from the father by virtue of the decree. Such an agreement, being contrary to the policy of the law, is void, and a court of equity will not aid the attorney in attempting to require the mother to account to him for payments she has received from the father since his employment under the alleged contract, or as to any future payments.
5. The contract of employment between the plaintiff and the defendant being void, the plaintiff has no lien or claim against any part of the money order or check in his hands, which represents a payment by the father as alimony for the support and maintenance of the minor child. As to the inapplicability of Code § 9-613 to alimony cases, see Keefer v. Keefer, 140 Ga. 18 (78 S.E. 462, 46 L. R. A. (N.S.) 527.)
6. The instant action being one in which the plaintiff seeks specific performance of an alleged contract, and not one seeking damages by reason of an alleged breach of the contract on the part of the defendant, the plaintiff thereby waives any right to a claim of damages on account of alleged bad faith and stubborn litigiousness of the defendant. Brunswick Co. v. Dart, 93 Ga. 747 (2) (20 S.E. 631).
7. There was no error in sustaining the general demurrer and dismissing the petition.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
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